The Right to English Health and Social
Services in Quebec: A Legal and
Political Analysis.
Richard Silver”
The right to English health and social services in
Quebec raises important issues in the context of Que-
bec language policy, in that French is the official lan-
guage of Quebec and intended to be the common lan-
guage of all Quebecers. The author first gives an over-
view of language policy in the Quebec and federal
contexts. He then traces the evolution of the right to
English health and social services, enshrined in legisla-
tion in 1986, and its implementation. He next examines
the application of the legislation during a period of
transformation of the Quebec health and social services
system and the degree of respect given the right under a
new government. Finally, he analyzes whether the right
to English services infringes the Charter of the French
language, dealing particularly with the right to work in
French and the issue of signs in the health and social
services sector. The author concludes that the right to
English services has become politicized in recent years
and that lack of political will has prevented the gov-
ernment from fully respecting its obligations under
health and social services legislation.
Le droit de recevoir des services de sant6 et des
services sociaux en anglais soul6ve plusieurs questions
importantes relatives A la politique linguistique quqb.-
coise, en ce qu’elle declare le frangais langue officielle
du Quebec et vise a en faire la langue commune de
l’ensemble des Qu~bcois. Apr s avoir pass6 en revue
les politiques linguistiques f&l6ale et qucb&oise,
l’auteur retrace 1’6volution du droit des anglophones A
recevoir des services sociaux et de sant6 dans leur ]an-
gue, tel qu’il a dt6 formul6 par le legislateur en 1986,
ainsi que sa mise en cuvre. 11 examine la mani~re dont
ce droit a 6t6 appliqu6 dans le contexte des transforma-
tions r~centes du rseau de la sant6 et des services so-
ciaux, ainsi que le respect dont il fait l’objet sons un
nouveau gouvemement. Finalement, il s’interroge sur
la possibilit6 d’un conflit entre le droit de recevoir des
services en anglais et la Charte de la languefranpaise,
notamment en ce qui a trait au droit de travailler en
frangais et aux r~gles r~gissant l’affichage dans les dta-
blissements publics. Lauteur conclut que le droit aux
services en anglais a subi une politisation au cours des
demi~res annies, et qu’un manque de volont6 politique
a emp&M le gouvemement d’assumer pleinement ses
responsabilit s 16gales en vertu des lois relatives A la
sant6 et aux services sociaux.
“Member of the Barreau du Queabec and the Ordre professionnel des travailleurs sociaux du Qu6-
bee. This article is the revised version of an essay prepared for the LL.M. programme in health law of
the Universit6 de Sherbrooke. The author wishes to acknowledge the advice of Professors Nathalie
Vzina and Jos6 Woehrling and the professional inspiration of Roger Prud’homme.
McGill Law Journal 2000
Revue de droit de McGill 2000
To be cited as: (2000) 45 McGill LJ. 681
Mode de r6f~rence: (2000) 45 R.D. McGill 681
682
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 45
Introduction
1. Language Policy and Legislation in the Canadian and Quebec
Contexts
A. The Purpose and Models of Language Policy and Legislation
B. Language Policy and Legislation in Canada and Quebec
1. Federal Language Policy
2. Quebec Language Policy
3. Conflicts between Federal and Quebec Language Policy
II. Evolution of the Right to Health and Social Services in English
(1984-1994)
A. The Campaign for Legal Guarantees to Services in English (1984-
1985)
B. Enshrining the Right to Services in English: Bill 142 (1986)
C. Implementation of the Right The First Access Programs to English
Services (1989)
D. Consolidation of the Right Bill 120 (1991) and Bill 15 (1992)
E. Evaluation of the Right: The Impact on Service Delivery
Il. Reorganization, Service Delivery, and Language Politics: The
Revision of Access Programs to English Health and Social Services
(1994-1999)
A. Reorganization of the Health and Social Services System
B. Language Politics and the Right to English Health and Social
Services
1. The
Interministerial Committee on
Quebec: Le franqais langue commune
the Status of French
in
2. The Parti Quebdcois, the Government of Quebec, and the Attack
on “Institutional Bilingualism”
3. Ministry Intervention and the Consequences: From Nineteen to
Zero in St. Maurice
4. Legal Action as Catalyst
C. Searching for an Understanding
IV. The Right to English Health and Social Services and the Charter of
the French language: Conformity or Incompatibility?
A. The Right to Work in French
1. Application of Section 46 of the Charter of the French language
2. Jurisprudence of the Office de Ia langue frangaise under Section
46 in the Health and Social Services Sector
a. Decisions Rendered prior to Bill 142
b. Decisions Rendered after Bill 142
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
683
3. Effect of the Jurisprudence of the Office de la langue frangaise on
the Ability of Institutions to Provide Services in English
B. English Signs and Internal Communications in the Health and Social
Services Sector
Conclusion
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[Vol.45
Introduction
The right of English-speaking people in Quebec to receive health and social
services in their language was first enshrined in legislation in 1986.’ However, Eng-
lish-speaking Quebecers have received services in English for generations. Indeed, the
English-speaking community founded several of Quebec’s most prestigious hospitals,
including the Montreal General Hospital in 1821 and the Royal Victoria Hospital in
1897. The community also founded many other institutions providing services in
English, including residences for senior citizens and centres for the intellectually and
physically handicapped. Although some remain private, the vast majority today form
part of the public network of institutions funded by the Quebec government and pro-
vide services in both French and English to Quebecers. While many of these institu-
tions are located in Montreal, where the majority of Quebec’s English-speaking
population resides, regions such as the Eastern Townships and Quebec City could also
boast of institutions founded by and still closely linked to the English-speaking com-
munity. Moreover, the public education system, in particular McGill University, has
for many years trained English-speaking health care professionals such as doctors,
nurses and social workers, and physical and occupational therapists to provide serv-
ices to English-speaking Quebecers.
Before the Castonguay reform of the health and social services system in the
early 1970s, the organization of services for the English-speaking community differed
from that of the French-speaking majority.’ On the one hand, services in English re-
flected to a great extent a tradition of individual initiatives, volunteer commitment,
and self-help. Institutions and community organizations relied on financial support
from private corporations and foundations, and on individual gifts and bequests. On
the other hand, the Catholic Church assumed an essential role in founding institutions
providing services to French-speaking Quebecers. However, in the period leading up
to the reform, the provincial government assumed an increasing part in providing and
financing services to both communities.
Following the Castonguay-Nepveu Report, the government created a network of
public institutions for which it assumed all the costs. In Montreal, the network of hos-
pitals, social service organizations, and residences for seniors and the intellectually
and physically handicapped were integrated into the public system. At the same time,
a broad range of community organizations serving the English-speaking community
continued to complement the public sector.
Outside Montreal, the reality was different. While some institutions founded by
and affiliated with the English-speaking community became part of the public net-
‘ An Act to again amend the Act respecting health services and social services, S.Q. 1986, c. 106
‘Rapport de la commission d’enquite sur la santd et le bien-9tre social (Gouvernement du Qu6bec,
[hereinafter Bill 142].
1967-1972) [hereinafter Castonguay-Nepveu Report].
2000] i R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
685
work, the majority of public institutions were French-speaking, staffed almost exclu-
sively by Francophones. Although English-speaking people continued to use local
volunteer-based community organizations, their declining population in many regions
led to fewer services. In many cases, English-speaking people were more comfortable
travelling to Montreal to use institutions, particularly those hospitals historically asso-
ciated with the community, which could offer specialized services in English. Outside
Montreal, the availability of services in English was frequently precarious.
In 1991, 600,595 Quebecers spoke English as their first language (8.7% of the
population) However, in order to calculate the number of English-speaking people
with the potential to seek access to the health and social services system, the Ministry
of Health and Social Services has chosen to categorize the population by first official
language spoken, and quantified the potential number of English-speaking users as
904,298.’ While 500,000 live in the Montral-Centre region, where they comprise
31.68% of the population, English-speaking people reside in each of the adminstrative
regions of Quebec. In eight of these regions, they represent less than 5% of the popu-
lation, while in the remaining regions they comprise between 7 and 30%. Important
concentrations reside in Estrie (23,718 or 9% of the total population), Mont&dgie
(136,430 or 11.5%), Laval (46,183 or 14.8%), the Outaouais (48,315 or 17.5%), and
the Laurentians (29,093 or 7.7%).’ The 1996 census revealed that the population
whose first language is English declined by 0.7% from 1991 to 1996. About 762,000
people spoke English at home in 1996. This number had not changed from 1991.6
It is my intention in this essay to undertake a critical legal and political analysis of
the right of English-speaking Quebecers to receive health and social services in Eng-
lish. Much has changed since Bill 142 in 1986. In 1991, the Liberal government
passed new health and social services legislation, which increased the number of ad-
ministrative regions, conferred on them new responsibilities, put in place a compre-
hensive complaints system, gave the user a greater role in the management of the
system, and provided for mergers of institutions with similar missions: The new law
also affirmed all the provisions guaranteeing the right to services in English. In 1994,
the Parti Queb6cois (“PQ”) defeated the Quebec Liberal Party and assumed power. In
1995, the close result of the referendum on Quebec sovereignty exacerbated tensions
not merely between federalists and sovereigntists, but also, as a consequence of Pre-
3 Quebec, Minist~re de la Sant6 et des Services sociaux, Donnges statistiques sur la population
d’expression anglaise du Qudbec par territoire de CLSC et de RSS pour l’annie 1991 (Gouvemement
du Quebec, 1995) at 6.
4bid at 8.
sbid
‘Statistics Canada, The Daily (2 December 1997) at 3 and 6, online: Statistics Canada
7An Act respecting health services and social services and amending various legislation, S.Q.
1991, c. 42 [hereinafter Bill 120], replacing the Act respecting health and social services, R1S.Q. c. S-
5 [hereinafter Former Health and Social Services Act], now printed as An Act respecting health servi-
ces and social services, R.S.Q. c. S-4.2 [hereinafter Current Health and Social Services Act].
686
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 45
mier Parizeau blaming defeat on “money and the ethnic vote”, between the govern-
ment and Quebec’s ethnic and linguistic minorities. Following the arrival of Lucien
Bouchard as Premier in January 1996, the Quebec government adopted a fiscal policy
designed to eliminate budget deficits, resulting in cuts to the health and social services
system. At the same time, a general restructuring of the health and social services
network placed renewed emphasis on an ambulatory approach (virage ambulatoire) to
health care. More particularly, this led to the merger and closure of some institutions,
together with budget cuts and changing roles for acute-care hospitals and other insti-
tutions. There were broader mandates and some new resources for the Centre local de
services communautaires (“CLSC”) and community sectors as community and out-
patient care complemented an increase in day surgery. In Montreal, as part of these
changing orientations, the government closed seven acute-care hospitals. In January
1999, legal proceedings were instituted against the newly re-elected Parti Qu6b6cois
government to oblige it to respect its obligations under health and social services leg-
islation to approve plans for services in English.
The issue of access to health and social services in English in Quebec is more
than merely academic. It concerns the role of public institutions, funded by the tax
dollars of all Quebecers, and the personnel who work in them. But the issue is most
important for the hundreds of thousands of English-speaking Quebecers who prefer to
express themselves in English when seeking services, and who desire services to be
available in their language where possible. This is not simply capricious. It has been
noted that in times of crisis or when we have something important to express, we re-
vert to the language we know best, our mother tongue. People needing health care or
social services frequently find themselves in situations where expression in a second
language, regardless of their level of bilingualism, impedes communication. Robi-
chaud has expressed this notion eloquently:
Les mots qui nous viendront a la bouche pour exprimer une grande peine, pour
dire Ia joie d’une gu6rison inattendue, pour signifer l’incr6dulit6 devant un
dv~nement impr6vu, ce sont les mots de notre enfance. Les mots qui nous
viennent A l’esprit lorsque nous vivons une grande 6motion, ce sont les mots
li6s aux premieres experiences 6motives v6cues. La raison est bien simple:
l’apprentissage de la langue se fait en m~me temps que la d6couverte des pre-
mieres dmotions qui jalonneront toute notre vie. Les 6motions lies A la peur, A
la douleur, A Ia douceur, A l’amour, A la haine, A l’isolement nous les avons v6-
cues dans notre petite enfance au meme moment oii nous apprenions bL les
nommer. Ainsi, malgr6 le fait que nous ayons appris A maiser d’autres lan-
gues, il apparatt que cette association viscdrale de la langue matemelle et de
l’expression 6motive se vWrifie A maintes occasions au cours de notre vie.”
For Robichaud, language plays a fundamental role in health care:
[E]Ile est un moyen privildgid par lequel les hommes, les femmes et les enfants
6tablissent des liens avec leur environnement. Or, le lien avec 1’environnement
‘J.-B. Robichaud, Le systame de services de sant, Objectif 2000: vivre enfranfais au Nouveau-
Brunswick (Moncton: tditions Acadie, 1986) at 19.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
687
est 6galement un aspect fondamental du domaine de la sant6. C’est ici que se
rejoignent de fagon dynamique langue et sant&9
While much has been written on language policy, the English-speaking commu-
nity in Quebec, and its constitutional rights, there has been little direct emphasis on
the right to health care and social services. Discussion of the issue has been couched
in terms of its compatibility with Quebec’s linguistic policy and the status of French.”
This is partly because access to health and social services, unlike education, is not
governed by the Constitution and has consequently escaped the attention of those who
write on Canadian constitutional law and its effects on official language minorities.”
Moreover, while the Charter of the French language’2 regulates the use of language in
public administration, of which the health and social services network is a part, it does
not deal specifically with the right of access to health and social services in English.
Neither health nor access to health care is considered a fundamental right in the Que-
bec Charter of human rights and freedoms’3 or the Charter.”‘
9 Ibid at21.
‘0 See e.g. Quebec, Ministre de la Culture et des Communications, Le frangais langue commune,
enjeu de la socit4 qudbscoise (Quebec: Comit6 interministdriel sur la situation de la langue fran~aise,
1996) [hereinafter Le frangais langue commune]. For a discussion of the rights of the English-
speaking minority without an emphasis on the right to health and social services, see e.g. R. Rudin,
“Collective Rights, the English-Speaking Minority and the Quebec Government 1867-1988” in D.
Schneiderman, ed., Language and the State: The Law and Politics of Identity (Cowansville, Qc.:
Yvon Blais, 1991) 243; L. Macdonald, “The Experience of the Canadian Linguistic Minority Com-
munity in Quebec” in S. Ldger, ed., Towards a Language Agenda. Futurist Outlook on the United
Nations (Ottawa: Canadian Centre for Linguistic Rights, 1996) 347; and . Woehrling, “La Constitu-
tion du Canada, la lgislation du Que’bec et les droits de la minorit6 anglo-queb6coise” in Minoritds et
Organisation institutionnelle, vol. 2 (Moncton: 40 Colloque juridique international, organized by Le
Centre international de la common law en frangais (CICLEF) de ‘Ecole de droit de l’Universit de
Moncton and Le Centre de droit public de la Facult6 de droit de l’Universit6 Libre de Bruxelles,
1996) 155.
“See e.g. Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, s. 93, reprinted in R.S.C. 1985, App.
IL No. 5; Canadian Charter of Rights and Freedoms, s. 23, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].
‘2 R.S.Q. C. C-l1.
‘3R.S.Q. c. C-12 [hereinafter Quebec Charter].
‘4 However, the Ontario Superior Court of Justice (Divisional Court) recently recognized the con-
stitutional right of a French-speaking minority to retain access to Francophone health services and to
a hospital providing medical training in French. In this case, involving the status of the Montfort Hos-
pital, the only French teaching hospital in Ontario, the court held that administrative measures “must
be measured against the ‘minority protection’ benchmark, one of the fundamental organizing princi-
ples of the constitution:’ The court stated that protection of official language minorities is part of
“unwritten constitutional principles”, and a failure to comply with such principles can invalidate gov-
ernment conduct at odds with them. For the court, these unwritten principles are incorporated by ref-
erence into the Constitution. The undermining of minority rights in a context where health and social
services are involved could thus lead to a violation of the Constitution, even if access to health and so-
cial services itself is not protected in the Constitution. Here the court quashed directives of the Ontario
Health Services Restructuring Commission that could destroy the hospital’s ability to provide truly
688
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[Vol. 45
I shall first review some general issues of linguistic policy and minority rights and
then analyze the relevant legislation, its evolution, and its application. From a legal
perspective, it is my intention to analyze the scope and nature of the legal guarantee to
services in English. Who is entitled to receive services? Which institutions have the
responsibility to provide services in English? Why do some institutions provide serv-
ices in English while others do not? Is there a conflict between health and social
services legislation guaranteeing the right to receive services in English and the
Charter of the French language, particularly those parts dealing with the right to work
in French? What role does the Office de la langue frangaise (“OLF’) play in deter-
mining the range of services accessible in English? Has the guarantee to services in
English increased the range or accessibility of services in English?
From a political perspective, this essay will examine a number of issues. For ex-
ample, if services were already available in English, dispensed by English-speaking
professionals in institutions identified with the English-speaking community, why did
the Quebec government of Robert Bourassa decide to implement legal guarantees to
services? Why did the Parti Quebdcois, then in opposition, refuse to consent to the
law? Have political attitudes changed since the passing of the law? Why did the cabi-
net of the Parti Qu6b6cois government refuse to accept the programs of access to
English services in 1997, after they had already been approved by all regional boards
of health and social services? Why did one regional board, when revising its program
of English services in 1998, decide to reduce the number of institutions named to pro-
vide services in English in its region from nineteen to zero? Finally, why did the gov-
ernment fail to approve new access programs over the course of a mandate of more
than four years and start to do so only after the filing of legal proceedings against it
early in 1999?
This essay will demonstrate that legislation with a linguistic component and poli-
tics are inextricably linked in Quebec. Moreover, we shall see that a relatively simple
administrative process can become a contentious issue, alienating the English-
speaking community from its government, and that a lack of political will can under-
mine the principle of legislative guarantees.
I. Language Policy and Legislation in the Canadian and Quebec
Contexts
Any analysis of the right to English health and social services must be discussed
in the context of Quebec’s language policy and legislation. How does the right to
services in English co-exist with other elements of Quebec’s language policy, exem-
plified by the Charter of the French language, and how can that right be explained in
terms of current theories of linguistic policy? How does language policy affect mi-
Francophone medical services and medical training. The court also referred the question of the re-
structuring of health services at the hospital back to the commission for reconsideration. See Lalonde
et al. v. Health Services Restructuring Commission (1999), 181 D.L.R (4th) 263, [1999] OJ. No.
4488 at paras. 48-50 (Div. CL), online: QL (OJ).
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
689
nority rights? How does Quebec language policy differ from that practised by the fed-
eral government, and where is the right to English services situated in this context?
This part briefly reviews the purpose and models of linguistic policy and their appli-
cation in the Canadian and Quebec contexts.
A. The Purpose and Models of Language Policy and Legislation
Language (or linguistic) policy has been described in this way: “[Le] domaine des
normes sociales visant t planifier et bL am6nager, en principe pour les raisons d’ordre
public, le statut et l’utilisation d’une ou plusieurs langues dans un contexte politique
donn6. ‘ The same author has also described the goal of enacting language policy:
Le but fondamental de toute 16gislation linguistique est de r6gler, d’une fagon
ou d’une autre, les problmes linguistiques qui d6coulent de ces contacts, con-
flits et in6galitds linguistiques [sur un m~me territoire donn6], en planifiant ou
en am6nageantjuridiquement le statut et ‘utilisation des langues en pr6sence,
tout en privil6giant davantage la protection, la d6fense ou la promotion d’une
ou de plusieurs langues nommes, et ce, par le truchement d’obligations et de
droits juridiques 6labords h cette fin.”
A State will enact language policy only in instances of linguistic heterogeneity,
which can lead to problems between different groups on the same territory. In the case
of groups with different languages, their co-existence usually results in the creation of
relationships based on dominance. It has been suggested that there is an antagonism
based on ethnic groups and language just as there is one based on class; the relation-
ship of dominance is the major cause of conflict between these groups and classes.”7
According to Bradn, State intervention through linguistic policies falls under four
main categories:
Pluralism seeks to preserve the identity of language groups within the State.
The State grants these groups a certain latitude in the administration of their af-
fairs. Sometimes this may go as far as the creation of autonomous regions. In-
tegration seeks to bring about the unity of various language groups that make
up the population of a State. By the adoption of special measures, these groups
are allowed to conserve their language. Assimilation tends towards the creation
of a linguistically homogeneous society. Members of the minority group or
groups must then progressively abandon their traditions, their culture and their
l5L Tua, “Quelques considrations sur le droit linguistique” (1986) 27 C. de D. 463 at 464.
16 j. Tri, “Le droit linguistique et les droits linguistiques” (1990) 31 C. de D. 642 at 643 [hereinaf-
ter “Le droit linguistique”]. The historian Ramsay Cook described language policy in Canada some-
what more succinctly: “… an attempt to answer the question: who has the right to use what language,
when and where?” See “Language Policy and the Glossophagic State” in D. Schneiderman, supra
note 10, 73 at 73.
7 A. Bradn, “Language Rights” in M. Bastarache, ed., Language Rights in Canada (Montreal:
Yvon Blais, 1987) 3 at 9.
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MCGILL LAW JOURNAL/REVUE DEDROITDEMCGILL
[Vol. 45
language to adopt those of the majority group. Finally, segregation seeks to
isolate the minority language group and to maintain it in a state of inferiority.8
For Tui, language policy, which can envisage both the official and the non-
official use of language, can have several functions. It can make one or several lan-
guages the “official” language(s) used in communications with government agencies
and administration, or favour the right of individuals to interact with the State in the
language of their choice. It can have as an object the making of one or more lan-
guages the normal and everyday language of people in their work, business, and
communications, or envisage that the language(s) in question respect certain gram-
matical rules and norms, particularly in official or technical domains. Finally, lan-
guage policy can have as its objective the legal recognition of linguistic rights.’9
As language policy can have as its objective one or more of these functions, the
State can intervene to correct perceived problems by favouring one language at the
expense of another and to create rights and obligations by regulating relations be-
tween individuals and the State, between individuals and public institutions, and in
some cases, between individuals themselves. In this way, the State can play a role in
shaping or reinforcing the demographic and socio-linguistic reality in its territory or
jurisdiction, and attempt to shape or change the mentality and behaviour of the popu-
lation.
The philosophies of personality and territoriality represent the two poles of lan-
guage policy. The principle of personality promotes linguistic freedom of choice and
allows the individual to function in the language of his or her choice. Since public
agencies and institutions serving the individual must respond in the language chosen
by that individual, this creates a situation of “institutional bilingualism” in a society
with a majority and a minority language. In such a case, the institution adapts to the
language of the individual and thus maintains the contact and competition between
languages. In contrast, the principle of territoriality requires the individual to adapt to
the public institutions, rather than the other way around. As a result, it puts constraints
on the right of the individual to choose the language of service and attempts to place
the rights of the collectivity above the right of the individual.
S Ibid. at 9-10.
9 “Le droit linguistique”, supra note 16 at 643-47. Turi develops a typology of language legislation
according to its functions-official, normalising, standardising and liberal. It has been noted that lan-
guage policy and legislation may not always have the desired effect. For example, the protection of
individual rights (the right to education or services in the language of the individual) could have the
effect of weakening the social and territorial cohesion of the minority the policy intends to protect.
Moreover, the protection of collective rights (through territorial unilingualism in particular) could
have the effect of restricting possibilities of social, economic or political advancement. See LA.
Laponce, ‘V’amdnagement linguistique et les effets pervers” in . Pupier & J. Woehrling, eds., Lan-
guage and Law, Proceedings of the First Conference of the International Institute of Comparative
Linguistic Law (Montreal: Wilson & Lafleur, 1989) 35.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
691
The proponents of the territorial approach point to socio-linguistic studies indi-
cating that the best way to bring about linguistic stability between two or more lin-
guistic groups within the same political frontiers is to create linguistic enclaves, which
protect the threatened language from competing languages with more economic util-
ity and prestige. Belgium and Switzerland are frequently cited as two democratic
countries that have successfully adopted the territorial approach. Since the application
of the principle of territoriality in those countries has not been considered incompati-
ble with the constitutional protection of the fundamental rights of minorities, it has
even been suggested that this example could be used as sufficient justification to re-
strict the linguistic and cultural rights of Canadian minorities as expressed in section
27 and subsection 15(1) of the Charter.’
Proponents of the territorial approach believe that measures should be taken to
protect the languages in question. Either the dominant language must be reinforced at
the expense of the minority language on a territory, or the language at risk must be
supported in the face of another language that may possess the capacity to overwhelm
it. In the Canadian context, the most extreme argument would hold that guarantees for
minority languages are ineffective and harmful. In discussing the future of official
language minorities, Magnet summarizes the application of this extreme approach as
follows:
The argument is that it is preferable for Canada to divide into two linguistic is-
lands: French in Quebec, English elsewhere. Canadian language policy should
concentrate on reinforcements for French in Quebec, and English in other
provinces. Protections for linguistic minorities should be withdrawn. The faster
linguistic minorities disappear, the more stable will be our political system, the
more rational the relation between Quebec, Ottawa and the other provinces, the
more secure the positions of the English and French languages.”
Magnet criticizes the strict application of the territorial model in the Canadian
context by noting that Canada is not like Switzerland or Belgium. For example, these
two countries are territorially compact, while Canada is territorially diffuse. Canada
must adapt to 970,000 Francophones living outside Quebec and 622,000 people
whose first language is English in Quebec. Magnet notes that this “is a lot of people
(6% of the total Canadian population) to condemn to extinction because they do not
fit in with academic theory.”
Those advocating the promotion of linguistic duality in Canada are faced with the
dilemma that the French-speaking population outside Quebec is scattered, lacking in
institutional resources, and prone to assimilation. Special measures must therefore be
taken to protect and promote this endangered minority if it is to survive and flourish.
Foucher believes that Francophones outside Quebec can choose to use their language
Supra note 11, ss. 15(1), 27; J. Woehrling, “La Constitution canadienne et la protection des mi-
noritds ethniques” (1986) 27 C. de D. 171 at 185.
21 j. Magnet, “The Future of Official Language Minorities” (1986) 27 C. de D. 189 at 191.
22/bid
at 192.
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MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
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only on three conditions: they must have the will to express their choice, the services
sought have to be freely available, and their choice must be legitimate and normal.’
Magnet underlines that a minority can only succeed if it is concentrated in large or
small areas and if it is supported by a meaningful network of services and institu-
tions.’
The legitimacy of linguistic duality in Canada hinges on the continued existence
of Francophone communities outside Quebec and the primacy of French in Quebec. It
is for this reason that some authors have suggested that the best way to reconcile the
interests of the French-speaking majority in Quebec with those of French-speaking
minorities in the rest of Canada is an approach based on “asymmetry”. This model
would have the effect of permitting Quebec to exercise certain powers to protect and
promote French that would not be extended to other provinces where the language of
the English-speaking majority is not threatened. At the same time, this approach could
entail strengthening or promoting the rights of Francophones outside Quebec while
simply maintaining the rights of Anglophones in Quebec. This approach has the ad-
vantage of taking into account the different situations faced by the English-speaking
minority in Quebec and the French-speaking minorities in the rest of Canada, and
would allow Francophones outside Quebec to receive additional linguistic guarantees
because of their special needs.’ This model recognizes that French in Quebec, while
the language of the majority, requires special protection because of the dominant po-
sition of English in North America. In addition, Francophones outside Quebec merit
additional linguistic guarantees if their language is to survive and flourish in “English
Canada”. As we shall see, the federal approach to language policy has been based on
the principle of personality, while Quebec has adopted a model based on territorial-
ism, which has been modified by a number of successful court challenges. This paper
now briefly reviews federal and Quebec language policy and legislation and examines
the conflicts between them.
P. Foucher, “Droits linguistiques: A l’image des cercles concentriques” (1992) 41 U.N.B.LJ. 171.
Supra note 21 at 195.
” See I. Woerhling, ‘La Constitution canadienne et les droits linguistiques: convergences et diver-
gences entre les intdrats des Qub&ois francophones, de la minoritd anglo-quebdcoise et des mi-
noritds francophones du Canada” in S. LUger, ed., Les droits linguistiques au Canada: collusions ou
collisions? (Ottawa: University of Ottawa, 1993) 53 at 79-83. The author points out that a certain
asymmetry already exists in that s. 23(1)(a) of the Canadian Constitution (the universal clause for
education) is inoperative in Quebec until the Quebec government or National Assembly approves it.
See also P. Patenaude, “Les droits linguistiques au Canada. de l’intoldrance A lutopie” (1992) 41
U.N.B.LJ. 159, and B. Pelletier, ‘Les rapports de force entre les majorits et les minoritds de langue
officielle au Canada” (1994) 24 R.D.U.S. 255.
2000] R. SILVER – ENGLISH HEA LTHAND SOCIAL SERVICES IN QUEBEC
693
B. Language Policy and Legislation in Canada and Quebec
1. Federal Language Policy
The language policy of the federal government is exemplified by the Official
Languages Act, passed in 1969 and revised in 1988. ‘ The origins of the legislation
can be found in the creation, in 1963, of the Royal Commission on Bilingualism and
Biculturalism, mandated to report on the state of bilingualism and biculturalism in
Canada and to recommend what steps should be taken to develop the Canadian Con-
federation on the basis of an equal partnership between “the two founding races”. The
Commission found that Francophones outside Quebec had difficulty in surviving or
were in danger of assimilation, that Francophones in Quebec were in a position of
economic inferiority, that Francophones were under-represented in the Public Service
of Canada, and that bilingualism was generally a phenomenon found only among
Francophones.’ The Official Languages Act conferred official and equal status on
French and English within the federal government, and specifically required all fed-
eral institutions to provide services in English and French in the National Capital Re-
gion, regions designated “bilingual”, and other settings where there was “significant
demand” for services. Moreover, the Official Languages Act required all federal
courts and quasi-judicial bodies to be bilingual and documents destined for the gen-
eral public to be published in both official languages. The Official Languages Act also
created the position of the Commissioner of Official Languages to oversee its appli-
cation and act as an ombudsman of official languages.’
In addition to ensuring respect for French and English within the apparatus of the
federal government and to setting out the responsibilities of federal institutions, the
purpose of the Official Languages Act is to
support the development of English and French linguistic minority communi-
ties and generally advance the equality of status and use of the English and
French languages within Canadian society
Equally important are the principles on which the Official Languages Act is
founded. The Preamble acknowledges that French and English are the official lan-
guages of Canada and recognizes the role of the Government of Canada in supporting
official language minorities:
And whereas the Government of Canada is committed to enhancing the vitality
and supporting the development of English and French linguistic minority
communities, as an integral part of the two official language communities of
Canada, and to fostering full recognition and use of English and French in Ca-
nadian society;
2’R.S.C. 1985 (4th Supp.), c. 31.
For a summary of the Commission’s findings, see supra note 17 at 35.
28Supra note 26, Part IX, ss. 49-75.
bid, s. 2(b).
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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And whereas the Government of Canada is committed to cooperating with
provincial governments and their institutions to support the development of
English and French linguistic minority communities, to provide services in
both languages, to respect the constitutional guarantees of minority language
educational rights and to enhance opportunities for all to learn both English and
French.”
The Preamble also recognizes the importance of preserving and supporting the
use of languages other than English and French while strengthening the status and use
of the official languages.
Part VII of the Official Languages Act establishes government policy designed to
advance the use of English and French. Section 41 states that the Government of Can-
ada is committed to
(a) enhancing the vitality of the English and French linguistic minority com-
munities in Canada and supporting and assisting their development; and
(b) fostering the full recognition and use of both English and French in Cana-
dian society.”
Furthermore, the Minister of Canadian Heritage shall take the measures consid-
ered appropriate to advance the equality and use of English and French in Canadian
society.” The federal government has set up a number of initiatives that reflect the ori-
entations of this mandate. These include the support of minority groups in their at-
tempts to obtain provincial recognition of their legal rights and special linguistic
needs, the fostering and financing of minority language education, the right to which
has been constitutionally recognized since 1982, ‘ the learning of English and French
as a second language, and the support of organizations to improve their ability to do
business in both official languages?’
The measures undertaken by the Government of Canada represent a policy of in-
tegration, designed to permit both official language groups to preserve their identity.
The federal government favours an institutional rather than a territorial approach, de-
signed to recognize the equality of French and English in the federal context. The
presence of French-speaking populations across the country requires that the federal
government add an “element of pluralism” to this policy.’ While it seems that the Of-
SIbid.
3′ Ibid., s. 41. It was on the basis of s. 41 that the Commissioner of Official Languages wrote to
Quebec’s Minister of Health and Social Services reminding him of the importance of linguistic inter-
actions between health and social services professionals and patients or clients and expressing the
hope that access to services in English would not be diminished. See Commissioner of Official Lan-
guages, Information Bulletin, vol. 4 no. 3, May 1998.
Supra note 26, s. 43.
“See Charter, supra note 11, s. 23.
& Woehrling, supra note 19, 185 at 190-91.
See S. Beatty, “A New Official Languages Act for Canada-Its Scope and Implications” in Pupier
5 Supra note 17 at 37.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
695
ficial Languages Act was passed, at least in part, to remedy the situation of Fran-
cophones, Quebec Anglophones can also successfully invoke the letter and spirit of
the legislation to benefit from government programs envisaging official language mi-
norities and to call for services in English within the province.
2. Quebec Language Policy
The position of Quebec in Canada is unique in that the vast majority of its popu-
lation is French-speaking. However, although a majority at the provincial level, this
population represents a minority within the Canadian federation. Although English is
the minority language in Quebec, it remains the dominant language both in Canada
and in North America. This dynamic has contributed to periods of tension in Quebec
and has inspired the adoption of linguistic policies and legislation.
While federal legislation has encouraged official bilingualism, Quebec has,
through the passing of the Official Language Act’ and the Charter of the French lan-
guage, attempted to build a society where French is not only the official language, but
also the common language of all Quebecers. The goal, as stated in Qudbec’s Policy on
the French Language in 1977, was clear:
The Qu6bec we wish to build will be essentially French. The fact that the ma-
jority of its population is French will be clearly visible-at work, in communi-
cations, and in the countryside. It will also be a country in which the traditional
balance of power will be altered, especially in regard to the economy 7
This policy noted several factors that required corrective State intervention. First,
demographic analysis revealed that there was a decline in the number of Fran-
cophones in Quebec and a reduction in the weight of Quebec in the Canadian federa-
tion. This was exacerbated by the tendency of immigrants to integrate into Quebec’s
English-speaking minority. Second, the English language dominated the business
world and Francophones frequently had to work in English. Moreover, management
positions were generally occupied by unilingual Anglophones, while Francophones
frequently occupied low-paying jobs. Third, the Canadian federation disadvantaged
Francophones since “English Canada”, for whom the survival of French was an
anomaly, “rave toujours d’assimilation”. Fourth, people were generally dissatisfied
with the quality of French and parents desired better French-language teaching in the
school system. Finally, while Quebecers in general had ambivalent feelings about the
quality of language and how to ensure the predominance of French, there was a strong
belief that redress was necessary.38 The Preamble of the Charter of the French lan-
guage, passed later that year, made clear that its intention was to correct these prob-
lems:
m Official Language Act, S.Q. 1974, c. 6 (better known as Bill 22).
3′ C. Laurin, Minister of State for Cultural Development, Qu6bec’s Policy on the French Language
(Quebec: tditeur officiel du Quebec, 1977) at 52.
3 Lefranfais langue commune, supra note 10 at 14.
696
MGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
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Whereas the National Assembly of Quebec recognizes that Quebecers wish to
see the quality and influence of the French language assured, and is resolved
therefore to make French the language of Government and the Law, as well as
the normal and everyday language of work, instruction, communication, com-
merce and business.
The Charter of the French language declared French the official language of
Quebec, as well as the language of government, the courts, and public and para-public
institutions and agencies. English versions of legislation had no validity. French be-
came the language of work and business. Access to English education was limited to
those whose father or mother had attended English school in Quebec. A number of
constitutional challenges before the courts have undermined the original intention of
parts of the Charter of the French language in areas such as access to education,’ the
language of legislation and justice,” and the language of business.’
In spite of these successful challenges, the Comitd interminist6riel sur la situation
de la langue frangaise (“Interministerial Committee”), mandated in 1995 to describe
and analyze the evolution of the situation of the French language in Quebec since the
passing of the Charter of the French language, concluded that there was visible im-
provement in the generalized use of French. More particularly, its analysis revealed an
increase in the number of Francophones in the job market, an almost complete reduc-
tion in wage disparities between Francophones and Anglophones, and attendance at
French school by the vast majority of young immigrants. Moreover, there was an in-
crease in the knowledge of French by Anglophones and “allophones”, in the use of
French in business, and in the provision of service in French in stores and businesses.
There was also a new tendency for immigrants to become part of the French-speaking
majority. Signs in Montreal had become predominantly French.”
Quebec’s language policy and legislation represent a predominantly territorial
model, with some exceptions. While the Charter of the French language envisaged
some of these exceptions, such as the recognition of the institutions of the English-
speaking community and some limited bilingualism in civil administration in certain
cases, other exceptions have been forced on Quebec following successful court chal-
lenges. Thus the right to English education, initially limited to those whose parents
received the majority of their education in English in Quebec, has been broadened in
light of the Supreme Court’s judgment in Protestant School Boards to include educa-
tion received in English anywhere in Canada. Moreover, in spite of the stated goal to
make French the normal and everyday language of discourse, much official informa-
tion is available in English as well as in French, resulting in a certain amount of insti-
39Supra note 12.
Quebec (A.G.) v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66, 10 D.L.R.
(4th) 321 [hereinafter Protestant School Boards].
” Quebec (A.G.) v. Blaikie n* 1, [1979] 2 S.C.R. 1016,49 C.C.C. (2d) 359.
42 Ford v. Quebec (A.G.), [1988] 2 S.C.R. 712, 54 D.L.R. (4th) 577 [hereinafter Ford]; Devine v.
Quebec (A.G.), [1988] 2 S.C.R. 790,55 D.L.R. (4th) 641 [hereinafter Devine].
43Lefranfais langue commune, supra note 10 at 220.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
697
tutional bilingualism. In 1995, eighty percent of a group of thirty-five ministries and
government organizations had English versions of the majority of their publications
destined for public consumption, and twelve percent of the publications of the Quebec
government were available in English.” Many official forms are available in English
on request, and recorded messages in departments dealing with the public are also
frequently available in English at the push of a button, as is the official Internet site of
the Quebec government.
3. Conflicts between Federal and Quebec Language Policy
These federal and Quebec language policies have different goals and are in con-
flict with each other. The federal approach uses the principle of personality, letting the
individual determine whether the language of service be English or French. While
there are certain prescribed limits, such as the designation of bilingual districts and
requirement for sufficient demand, the federal approach is designed to achieve equal-
ity between French and English in federal institutions across the country. In addition,
federal language policy, as stated in the Preamble of the Official Languages Act, pro-
motes the use of languages other than English and French, adding a further threat to
the primacy of French in Quebec. This federal approach contrasts with Quebec’s de-
sire to make French the common language of all Quebecers and its policies geared to
realizing this goal. Moreover, federal policies and intervention are perceived by some
as specifically undermining Quebec’s linguistic goals. In discussing the power of the
Minister of Canadian Heritage to subsidize English-speaking groups in Quebec under
the Official Languages Act,” the Interministerial Committee concluded not only that
this represents federal intrusion into a realm of provincial competence, but also that
the competition between the Official Languages Act and the Charter of the French
language “ne peut atre que n6faste h la r6alisation des objectifs de cette demi~re”‘
Only a constitutional amendment or sovereignty would give Quebec full powers over
language, both opposed by the vast majority of Quebec Anglophones, who see the
federal government as a protector of their linguistic rights.
The development of the legal right to health and social services in English is in-
teresting to analyze in light of the official status of French in Quebec, the stated desire
to make French the common language of all Quebecers, and the tension between
competing language policies.
II. Evolution of the Right to Health and Social Services in English
(1984-1994)
The right to services in general was introduced in 1971 as part of the reforms in
the health and social services sector. While introduction of the right elicited much
“/bid at 112.
note 26, s. 43.
4Supra
“Lefranfais langue commune, supra note 10 at 41-42.
698
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
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comment, there was no real consensus as to what it represented either factually or ju-
ridically. In parliamentary hearings prior to the passing of the legislation, many
groups urged that the right to service be included, but without a clear attempt to define
exactly what the right represented. During the Parliamentary Commission, the Minis-
ter introducing the legislation noted that the right was not “sanctionnable” (i.e., that it
entailed no sanctions against its infringement), but that it consisted rather of a moral
obligation on public institutions to provide the services ascribed to them in law.”
The right to services in English did not become an issue until the 1980s, when
further modifications to the health and social services system appeared to jeopardize
access to English services.
A. The Campaign for Legal Guarantees to Services in English
(1984-1985)
The campaign for legal guarantees of English services was spearheaded by Alli-
ance Quebec, the principal English-speaking rights group. The Quebec government,
as part of a reform, was planning to implement changes to the organization and
structures of the health and social services system in 1984. In particular, this entailed
the transfer of personnel and budgets from social service centres (“CSS”) to the
emerging CLSC network, as well as the regionalization and sub-regionalization of
services. In concrete terms, this involved the transfer of professionals from Vile-
Marie Social Services, the only CSS mandated to deal with English-speaking users,
into Montreal-based CLSCs unused to providing English-language services and
sometimes ill-equipped to do so. Outside the Montreal region, English-speaking pro-
fessionals, sometimes working as part of multi-disciplinary teams in predominantly
French-speaking CSSs, faced dispersal into the CLSC network. At a press conference
organized by Alliance Quebec in November 1984, Eric Maldoff, president of the organi-
zation, underlined the fundamental principles that had to inform any restructuring:
Our community must be guaranteed access to social services in our language.
There can be no treatment without communication. Failure to provide this es-
sential guarantee is nothing less than the overt exclusion of the English-
speaking community from universal access to social services.
‘7A. Lajoie, ‘V’mergence d’un droit social: le droit aux services” in A. Lajoie et aL, eds., Pour une
approche critique du droit de la santd (Montreal: Centre de recherche en droit public, 1987) 21 at 43.
Analyses of this and subsequent health and social services legislation note the limited nature of the
right to services. See e.g. A. Lajoie, “Le droit aux services: une rdforme en peau de chagrin” in V.
Lemieux et aL, eds., Le syst&me de sante au Qudbec (Sainte-Foy, Qc.: Presses de l’Universit6 Laval,
1994) 129; Y. Martin, “Le nouveau processus d’examen des plaintes dans le cadre du rdseau de la
sant6 et des services sociaux: doit-on s’en plaindre?” (1992) 23 R.D.U.S. 239; and P. Molinari,
“‘accs aux soins de santd: rflexion sur les fondements juridiques de l’exclusion” in L. Lamarche &
P. Bosset, eds., Les droits de la personne et les enjeux de la mddecine modeme (Sainte-Foy, Qc.:
Presses de l’Universit6 Laval, 1996) at 43.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
699
The socio-cultural and linguistic mandate of our existing institutional network
must be acknowledged and respected. This does not negate or reduce, in any
manner, the willingness of our institutions to serve everyone in their regions.
However, without the acknowledgment of the special vocation and responsibil-
ity of our institutions to the English-speaking community, we are being asked
to acquiesce in an unacceptable loss for our community.
An editorial in The Gazette several days later picked up on this issue and indicated the
nature of the problem:
The network of social services for English-speaking Quebecers, so painstak-
ingly built over generations, is in danger.
If this network is to survive, the Quebec government’s bureaucratic and insen-
sitive plan of reorganization can not be allowed to proceed as it is now envis-
aged … The government, it is now clear, has failed to honor its promise to re-
spect the rights of English-speaking Quebecers.
The transfer of staff and budget from the only anglophone social service cen-
tre-Ville Marie–4o local community centres is being planned without respect
for traditions and without proper guarantees that services will be maintained.
The plan to “sectorize” social services, that is to require citizens to apply for
services only at institutions within their residential zones, is in conflict with
every citizen’s right to choose his institutions and professionals. But it could
have especially appalling results for anglophones.
For example: The Taylor-Thibodeau centre provides residential care and other
support in English for intellectually handicapped children and adults. The reor-
ganization would confine the centre’s mandate to the western part of Montreal-
Island.
English-speaking families in the eastern half of the Island would not be allowed
to take their handicapped children to Taylor-Thibodeau, as they do now. They
would have to go to a local institution, which in most cases would have neither
the legal obligation nor the capacity to help the child in his own language.
This unbelievably callous approach has no place in social services …4
The campaign led by Alliance Quebec in 1984 and 1985 in favour of legislative
guarantees included a number of initiatives combining community and institutional
action. The group coordinated a task force of twelve institutions and community or-
ganizations that in March 1984 presented a brief to the Montreal regional council
dealing with a number of issues, including the completion of the CLSC network, the
sectorization of services, youth and social services, and the private and voluntary
sectors. This task force then instituted a community consultation to inform English-
speaking Montrealers of the dangers to the institutional network as a result of the pro-
posed restructuring of services. Alliance Quebec met the Montreal regional council
Alliance Quebec, Press Statement, “On the Future of English-language Social Service Institu-
tions” (22 November 1984).
49 “Network in Danger” (27 November 1984) B2.
700
MCGLL LAW JOURNAL/REVUE DE DROITDE MCGLL
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and the F&16ration des CLSC to present its position on the restructuring, and headed a
delegation to meet with the Minister of Health and Social Services to review the is-
sues and concerns facing the English-speaking community. It also organized task
forces on English services in the regions of the Mont6r6gie and Laurentides-
Lanaudi~re, ensured that its chapters outside the Montreal region met with the local
regional councils to review matters of linguistic accessibility to services, organized
letter writing campaigns, and met with editorial boards, journalists, and union repre-
sentatives.
The organization coordinated a three-week radio campaign in both languages to
bring attention to the issues. It published both French and English versions of a news-
paper advertisement, designed to complement the radio campaign and heighten the
awareness of French- and English-speaking Quebecers, in Le Devoir and The Gazette.
At the same time, Alliance Quebec solicited and submitted to the Government of
Quebec 345 resolutions from schools, hospitals, social service institutions, munici-
palities, and community groups. These resolutions demanded that the government en-
act legislative measures to guarantee the continued existence of the network of Eng-
lish-language social service institutions, adopt legislative guarantees for the English-
speaking population to receive health and social services in its own language, and en-
sure by consultation that the rights of linguistic and cultural minorities be protected in
any restructuring of services.
In March 1985, subsequent to Alliance Quebec’s intervention with the Nelligan,
Notre-Dame-de-Grace, and L’Acadie riding associations, the Quebec Liberal Party at
its policy convention unanimously adopted a resolution supporting a guarantee in law
for English-language institutions and services. In June 1985, Alliance Quebec mobi-
lized six hundred people to attend the annual general meeting of the Montreal re-
gional council to express the community’s concerns about the issues of service deliv-
ery and legislative guarantees. The call for legislative guarantees was echoed once
again by The Gazette in a series of editorials.’ The fall of 1985 saw the Parti Qu6b6-
cois government and the Quebec Liberal Party opposition position themselves for the
provincial election that would take place on December 2, 1995. Robert Bourassa, then
Leader of the Opposition, promised that he would undo the changes proposed by the
Parti Qu6b6cois government and suspend any modification of the Ville-Marie Social
Services Centre until after the completion of the work of the Rochon Commission,
mandated by the government in June 1985 to conduct a thirty-month study into the
restructuring of health and social services. At the same time, he committed a future
Liberal government to supporting the existence and development of English-speaking
“‘Ensure English Services” (27 August 1985) B2; “Let’s Have Guarantees” (13 September 1985)
B2; ‘An Unwise Experimene’ (20 September 1985) B2; “Government Out of Step” (25 September
1985) B2. As the editorials make clear, the catalyst for the campaign for legal guarantees to services
was the restructuring of services in Montreal and elsewhere in Quebec, which would render access to
Engish services more difficult.
2000] R. SILVER- ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
701
institutions and health and social services.” After some backtracking, Pierre-Marc
Johnson, then Premier, committed the Patti Queb6cois government to guaranteeing
English social services. When the government proceeded in any case with the re-
structuring of services in Montreal, the Vile-Marie Social Services Centre defied the
government directive and issued court proceedings to halt the transfer. 2 The Centre
desisted in its action after the victory of the Quebec Liberal Party in the election.
B. Enshrining the Right to Services in English: Bill 142 (1986)
On November 12, 1986, to respect its electoral commitment, the Liberal govern-
ment introduced a bill amending the health and social services legislation’ The leg-
islation was opposed by the Patti Quebdcois and the government had to invoke clo-
sure to pass the bill on December 18, 1986. The bill was given royal assent the fol-
lowing day.
Bill 142 included four principal components. First, it amended the existing health
and social services legislation,.’ giving the Minister of Health and Social Services the
responsibility to ensure that services reflected the linguistic and socio-cultural char-
acteristics of each region. Second, it granted a qualified right for English-speaking
people to receive services in English:
Every English-speaking person is entitled to receive health services and social
services in the English language, taking into account the organization and re-
sources of the establishments providing such services and to the extent pro-
vided by an access program….M
Third, it gave the regional health and social services councils the responsibility to
develop programs of access to English services while taking into account the organi-
zation and resources of the institutions in the regions. Finally, it provided for the gov-
ernment to designate by regulation which institutions recognized under paragraph
113(f) of the Charter of the French language (those with the right to function in both
French and another language) would be bound to make all their services available in
English.-
The intention of the government can be discerned from the comments of Thdrse
Lavoie-Roux, Minister of Health and Social Services, during the debates on the leg-
islation in the National Assembly:
” B. Aubin, “I’d Scrap Change in English Social Services: Bourassa’ The Gazette (24 September
1985) Al.
52The Vile-Made Social Services Centre was to transfer 157 of its staff of 600 to CLSCs. It coun-
tered with a request that the transfers be limited to 82 workers, and that the government drop its plan
to transfer school social workers and nurses.
“Bill 142, supra note 1.
Forner Health and Social Services Act, supra note 7.
sBill 142, supra note 1, s. 3.
Supra note 12, s. 113(0.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
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Ce que nous voulions faire par ce projet de loi, c’est de garantir 1exercice d’un
droit, consacrer dans la loi le droit pour la minoritd anglophone de recevoir des
services dans le domaine de la santd et des services sociaux dans sa langue. Un
droit qui n’est pas constitutionnellement ou lgalement reconnu n’a pas de
portde opratoire rdelle. Et s’il est vrai que, dans les faits, ces services leur sont,
meme actuellement, dans une large mesure, prodigus dans leur langue, ils
demeurent ndanrnoins soumis t la bonne volont6 de celui ou celle qui dispense
les services …
Actuellement, le dispensateur de services a la discretion de les offnir ou non en
langue anglaise. Par la reconnaissance du droit et les mesures pour le faire va-
loir, un 6l6ment majeur intervient du fait que le bdnficiaire pourra effective-
ment les obtenir en langue anglaise 7
In responding to questions raised by the Opposition about Bill 142’s effects on the
Charter of the French language and the integration of immigrants, the Minister noted
that the language of work and education were the tools favoured by the government to
integrate immigrants into Quebec’s French-speaking majority, while the purpose of
the legislation was the provision of adequate services in the sense of the health and
social services legislation. She contended that the introduction of the right to services
in English was a service, rather than a linguistic, matter, and that neither the purpose
nor the content of the Charter of the French language would be compromised in any
way. Bill 142, she asserted, did not question the commitment of the government to en-
sure that French remained the common language of all Quebecers. For the Minister,
language comprised an essential tool of service delivery:
La question centrale est de reconnaitre une relation entre d’une part la presta-
tion de services de sant6 et de services sociaux et d’autre part la langue dans
laquelle ces services sont dispense. Concritement, la dispensation des services
englobe l’ensemble des gestes et des actions qui constituent le tissu de com-
munication entre le dispensateur de services et un bdn6ficiaire. RI ne peut s’agir
simplement dans ce domaine que de poser des gestes ou d’appliquer des tech-
niques, mais le dispensateur de services doit au premier chef entrer en commu-
nication avec le bondficiaire!?
In granting this right to English-speaking Quebecers, the Minister differentiated
the historic rights of that community from Quebec’s different cultural communities,
who had nonetheless equally legitimate concerns to have services adapted to their
needs. However, in noting that the right was granted to English-speaking persons, she
indicated that the intention of the government was not to limit the right to people
whose first language was English, but to extend it to those who were uncomfortable
expressing their needs in French: “Pour nous, ce sont des personnes qui, au moment
oti elles requi~rent des services de sant6 et des services sociaux, ne se sentent plus ca-
pables d’exprimer leurs besoins dans cette langue ‘ “‘
57Quebec, National Assembly, Journal des d6bats (8 December 1986) at 4929.
58 Ibid. at 4933.
Ibid. at 4934.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
703
For the Minister of Health and Social Services, permitting members of the differ-
ent cultural communities who had over the years been integrated into the Anglophone
community and who were more comfortable expressing their needs in English to avail
themselves of English services for humanitarian reasons would not threaten the use of
French in Quebec. These people, for all intents and purposes, formed part of the An-
glophone community.’ Noting that the use of the expression ‘English-speaking” had
provoked concerns on the part of the Opposition, the Minister pointed out that this
was the term used in the Preamble of the Charter of the French language, passed nine
years earlier while the Parti Queb6cois was in power. She also underlined the incoher-
ence of the opposition to the bill by the Parti Que’b6cois, whose electoral program and
constitutional position had committed itself to guaranteeing the same rights it was
now opposing, and whose comments in the fifteen hours of debate in the Parliamen-
tary Commission frequently referred to issues “qui leur 6taient chers dans les ann6es
1978-1979 tels: la Conqu~te, le rapport Durham, les minorit6s francophones du
Manitoba. 6′
Unlike the Liberal government, which characterized the legislation as essentially
facilitating access to services, the Pard Qu6b6cois defined it not as social-affairs leg-
islation, but instead a linguistic law, and accused the government of weakening its
commitment to the use of French in Quebec. Moreover, Pierre-Marc Johnson, now
Leader of the Opposition, invoked the unequal situation between Quebec’s English-
speaking minority and French-speaking minorities elsewhere in Canada:
Quand on discute des questions linguistiques, quand on discute des rapports
entre communautds linguistiques au Canada et au Quebec, en particulier, il faut
avoir h 1’esprit qu’il n’y a pas de symdtrie et de rciprocit6 entre la minorit6 an-
glophone du Quebec et les minorits hors Quebec qui sont francophones. Je
m’explique. Peut-etre, faut-il faire ces rappels historiques, malheureusement,
alors que ce debat s’enclenche autour de quelque chose qui relive essentielle-
ment, A aussi, du droit collectif et non pas des droits individuels, c’est-t-dire
du droit des minoritds. On salt qu’il n’y a m~me pas un sikcle, il y avait une
…
majorit6 des gens d’expression
qu’aujourd’hui ils sont moins nombreux que d’autres minorit6s ou commu-
naut~s culturelles.
frangaise an Manitoba. On salt
6/NeL
at 5129.
61IbkL at 5128.
62/b
at 4935. Despite the Patti Queb~cois opposition to the legislation granting the legal right to
services in English, Pierre-Mare Johnson was by no means opposed to the availability of services in
English. The letter from P.-M. Johnson, Minister of Social Affairs, to Reed Scowen, Liberal M.N.A.
for Notre-Dame-de-Gnice (22 June 1983), states:
Vous serez d’accord avec moi pour reconnaltre que l’unilinguisme Anglophone est de-
venu un anachronisme dans la socidt6 fiancophone que constitue le Quabec. Ceci 6tant –
dit, la r6alit6 demeure ce qu’elle est et l’humanisme et le sens commun ont aussi droit
de citd. 11 m’apparalt en effet important que les personnes n6cessitant des soins puissent
communiquer adquatement, dans les situations d’urgence et de soins intensifs no-
tamment. Par exemple, on imaginerait mal que le Centre de coordination des Urgences-
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 45
The content and effects of the right were discussed by the Minister of Health and
Social Services during the Parliamentary debate leading to passage of the bill. Bill 142
would not create a parallel system of health and social services for the English-
speaking community. Instead, some institutions would be designated to provide some
or all of their services in English while forming part of the institutional network and
respecting all other legislation, including the Charter of the French language. Nor
would new institutions be created specifically to provide services in English. Bill 142
created a mechanism whereby the regional councils would develop, in collaboration
with the institutions in their region, detailed plans to ensure the delivery of services in
English to their English-speaking residents. The bill would not oblige each institution
to offer services in English or to have bilingual staff.
Bill 142 was designed to ensure that English-speaking people living in all regions
of Quebec would have access to some services in English. This element was of par-
ticular importance in those regions where there were relatively few English-speaking
people and no institutions historically affiliated with the community.’ Bill 142 also
provided for the health and social services system to promote access to services for
the different cultural communities in their own language. However, there was no legal
obligation on regional councils or institutions to develop special programs for cultural
communities.
C. Implementation of the Right: The First Access Programs to
English Services (1989)
Although Bill 142 was passed in December 1986, and came into force on January
7, 1987, the law was not implemented until over two years later when the government
approved the first access programs for English services. The delay can be explained
by the request by the regional councils to postpone submission of their programs until
the spring of 1989, whereas the original deadline for their completion had been set for
the end of 1987.
In April 1988, the government passed the order in council establishing which in-
stitutions recognized under paragraph 113(f) of the Charter of the French language
Sant6 ne puisse rdpondre en tout temps en anglais aussi bien qu’en frangais. I va de
m~me pour les salles d’urgence et les soins intensifs. Nonobstant l’dtat de la l6gislation,
la coutume et le sens commun font que les dtablissements du rseau des Affaires soci-
ales, dans la rgion de Montrnal notamment mais aussi dans toutes les rdgions du Qu6-
bec, font tout dans leur pouvoir pour procurer aux ben6ficiaires anglophones des serv-
ices dans les conditions les meilleures possibles pour assurer leur bien-8tre.
In eight of the eleven administrative regions in place at the time, the proportion of people who
spoke English at home represented less than nine percent of the total population. In regions such as
these, it was recognized that not all services could be provided within the region. The Minister noted:
“En effet, dans certaines rgions du Qudbec, compte tenu du trbs faible taux de la population
d’expression anglaise, il vaudrait mieux, comme d’ailleurs, cela se fait maintenant dans une certaine
mesure particuli&ement eu 6gard aux services hospitaliers, qu’il y at des ententes interrgionales
pour la livraison des services” (supra note 57 (17 December 1986) at 5643).
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
705
would be obliged to render all their services in English.” The regulation designated 79
institutions among the 91 with bilingual status. Fifty-five were in Montreal, while the
rest were scattered around the rest of the province. These ranged from some of Que-
bec’s major hospitals to small private nursing homes with few residents. There were
17 acute-care and 12 long-term care hospitals, in addition to 14 rehabilitation centres,
31 nursing homes, and 2 social service centres. This number represented 9.2% of the
total of 858 institutions in Quebec.
From April to August 1989, under the authority of the Junior Minister for Health
and Social Services, Louise Robic, the government passed the orders in council put-
ting into force the access programs for English services. The programs had, in con-
fornuity with the legislation, been developed by the regional councils in collaboration
with the institutions in their region.’ The government identified 170 institutions that
were to provide some or all of their services in English. With the 79 institutions al-
ready identified by regulation, the total number of institutions providing all or s6me
specified services in English represented approximately 29% of Quebec’s health and
social service institutions. The press releases issued at this time reinforced the notion
that the access programs were intended to enable English-speaking Quebecers to re-
ceive the same services provided to the French-speaking majority, while taldng into
account the limitations expressed in the law.”
‘O.C.
580-88, 4 May 1988 G.O.QIL2559. An Act to amend the Charter of the French language,
S.Q. 1993, c. 40, s. 42 [hereinafter Bill 86] rescinded s. 113(f) and replaced it with s. 29.1. This sec-
tion, found in the chapter on the language of the civil administration, now governs the recognition of
institutions which provide services to persons who, in the majority, speak a language other than
French. However, recognition under s. 29.1 of the Charter of the French language, supra note 12,
does not protect institutions from closure, merger or unification in cases of structural transformation
of the health and social services system.
6This
process involved a number of steps. First, the Deputy Minister invited the regional councils
to submit an action plan. The’regional council named a person to manage the process, formed a
committee attached to the board of directors and determined the means whereby the English-speaking
population would be involved. The council undertook a demographic study of the English-speaking
population of the region, made an inventory of the services provided by its institutions, and identified
the needs of the English-speaking population. It subsequently drew up a plan of action, submitted this
to its special committee, consulted representatives of the English-speaking population, and presented
the proposal to the institutions to receive their comments and reactions. If the proposal were modified,
the committee and the institutions would be consulted once again. The proposal was then submitted to
the board of directors of the regional council for approval and subsequently to the Ministry, which re-
viewed the plan to ensure it conformed with the criteria established at the outset and solicited further
information from the regional councils if necessary. See Quebec, Ministare de la Sant6 et des Services
sociaux, Services de santi et services sociaux en langue anglaise, rapport d’itape (Gouvemement du
Quebec, 1990) at Annexe 2.1, Cheminement type du plan d’action d~pos6 par un CRSSS en vue
d’approbation par le Conseil des ministres et la publication d’un d6cret.
“See e.g. the press release issued to announce the adoption of the access program for the Gaspl
and les-de-la-Madeleine region:
Bill 142, adopted in December 1986, stipulates that the regional health and social
services councils (CRSSS) are to prepare access plans that will enable English-
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 45
In May 1989, the Quebec and Canadian governments finalized an agreement
whereby the federal government would support Quebec’s initiatives to facilitate ac-
cessibility to English services (“Canada-Quebec Agreement”). This one-time five-
year agreement, under the auspices of the federal government’s official languages
program, provided for a federal contribution to the expenses incurred to implement
the provisions in Bill 142.’ The funding for the first few years of the agreement was
established at $1,110,000, contributed equally by the two levels of government. The
budget was used to hire a coordinator of English-language services in each regional
council and permitted such complementary activities as the preparation and transla-
tion of documents, English courses for French-speaking personnel serving English-
speaking users, projects initiated by community groups, and the holding of confer-
ences. The presence of the coordinator was the most significant element of the agree-
ment, since it facilitated the presence, in many regions for the first time, of an Eng-
lish-speaking staff member within the regional council structure.
The eleven regional councils calculated that budgets in the amount of $1,594,000
would be needed for the year 1989-90 to implement the access programs. ‘ The Min-
istry advised the councils that the implementation of the access programs would have
to come out of the existing budgets of institutions. However, the Canada-Quebec
Agreement provided the means, to a great extent, for the regions to implement their
programs.
In the meantime, relations between the Quebec government and the English-
speaking community had become acrimonious. The Supreme Court in Ford’ had de-
clared sections 58 and 69 of the Charter of the French language inoperative to the
extent that they prescribed French unilingualism in commercial signs, not only as in-
fringing the right of freedom of expression guaranteed by the Charter, but also as in-
compatible with the right to equality guaranteed by the Quebec Charter. To escape
the consequences of the judgment, the government under Robert Bourassa passed, in
December 1988, legislation containing a dual dispensation from the application of
both charters, and thus restoring the validity, in modified form, of the Charter of the
French language.”
speaking Quebecers to receive in their language the health and social services normally
provided to Quebec’s entire population. The law also stipulates that every English-
speaking person is entitled to receive health services and social services in the English
language, taldng into account the organization and resources of the establishments pro-
viding such services and to the extent provided by an access plan (Ministare de la Santd
et des Services sociaux, Communiqud (2 June 1989) [emphasis in original]).
“The agreement was renewed in 1993 for a further five year period from 1994 to 1999.
Quebec, Ministare de la santd et des services sociaux, Mbnoires au conseil des ministres: Pro-
gramme d’accs a des services de santi et des services soclaux en langue anglaise pour les rigions
visdes par la loi 142 (Gouvemement du Qu6bec, 12 October 1989) [hereinafter Mmoires au conseil].
“Supra note 42.
“An Act amending the Charter of the French language, S.Q. 1988, c. 54 [hereinafter Bill 178]. See
also Woehrling, supra note 10 at 208-11.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
707
The passing of Bill 178 created a storm of protest in the English-speaking com-
munity, led to the desertion of the Quebec Liberal Party by many English-speaking
members, and provoked the creation of a new political party, the Equality Party, to
contest the next provincial election. With a provincial election held in September
1989, it was not surprising that the government ensured the adoption of all access
programs before the election so as not to further alienate English-speaking voters.
Moreover, during the election campaign, the Liberal government promised to
spend $3.5 million to create positions in the network to provide services already
available to French-speaking Quebecers but unavailable in English. Following its re-
election, the government allocated $1.5 million in December 1990 to create 29.8 per-
manent positions in the health and social services network to respond to unmet needs.
The remaining $2 million was never made available.
The Ministry of Health and Social Services also initiated the creation of a docu-
mentation centre, set up under the auspices of the F~ddration des CLSC, to facilitate
access to the wealth of health and social services information available in English but
not always accessible in the regions. This centre was funded by the Canada-Quebec
Agreement.
The implementation of Bill 142 did not appear to elicit negative reactions in
French-speaking Quebec. For example, Gilles Lesage made this comment in an edito-
rial in Le Devoir.
Apr~s deux ans et demi, la loi 142 entre finalement en vigueur. Ce n’est pas
trop t6t. RI n’y a pas lieu de pavoiser. II n’y a pas lieu non plus de partir en peur
ou de faire preuve de mesquinerie. Ce n’est pas une loi qui 6largit des droits ou
en accorde de nouveaux aux anglophones. C’est, pour l’heure, la reconnais-
sance pure et simple de certains services que l’on veut rendre plus accessibles A
ceux qui y ont droit…
La crainte 6iectorale est le commencement de la sagesse politique. La raise en
ceuvre de la loi 142 n’enl~ve rien des francophones. Elle rassure, tardivement et
partiellement, la communaut6 anglophone.”
D. Consolidation of the Right: Bill 120 (1991) and Bill 15 (1992)
In 1991, Quebec instituted another major reform of the health and social services
system, including the creation of new administrative regions and increased responsi-
bilities for the regions.’ For the English-speaking community, there were several
points of interest. In addition to reaffirming the provisions in Bill 142, Bill 120 con-
solidated the right of English-speaking persons in a number of ways.
“‘ “Des services plus accessibles: pas de mesquinerie avec la loi 142 pour les anglophones” (27 May
1989) A8.
7 Bill 120, supra note 7.
708
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 45
The new legislation established “an organizational structure of human, material
and financial resources designed … to take into account the distinctive geographical,
linguistic, sociocultural, ethnocultural and socioeconomic characteristics of each re-
gion.””3 Moreover, it provided for the existence of a child- and youth-protection centre
for English-speaking Montrealers, 74 created a provincial committee to advise the
government on the delivery of English-language health and social services and on the
approval, evaluation, and modification of access programs for English services, and
provided for regional committees to advise the regional boards (formerly councils) on
their access programs.” In addition, boards of institutions and regional boards were
obliged to take into account, in the planning and allocation of budgets and the naming
of board members, the linguistic characteristics of their users and the demographic re-
ality of their population.’ Finally, the legislation stipulated that the access programs
for English services be revised every three years.n
Recognizing the complexity of the reform embodied in Bill 120, the Quebec
government modified the law in June 1992, clarifying a number of points and adopt-
ing some transitional provisions to facilitate the process of change. To ensure conti-
nuity, the law stipulated that access programs in force would continue to apply until
revised. Furthermore, in anticipation of the transfer of personnel and services from in-
stitutions required to provide services in English to others with no legal obligation to
do so, the law stipulated that those institutions receiving services were deemed to be
in the access programs until revision took place.’
E. Evaluation of the Right: The Impact on Service Delivery
What was the effect of the passing and implementation of legal guarantees on the
availability and accessibility of English services and the attitude of those planning and
providing services?
First, the regional councils, in the elaboration of their access programs, were
obliged, sometimes for the first time, to take into account an English-speaking pres-
ence in their region. This was of particular importance in those regions where there
were few English-speaking people. In addition to availing themselves of demographic
“Ibid, s. 2(5).
74kbid, s. 125.
” Ibid., ss. 509, 510. The work of the Provincial Committee on the dispensing of health and social
services in the English language [hereinafter English Services Committee] is discussed below. These
sections formalized the role of the committees already in place but which had no official status.
Ibid, ss. 171, 347 (planning and allocation of budgets), ss. 138, 398 (naming of co-opted board
members after the election process).
Ibid, s. 348.
” An Act to amend various legislative provisions concerning the application of the Act respecting
health services and social services and amending various legislation, S.Q. 1992, c. 21, s. 68 [herein-
after Bill 15], which added ss. 619.29 and 619.44 to the Current Health and Social Services Act, su-
pra note 7.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
709
data to facilitate their task, the regional councils evaluated the accessibility of the
services available in their institutions and consulted the local English-speaking public,
through its representative organizations, to assess its needs and to review where serv-
ices were lacking.79 This process enabled the regional councils to identify not only
where services were available, but also where their development was necessary to
satisfy needs that were unmet for this segment of the public. The presence of advisory
committees, frequently composed of not only English-speaking volunteers but also
Francophones, planning and delivering services encouraged the development of col-
laborative mechanisms of service planning. Moreover, the presence of a coordinator
of English services within the regional councils created an additional link between the
councils and the English-speaking community.
Second, the passing of Bill 142 created expectations on the part of the English-
speaking public that services which had not previously been sought would now be
available in English.
Third, the legal obligation on institutions to provide services in English, although
qualified by the resources at their disposal, sensitized them to the concerns of the
English-speaking population on their territory. This was particularly the case with the
CLSC network, mandated to offer front-line services to all on their territory.
Much of this would not have occurred without the political will to implement the
project. The presence of a junior minister and subsequently a parliamentary assistant
charged with implementing Bill 142 emphasized to regional councils and institutions
the importance of the right to English services. The political representatives visited
many of the administrative regions to meet with the English-speaking public, the re-
gional councils, and the institutions providing direct services to the community.
Moreover, a political attach6 within the Minister’s office ensured a link between the
political and administrative functions and, together with elected representatives, be-
tween the Ministry and representatives of the English-speaking community and the
institutional network. The Ministry officials worked closely with the regional councils
to oversee the implementation of the access programs from an administrative per-
spective.
Following the adoption of the access programs, there was little formal analysis by
the regional councils of their impact on the accessibility of services. One exception
9 While one would expect that services in English would be least accessible outside Montreal, it is
interesting that certain gaps were identified for the Montreal metropolitan region: a more limited ac-
cessibility of services for those living in the eastern part of the island or in Laval (which then formed
part of the region), limited accessibility for people with drug and alcohol problems, a limited number
of places available in institutions with a supra-regional mandate because of the attraction for people
living outside Montreal, a lack of places with complete accessibility in some long-term care centres
and rehabilitation centres for the intellectually handicapped, lack of budgets to develop places in in-
stitutions for the deaf and the physically handicapped as well as a lack of information available in
English (Minoires au conseil, supra note 68).
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 45
was Estrie which, in 1992, commissioned an evaluation of its access program.? The
report addressed the twin issues of accessibility to services and the implementation of
the measures adopted in the access program. It indicated that services in the French
hospitals in Sherbrooke were accessible in English. These institutions offered spe-
cialized services that were unavailable elsewhere in the region and their accessibility
in English was therefore crucial. It was noted that these services were not always ac-
cessible in English prior to the adoption of the access program. Moreover, the CLSC
network had, for the most part, managed to raise its visibility with the English-
speaking community and ensure the accessibility of services in English. It was noted
that this success predated the access program. The availability of English-language
material had improved since the adoption of the program and language training had
also contributed to a more “positive attitude” in responding to English-speaking peo-
ple needing services.
In assessing the overall level of accessibility, the regional council had diligently
implemented the program and the institutions had, for the most part, collaborated in
good faith. There had been progress in a number of areas, including the provision of
social services for young people, services provided by French hospitals, and front line
services provided by CLSCs.
While reviewing areas requiring improvement, the report noted some obstacles
remaining in tenns of implementing the access program. In the case of two CLSCs in
the region, this essentially amounted to institutional resistance to providing services in
English. The problems were described as follows:
In the case of [one CLSC] the institution is ignoring the law. Management has
decided not to take account of the law and simply ignores it. The rational [sic]
proffered is that the law provides only for anglophones who cannot speak …
[French], or that Latin Americans are more of a priority. [The CLSC] has suc-
ceeded in convincing the English clientele of the Sherbrooke area that they are
not accessible; the result being that they in fact serve very few anglophones. By
the way, the barrier to accessibility is not at the level of health professionals but
rather at the preliminary phases of access, that is: reception, evaluation and re-
ferral.
In the case of the [other CLSC] the problem appears to be one of a lack of re-
sources and of a decision not to mobilize any of already existing resources for
the English clientele which is of the order of some two thousand in a total cli-
entele of twenty thousand. The CLSC is quite straightforward about its posi-
tion.”‘
In general, the developments regarding the planning and provision of English
services from the passing of Bill 142 in 1986 until 1994 are positive. It is interesting
0 G. Caldwell, Accessibility of Health and Social Services to English-speaking Townshippers:
Evaluation of the 1988, Region 05, Law 142 Access Programme (Sherbrooke: Conseil de la sant6 et
des services sociaux de ‘Estrie, 1992) [unpublished].
“bid. at 35.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
711
to contrast this period with the events following the election of the Parti Qu6b6cois
government in September 1994.
Ill. Reorganization, Service Delivery, and Language Politics: The
Revision of Access Programs to English Health and Social
Services (1994-1999)
In August 1994, Lucienne Robillard, Minister of Health and Social Services in
the Liberal government, asked the regional boards to revise their access programs and
sent them the frame of reference document outlining the guidelines for the revision
process.’ The Minister requested the boards to submit their programs no later than
December 1, 1995. In September 1994, the Parti Quebcois gained power. By the end
of its first mandate in November 1998, the government had not yet adopted the re-
vised programs. The government was obliged to justify delays surrounding the ap-
proval of the revised access programs on a number of different occasions. In January
1999, Alliance Quebec instituted legal proceedings to force the re-elected Parti Qu6-
b6cois government to approve the plans. Only then did it begin to approve the pro-
grams. Two main reasons can be invoked to explain such a delay in what is essentially
an administrative process. First, the health and social services system was undergoing
a major transformation, which obliged the regional boards to restructure the organiza-
tion and delivery of services, including those to the English-speaking population.
Second, and more important, the issue of the right to English services became, under
the Parti Queb~cois government, a political issue.
A. Reorganization of the Health and Social Services System
The Parti Que’b6cois government gave several reasons for the need to reorganize
the health and social services system. First, the “Politique de la sant6 et du bien-etre”,
adopted in 1992, established twenty objectives in public, physical, and mental health,
as well as in the areas of social adaptation and integration. These priorities were to
guide planning and to affect the allocation of resources. Second, Quebec society was
undergoing demographic and social changes with an impact on the delivery of health
and social services. These included the aging of the population combined with the
continuing presence of inequalities in health, tied to income and socio-economic
status. In addition, health and social problems such as suicide, AIDS, and cancer, ne-
cessitated greater intervention in these areas. Third was the issue of health expendi-
tures and the need to reduce costs.’
Quebec, Minist~re de la Sant6 et des Services sociaux, Program of Access to Health and Social
Services in the English Language for English-speaking Persons: Frame of Reference (Gouvemement
du Qulbec, 1994). The Government had passed an order-in-council (809-94) on June 1, 1994, setting
September 2, 1994, as the date from which the regional boards should undertake their revision.
Quebec, Minist~re de la Sant6 et des Services sociaux, La santg et les services sociaux: Enjeux et
orientations stratdgiques d’un systlme en transformation (Gouvemement du Quebec, 1996) at 7-22.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 45
The strategies adopted by the government to reorganize the system included four
major components: changing the structures of the public network and the way serv-
ices were delivered, putting into place a new drug insurance program, developing new
policy dealing with medication, and finally, rationalizing services and fees for serv-
ices. Of these, modifying organizational structures and service delivery contributed to
the delays in the submission of the access programs by the regional boards to the
Ministry. Indeed, the last access program, that of Montrdal-Centre, was not even sub-
mitted until December 1996, one year later than originally stipulated.
The changes imposed on the system included the amalgamation and closure of in-
stitutions, implementation of the virage ambulatoire, consolidation of front-line serv-
ices, emphasis on prevention of illness and promotion of health, allocation of new re-
sources for residential settings for the elderly, and elimination of staff positions in the
network.” While this certainly affected all Quebecers, it had a particularly important
impact on the English-speaking population. Several institutions with bilingual status
were closed, amalgamated, or found themselves with changed mandates. In Montreal,
the Queen Elizabeth, Reddy Memorial, and Lachine General hospitals were closed. In
Estrie, the Sherbrooke Hospital, the only designated bilingual acute care hospital, be-
came part of a long-term care centre and lost its acute-care mandate. In Quebec City,
the Jeffery Hale Hospital, founded by and affiliated with the English-speaking com-
munity, although not enjoying bilingual status, was transformed into a long-term care
centre. While Montrealers could easily find English hospital services elsewhere, the
situation was more serious outside the metropolitan area. Furthermore, the change in
mandates of the Sherbrooke and Jeffery Hale hospitals was perceived as a loss of
community patrimony. The changing role of the acute-care hospital sector and the
implementation of the virage ambulatoire, with a transfer of services towards the
community and the emphasis on front-line services through the CLSC network, meant
that English-speaking people were obliged once again to turn to institutions not nec-
essarily used to serving them.
Worried that the reorganization of the system was jeopardizing the right to health
and social services in English, the English Services Committee wrote to the Minister,
Jean Rochon, stating that quick and effective action on his part was necessary. The
English Services Committee, created by Bill 120 in 1991,’ asked the Minister to in-
tervene in the following areas: manpower redeployment in the Montreal region after
the closure of acute care hospitals and the transfer of personnel into the CLSC net-
work, protection of institutions with bilingual status subject to amalgamation and uni-
Thid. at 23-31. The number of public institutions declined from 661 to 561 in the space of one
year (1995 to 1996). The number of institutional boards of directors dropped from 663 in October
1992 to 429 in September 1996. While the number of CLSCs remained stable (151) from 1995 to
1996, there was a decline in long term care and acute care hospitals (from 247 to 184 and 121 to 118
respectively), centres for people with drug and alcohol problems and the intellectually and physically
handicapped, psychiatric hospitals (from 46 to 34) and youth protection centres and centres for young
people in difficulty (from 59 to 37).
” Supra note 75.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
713
fication, and special recognition for institutions providing services to English-
speaking people living outside their region. The English Services Committee also
sought confirmation that there would be no change in the eligibility criteria for re-
ceiving services in English and requested the speedy adoption of the access programs.
The English Services Committee alleged that certain regional boards believed that the
Ministry had indicated that there was no urgency to complete the revision of the pro-
grams within the orginal deadline. The English Services Committee argued that
“[bludget pressures, network transformation, regionalization and decentralized man-
agement of the health and social-service system should not serve as a justification of
the government’s abandonment of its overall responsibility for application of the right
of English-speaking people to receive services in English’
The reorganization of the system did not, however, cause delays for all regional
boards. The first access programs were submitted by the Mont&6gie, Lanaudi~re, and
Abitibi-T~miscamingue in November 1995. These were followed by Mauricie-Bois-
Francs and Gasp~sie–Ies-de-la-Madeleine in December, and by Laurentides, C6te-
Nord, Qudbec, and Saguenay-Lac-Saint-Jean in early 1996. The remaining regional
boards submitted their programs over the course of the year, ending with the submis-
sion of the Montr6al-Centre plan in December 1996.
B. Language Politics and the Right to English Health and Social
Services
The adoption of the access programs was also delayed because of attempts to un-
dermine the right to English services as expressed in the health and social services
legislation. A series of events in 1996 and 1997 contributed to a growing politicization
of the issue and to confrontation between the English-speaking community and both
the Parti Qu6b6cois government and the Pard Queb6cois itself. These attacks on the
right of English-speaking people to receive services in English were couched as con-
cern to protect the goals of the Charter of the French language, but their underlying
purpose was to question that right.
1. The Interministerial Committee on the Status of French in Que-
bec: Le frangais langue commune
The initial attempt to question the extent of the right to English services was con-
tained in the draft report of the Interministerial Committee, tabled in January 1996.
Louise Beaudoin, Minister of Culture and Communications and Minister responsible
for the Charter of the French language, had created the Interministerial Committee in
September 1995 with this mandate: “D6crire et analyser 1’6volution de la situation de
Letter from the English Services Committee to Jean Rochon, April 22, 1996. This letter was ob-
tained and published by The Gazette (2 May 1996) B3.
MCGLL LAW JOURNAL/REVUE DE DROiTDE MCGLL
[Vol. 45
la langue frangaise au Qu6bec depuis l’adoption de la Charte de la languefrangaise
dans les diffdrents domaines de l’am6nagement linguistique.”‘
The Interministerial Committee believed that Bill 142 constituted “un nouvel
am6nagement linguistique, bas6 sur des principes diffdrents de ceux de la Charte de la
langue frangaise.” For the Interministerial Committee, the public administration pro-
vided services based on the following four linguistic principles:
[Lie frangais et l’anglais ne sont pas sur le mame pied et ne jouissent pas du
meme statut au Quebec; seul le franuais est langue officielle;
le frangais est la langue commune des communications et des services de tous
les Queb~cois; pour jouir de la pleine accessibilit6 aux services publics, les ci-
toyens doivent connaltre le frangais;
si un citoyen s’adresse A l’Administration dans une autre langue que le frangais,
on peut lui r6pondre dans sa langue; il faut cependant respecter le droit des
fonctionnaires de travailler en franais; on peut aussi encourager les fonction-
naires h apprendre d’autres langues, particuli6rementl’anglais;
les services publics sont dispenses h des citoyens en tant qu’individus et non en
tant que membres d’un “groupe linguistique” ou d’une communaut6 cultu-
relle.88
This passage, which did not appear in the final report, is revealing in that it clearly
indicates that knowledge of French should be a prerequisite to obtaining accessible
public services. Furthermore, it presupposes that there is generally no obligation to
provide services in a language other than French. Such provision is left to the discre-
tion of the civil servant. To enjoy full access to public services, the individual must
adapt to the institutional and bureaucratic structures, not vice versa. The Draft Report
considered that the “nouvel am6nagement linguistique” of Bill 142 was an exception
in that it conflicted with each of the four principles:
[I11 place le frangais et l’anglais sur le mame pied; n’importe qui peut choisir
d’6tre servi en frangais ou en anglais, comme dans un contexte de bilinguisme
officiel;
un citoyen n’a pas besoin d’apprendre ou de connaltre le franais pour avoir
plein accs t ces services; on ne peut plus dire que le franais est la langue
commune de la vie publique;
si un citoyen s’adresse en anglais aux services de sant6 et aux services sociaux,
le fonctionnaire a ‘obligation de lui rdpondre en anglais (ou bien cette obliga-
tion ne respecte pas son droit de travailler en frangais ou bien le poste occup6
par le fonctionnaire a 6t6 reconnu bilingue aux termes de l’article 46);
8 Lefranfais langue commune, supra note 10 at 4.
” Quebec, Comit6 interminist&iel du bilan sur la situation de la langue frangaise, La situation de la
languefranfaise au Qu6bec, Projet (January 1996) at 336 [hereinafter Draft Report].
2000] R. SILVER- ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
715
meme si elle n’appartient pas h la minorit6 d’expression anglaise, toute per-
sonne d~sireuse d’8tre servie en anglais a le droit de recevoir en anglais des
services de sant6 et des services sociaux
The consequence of this last measure is that any persons can consider themselves
to be members of Quebec’s English-speaking minority, sending an ambiguous mes-
sage to allophones about integrating into French Quebec. The Interministerial Com-
mittee then stated that, while its mandate was not to pronounce on the law, “[c]e qui
6tonne, dans le cas des services de sant6 et des services sociaux, c’est que la ddroga-
tion accord6e par le 16gislateur s’6tend bien an-delI de ‘la minorit6 de langue an-
glaise’ et de ses ‘institutions’ ‘
Here, for the Interministerial Committee, there was incontestably a risk of conflict
with the Charter of the French language. If anyone could define oneself as English-
speaking for the purposes of obtaining services, health and social service institutions
could become the means of integrating immigrants into the English-speaking minor-
ity. The Interministerial Committee did acknowledge that it is not the role of the Min-
istry of Health and Social Services to worry about the integration of immigrants and
that this dimension should not enter into consideration when someone is ill, but it
asked nevertheless, “Cela justifie-t-il qu’on puisse renoncer aux obligations qui nous
incombent comme prestataires de services publics?”‘” In the opinion of those who
wrote the Draft Report, services in English should be limited to people whose first
language is English. The Interministerial Committee glossed over the fact that Quebec
has chosen other means, such as education and the workplace, to integrate immi-
grants, and that the function of health and social service institutions, as defined in
health and social service legislation, is to provide services, not to facilitate the inte-
gration of immigrants or allophones into the French-speaking majority. Moreover, the
Interministerial Committee provided no data suggesting that Bill 142 had facilitated
the integration of immigrants or allophones into the English-speaking minority.
Next came an attack on the number of institutions providing services in English
and the effect on institutional bilingualism:
En second lieu, on aurait pu penser que les services de sant6 en anglais se se-
raient ddvelopps de fagon suffisante et satisfaisante autour des institutions is-
sues de la minorit6 anglaise, dont les effectifs ont d’ailleurs diminud depuis un
quart de sikcle. En vertu de ‘article 29.1 de la Charte, rOffice a reconnu 90 or-
ganismes de sant6 qui foumissent leurs services t des personnes en majoritd
d’une langue autre que frangaise. Mais les programmes d’acc s aux services en
anglais, mis en place par la loi, s’6tendent 4 toutes les rdgions du Quebec et
touchent pratiquement tons les 6tablissements d’une fagon ou d’une autre.
Cette op6ration nous parait trbs large et, meme si certaines dispositions vien-
bid at 336-37.
90Ibid at 338.
9’Ibida at 340. These comments were not retained in the final report.
716
MCGILL LAW JOURNAL/REVUE DE DROITDE MCGILL
[Vol. 45
nent la limiter, 1’encadrer ou la baliser, elle semble destine h rendre les servi-
ces en anglais partout sur le territoire du Quebec.92
These comments, which were not retained in the final report, Lefrangais langue
commune, reflect ignorance or ill will. First, they question the principle of providing
services in English throughout Quebec, although English-speaking people, even if
few in some cases, are present in all regions. Second, if English services were limited
to institutions created by the English-speaking community and recognized by the
Charter of the French language, hundreds of thousands of English-speaking Quebe-
cers would be deprived of the right to English services. By August 1997, the number
of institutions recognized by section 29.1 of the Charter of the French language had
dropped to sixty-eight, of which eleven were residences for seniors that received no
public funding.93 Under this limit, fewer than twenty institutions, including a number
of private homes for seniors, would be permitted to provide services in English off the
island of Montreal. In some regions, no services whatsoever would be accessible. The
CLSC network would be almost completely inaccessible in English, since CLSCs
were created by the government and not by the community, and few enjoyed the bi-
lingual status conferred by section 29.1 of the Charter of the French language. CLSC
services in English would be limited to people living in the central and western parts
of Montreal and the West Island. Not a single hospital in the Montrdngie would pro-
vide services in English to the more than 100,000 English-speaking residents. No
youth-protection services would be available in English outside Montreal. The Eng-
lish-speaking population in the Gasp6, comprising 10% of the total, would be entitled
to no services.
Moreover, these comments of the Interministerial Committee ignore the effects of
the transformation of the health and social services system. The restructuring of serv-
ices, the declining number of public institutions, and the virage ambulatoire had led to
a shift of services away from those institutions traditionally serving the English-
speaking public. As noted, several institutions had closed and others were adapting to
new mandates. In other cases, new services, such as Info-Sant6, were being developed
in the CLSC network to meet new needs. These were designed to be accessible to the
entire public, and service planners were doing their best to ensure their accessibility in
English. Moreover, if specialized services were to be centralized in a single institution
in a region, they would not be accessible in English unless that institution enjoyed
special status under section 29.1 of the Charter of the French language. Consequently,
specialized services in English would be almost completely inaccessible outside
‘Ibid. at 340-41.
9’ Quebec, Ministre de la Sant6 et des Services sociaux, Pmgramme d’accs aux services de sant
et aux services sociaux en langue anglaise pour les personnes d’expression anglaise (Gouvernement
du Qubec, 1997) at Annexe 1: ‘WMise A jour de la liste des 6tablissements de sant6 et de services so-
ciaux reconnus en vertu de l’article 29.1 de la Charte de la langue frangaise qui pourrait servir de
r~fdrence pour la mise A jour des dtablissements d~signms au sens de la Loi sur les services de sante et
les services sociaux” [Directeur P.-P. Veilleux].
2000]. R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
717
Montreal. These points were overlooked in the Interministerial Committee’s Draft
Report.
While the rhetoric was toned down before Le franfais langue commune was
submitted to the Minister in March 1996, the fundamentals of the analysis remained
the same. The broad definition of “English-speaking” person, argued the report, gave
all Quebecers the right to seek services in English. This undermined the government’s
policy of making French the common language of all Quebeces, contributed to “in-
stitutional bilingualism” by granting freedom of choice to individuals using public
services, and threatened the right to work in French. In conclusion, “[l]’analyse de ce
dossier nous amhne t nous demander comment il est possible d’harmoniser le respect
des droits consentis t la ‘communautd d’expression anglaise’ avec les objectifs pour-
suivis par la Charte de la languefrangaise.”
Despite the allegations of institutional bilingualism, it is revealing that a study of
the use of French in 230 health and social services institutions in Montreal, cited in Le
franfais langue commune, does not support the perception that the use of English was
pervasive. The study found that 87% of the institutions that were not designated bilin-
gual by the Charter of the French language used unilingual French signs, and a quar-
ter of recognized institutions were similarly unilingual, even if they had to provide
services in English. Moreover, 96% of non-recognized and 20% of recognized insti-
tutions used unilingual French documentation. Personnel in 97% of non-bilingual in-
stitutions and 21% of bilingual institutions used only French in their written commu-
nications. Finally, French constituted the predominant language of oral communica-
tion in 80% of non-recognized institutions for all categories of personnel, with the ex-
ception of technical staff, where the level dropped to 53%. Oral communications were
predominantly in French at a significant portion of even those institutions recognized
as bilingual, varying with the category of employee: among support staff at 41%,
management at 36%, technical staff at 31%, and those providing direct care at 22% of
those institutions.’
Although these statistics are limited to Montreal, they indicate that the right to
English services did not necessarily promote the widespread and consistent use of
English in the public network. While Bill 142 introduced the notion of some institu-
tional bilingualism into the health and social services sector, not all institutions were
obliged to provide services in English. Neither was bilingualism a requirement for all
personnel at an institution named in an access program, nor were all services provided
by an institution necessarily to be made accessible in English. Moreover, most institu-
tions were sensitive to the notion of rendering their services accessible to people
whose first language was not French. It is true that the OLF had had to arbitrate some
Lefmanfais langue commune, supra note 10 at 128. The issue of English health and social serv-
ices is discussed at 126-28. The English Services Committee had recommended in June 1994 that the
Minister of Health and Social Services endorse a broad definition of English-speaking person in con-
formity with the principles expressed by Th~rise Lavoie-Roux at the time of the passing of Bill 142.
9 bid at 126.
718
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[Vol.45
complaints surrounding the right to work in French, but the small number of cases in-
dicates that this was more an issue of perception and ideology for the Interministerial
Committee than the reality for the institutions and personnel providing services. ‘
2. The Parti Qudb~cois, the Government of Quebec, and the Attack
on “Institutional Bilingualism”
Another significant event occurred during the month that the Interministerial
Committee submitted Le frangais langue commune to Louise Beaudoin. In March
1996, Premier Bouchard, in an unprecedented step, gave a speech in English before
several hundred English-speaking Quebecers at the Centaur Theatre in Montreal. In
some quarters, this was perceived as offering an olive branch after the divisive events
of the referendum and the comments of Jacques Parizeau several months before. Others
perceived the event as a public relations stunt designed to enhance the image of a new
leader who had been in place only since January, and to enhance the image of his
government. The Premier addressed the issue of health care and noted that a person
going for a blood test should not require a language test to obtain services. This com-
ment, widely quoted afterwards in the English media, was interpreted to mean that the
government would respect its commitment to ensure the provision of English serv-
ices.
One month later, the Parti Qu6b6cois held a Conseil national in which the protec-
tion and promotion of French played a central part. In addition to some forty meas-
ures announced by Louise Beaudoin following the publication of the report Lefran-
ais langue commune, the Premier proposed to re-establish the Commission de la
protection de la langue frangaise, give the OLF the power to issue infractions on the
spot for illegal commercial signs, and add five million dollars to the organizations
mandated to apply these measures. Also approved was a modification to the party
program calling on the Parti Qu6b6cois to “[rlevoir la loi sur la sant6 et les services
sociaux pour 6viter que 1’ensemble des 6tablissements de soins de sant6 et de services
sociaux ne soient soumis au bilinguisme fonctionnel et institutionnel? ‘
The Premier stated that the Pard Qu6b6cois “garantit aux anglophones le droit de
recevoir des services sociaux dans leur langue, [mais] il ne faut pas que cela signifie
que tout le personnel soignant doive etre bilingue. II ne faut pas imposer graduelle-
” See Part IV, below.
9′ Parti Qudb~cois, La volont de rjussir: programme et statuts du Parti Qudbdcois (19 November
1997) at 58. This contrasts with recommendations made by the Parti Qubdcois Task Force on the
status of the English-speaking community in a sovereign Quebec. The Task Force recommended that
a sovereign Quebec provide the English-speaking community with health and social services in Eng-
lish and that “the existing provisions of Bil 120 be maintained for this purpose” (see Patti Qub6cois,
The English-Speaking Community: An Integral Part of a Sovereign Quebec (Montreal: Services des
communications du Parti Qubdcois, 1993) at 31).
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
719
ment le bilinguisme A tous les services de sant6.’ The review of the health and social
services legislation to combat “bilingualism” appears to have been part of a compro-
mise with some party members committed to pushing the Pard Queb6cois to revoke
the right to post bilingual commercial signs enshrined in Bill 86,9′ a policy contained
in the party program. The publication only weeks before the Conseil national of the
Interministerial Committee’s Le franVais langue commune, with its comments about
institutional bilingualism in the health and social services network, would have pro-
vided extra ammunition to party members who wished to restrict the use of English.
Raymond Giroux was critical of these new orientations of the Parti Queb6cois in an
editorial in Le Soleil:
Le Parti Quebocois cuv~e Lucien Bouchard veut enterrer la hache de guerre
avec la communautd anglophone du Quebec. Le debat, relanc6 hmdi par la pr6-
sentation du projet de rnovation du programme politique de la formation gou-
vemementale, contient toutefois des 6lments d’un chantage malsant qui con-
treviennent radicalement avee l’ouverture et la r~conciliation prlnes par le
premier ministre …
Le PQ dit reconnaitre les droits fondementaux des anglophones. Dans le meme
souffle, pourtant, il inscrit A son programme la rdvision de la loi 142 garantis-
sant les services de santd et les services sociaux en langue anglaise…
Soyons s&ieux : croire ou faire croire aux Quebcois que cette loi a rendu bi-
lingues dans les faits l’ensemble des 6tablissements du rseau tient de la plus
haute supercherie. Le ministre de la Sant6, Jean Rochon, a d6jA rejet6 cette in-
terpr~tation.1
Predictably, the English-speaking public reacted critically to the change in the
program of the Parti Quebdcois. English-speaking groups, led by Alliance Quebec,
threatened to fight any attempts to change the law. In response, the Minister of Health
and Social Services was quoted as saying that the party executive, which had drafted
the proposal, might not have understood the law and that he saw no reason for legis-
lative changes.’ 1 Days later, the letter from the English Services Committee alleging
that the restructuring of the system threatened English services appeared in The Ga-
zette, fueling additional mistrust and apprehension.”
Further tension between the English-speaking community and the government
ensued in November 1996 when a complaint was filed against the Centre universitaire
de sant6 de l’Estrie (“CUSE”). CUSE had installed some signs in English after the
Sherbrooke Hospital, the only bilingual acute-care hospital in Estrie, was transformed
into part of a long-term care centre. The OLF claimed that these signs infringed the
9′ Quoted in M. Venne, “Bouchard promet des ajouts au ‘bouquet de mesures’ .Le Devoir (29 April
1996) B2.
99 Supra note 64.
,0 “Langage, un chantage mals~ant du PQ” Le Soleil (5 May 1996).
0 K. Wilton, “Don’t Mess with Services to Anglos: Groups” The Gazette (27 April 1996) A5; “Le
PQ invit6 A ne pas toucher A la loi 142″ La Presse (7 April 1996).
” English Services Committee, ‘Q Should Protect English Services” The Gazette (3 May 1996).
MCGLL LAW JOURNAL / REVUEDEDROIT DE MCG/LL
[Vol.45
Charter of the French language and demanded that the hospital remove them. The
Premier refused to intervene and the majority of the signs were removed.
In December 1996, the final access program was submitted to the Ministry of
Health and Social Services. The sixteen regional boards had proposed a substantial
increase in the number of institutions providing some services in English. Approxi-
mately 130 institutions not named in the programs of 1989 were included in the new
programs submitted in 1995 and 1996: 28 CLSCs, 30 hospitals, 29 long-term care
centres, 27 residential centres for the elderly and the handicapped, 2 centres de sant6
(community health centres), 5 child and youth protection centres, and 8 institutions
with multiple missions were added. Every region had added at least one institution
and the Quebec region had proposed 18, including 8 hospitals. This represented a sig-
nificant increase, particularly in a context where the network of public institutions was
shrinking. The programs documented improved accessibility to English services in all
regions. This was based on the number of new services available in English or new in-
stitutions named in the programs. Shortly afterwards, Louise Beaudoin wrote to Jean
Rochon asking that the OLF be formally associated with the elaboration of the pro-
grams. 1
3
0
At its Conseil national in January 1997, the Parti Qu6b6cois passed three more
proposals dealing with the right to English health and social services:
Que le gouvemement balise 1’article 15 de la Loi sur les Services de sant6 et
Services sociaux afin qu’en aucun cas elle ne diminue la port6e des articles 22,
35, 38 et 46 de la Charte de la langue frangaise.
Que le gouvemement r6vise les critres qui permettent aux rgies rgionales
d’indiquer” les 6tablissements devant offrir les services en anglais en tenant
compte, entre autres, du nombre d’usagers d’expression anglaise afin d’6viter
le bilinguisme institutionnel rdserv6 aux 6tablissements reconnus en vertu de
‘article 29.1 de la Charte de la languefrangaise (dont la clientale anglophone
d6passe 50 pourcent) tout en garantissant le droit universel d’accha aux servi-
ces.
Que les programmes d’accessibilit6 linguistique fassent l’objet de directives
claires respectant la Charte de la langue franaise et soient tons r6vins par
1’Office de la langue frangaise (O.L.F) pour s’assurer de leur confornit6 avant
“0 ”Office de la langue frangaise m’informe que les r6gies r6gionales ne sont pas tenues de le
consulter au cours de l’61aboration de leurs programmes d’acchs aux services en langue anglaise.
Elles le font cependant, semble-t-il, de fagon informelle. Compte tenu du fait que nous avons l’un et
‘autre h nous prononcer sur ces programmes comme membres du Conseil des ministres, je me de-
mande si vous ne jugeriez pas opportun d’associer plus formellement l’Office de la langue frangaise
au processus d’1aboration des programmes en question. Je vous en fais la proposition.’ Letter from
L. Beaudoin, Minister of Culture and Communications and Minister responsible for the application of
the Charter of the French Language, to L Rochon, Minister of Health and Social Services (16 De-
cember 1996).
2000] R. SILVER- ENGLISH HEALTHAND SOCIAL SERVICES IN QUEBEC
721
leur adoption par le gouvemement; qu’on 61argisse la consultation aux groupes
d’expression frangaise.”M
These resolutions were adopted unanimously by the delegates. That this should
occur was unusual:
”
Le pass6 enseigne que ce genre de rsolutions aurait pu normalement provo-
quer des debats muscles. I1 n’en fut rien. Pas un seul des 300 participants ne s’y
est object6. Du jamais vu au PQ. Les shires du bunker avaient pass6 le mot.
Quelques d6puts et meme le ministre de la Santd, Jean Rochon, ont donn6 le
feu vert h l’assemble.l5
The Premier explained the resolutions by stating that vigilance was needed to
prevent institutional bilingualism, that some hospitals had exaggerated the need for
English services, and that it was necessary for the Parti Queb6cois to protect the right
to work in French.”
The implementation of these proposals would significantly change the nature of
the right to English services. A revision of the criteria used by the regional boards
based on the number of English-speaking people in a region rather than on their
service needs would have the effect of reducing access to services in regions with
small concentrations of English-speaking people and consequently strip them of the
right to service in their language. This effectively introduces the notion that services
would be available “where numbers warrant”, an approach that was rejected by the
government when Bill 142 was passed in 1986. This would also change the mission of
the regional boards, which are now obliged by law to take into account the linguistic,
demographic, and socio-cultural characteristics of their regions in the allocation of
budgets and the organization of services. Moreover, the call for the OLF to review the
access programs before their adoption would be a significant departure in that it
would give that body a role not then recognized under health and social services leg-
islation. The OLF did not review the 1989 programs prior to their approval by the
government. In addition, the framing of section 15 of the Current Health and Social
Services Act so as not to conflict with parts of the Charter of the French language
would explicitly change the nature of the right already qualified by the availability of
resources and the existence of an access program.” Finally, the call for Francophone
groups to participate in the consultation process ignores the fact that Francophones
4 Patti Quebcois, Conseil national (25 and 26 January 1997). Ss. 22, 35, 38 & 46 of the Charter
of the French language, supra note 12, refer to signs and posters, the issue and renewal of permits,
and the prohibition of knowledge of a language other than French as a condition of employment.
These three emergency resolutions were proposed by the Sherbooke riding associations. This is not
surprising: The Mouvement estrien pour le frangais had been active in challenging the access program
in this region and opposing signs in English at the CUSE.
P. R O’Neil, ‘”Le PQ convainc Bouchard de freiner le bilinguisme institutionnel” Le Devoir (27
January 1997) Al.
‘6 D. Lessard, “Bilinguisme dans la sant6: la vigilance sera de rigueur” La Presse (27 January
1997) All; E. Thompson, “Health Care under Review” The Gazette (27 January 1997) Al.
‘0’ Supra note 7, s. 15.
722
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[Vol. 45
are, for the most part, those responsible for the development and implementation of
the programs, both at the level of institutions and at the regional boards. Furthermore,
the boards of directors of regional boards and participating institutions, composed of
Francophones in the vast majority, must approve the access programs. The proposal
that Francophone groups be consulted seems intended to counter the role of the re-
gional advisory committees, which contain representatives from English-speaking
groups in most regions.
The adoption of the proposals at the Conseil national and the decision of the gov-
ernment to send the access programs to the OLF provoked once again a wave of criti-
cism in English-speaking quarters. One week later, Alliance Quebec organized a pub-
lic meeting at the Centaur Theatre in Montreal to protest the decision to send the pro-
grams to the OLF. Several hundred people heard a succession of speakers denounce
the government and call for the access programs to be adopted immediately.
Some commentators in the French press, while finding the reaction of Anglo-
phones excessive and orchestrated for broader political purposes, refuted the notion of
institutional bilingualism and saw the issue as one where the government, under pres-
sure from its own party, needed to make concessions on some issues to ensure party
unity. Alain Dubuc noted:
Bien des francophones trouveront que la croisade des leaders anglophones est
excessive. Mais il ne faut pas oublier que les d6bats linguistiques sont explosifs.
Et que les politiques de sant6 sont celles qui provoquent le plus d’inquidtude
chez les citoyens. Quand on male les deux, on touche at ce qui engendre les pi-
res angoisses: la peur d’atre malade sans 8tre compris, la peur de mourir dans
l’isolement. Souvenons-nous de l'”affaire Lester”, ce banal incident oi une in-
firmire a r6pondu en anglais Al un journaliste francophone. On en a fait des
manchettes …
Et voilt pourquoi les droits linguistiques en sant6 doivent 6tre abord6s avec une
infinie prudence et une grande d6licatesse. Deux qualit6s totalement absentes
de la d6marche du PQ et du gouvemement Bouchard.
Le principe des services dans leur langue pour les anglophones, reconnu par le
gouvemement Bourassa, et que le gouvernement Bouchard ne conteste pas, ne
pose pas de problimes i Montreal oil les anglophones disposent de leurs pro-
pres institutions. Mais en rdgion, ces services devront 8tre dispensds par des
institutions francophones, et ce sont les rdgies rdgionales de sant6 qui ont iden-
tifi6 les besoins. Selon les militants p~quistes, les r6gies sont all6 [sic] trop loin,
ce qui menace des travailleurs francophones dont les postes deviendraient bi-
lingues et ce qui ravive le spectre du “bilinguisme institutionner’. D’oil la pro-
position d’urgence.
En principe, il n’y a pas de mal il cc que le gouvemement balise le bilinguisme,
pour 6viter les abus et ne pas oublier le gros bon sens. Mais la fagon dont le
gouvemement se lance dans cette rdvision comporte de graves lacunes qui ex-
pliquent pourquoi les anglophones ont d’excellentes raisons d’8tre inquiets,
m~me si le premier ministre Bouchard a affirm6 que leurs droits ne sont pas
remis en question.
D’abord, ce n’est pas le gouvemement qui a d6clench6 ce processus, mais bien
le Pard Qu6b cois, dans un autre tiraillement interne entre radicaux et modr6s.
20001 R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
723
La nature des services de sant6 pour les anglophones a donc 6t6 d6finie dans un
cadre partisan, ce qui est odieux.
Le second problme ddcoule du premier. Le gouvernement Bouchard n’a pas la
r I’OLF, qui n’y connalt rien, la tiche
moindre ide de ce qu’il fera. It a confi
de rdviser les dacisions des r6gies r6gionales, dont c’est le m6tier. Le premier
ministre Bouchard a d’ailleurs montr6 son ignorance du dossier en citant,
comme exemple d’abus, le fait que tous les CLSC de Montrdal prdvoyaient un
accueil bilingue. HI n’y a pas d’abus Ih-dedans. Avec le virage ambulatoire, les
anglophones ne peuvent plus compter comme avant sur leurs h6pitaux et de-
vront s’adresser aux CLSC de leur quartier.”‘
For Michel C. Auger, this was another artificially generated linguistic fight, initi-
ated on the one hand by some extreme Parti Queb6cois members who saw institu-
tional bilingualism in the possibility of even a single institution providing services in
English, and on the other hand by groups such as Alliance Quebec, for whom men-
tion of the OLF provoked a passionate, visceral response. On each side of the divide,
there were “ces gens qui veulent utiliser le d6bat linguistique pour manifester leurs
frustrations politiques. Comme il n’a pas de quoi le faire A partir de la r6alit6, on va
crder une crise artificiellement A coupe des mots boutefeux. ””
Lise Bissonnette argued that the defence of “anglophone rights” and criticism of
the government were motivated by political opportunism and pointed the finger at Al-
liance Quebec, The Gazette, and Eric Maldoff, president of the English Services
Committee. The Quebec Liberal Party, which had also voiced its opposition, had let
itself be manipulated by Alliance Quebec, which “se substitue constamment h
l’opposition politique an Quebec. “‘
In light of the controversy and the questions as to its jurisdiction and competence
to review the access programs, the OLF felt compelled to issue a press release ex-
plaining its role and justifying its intervention.”‘
How does one explain the reaction of the English-speaking population to the gov-
ernment’s decision to send the plans to the OLF? First, the plans were already one
year late and a review by that body would lead to further delays. Second, comments
by the Premier that services in the plans were exaggerated raised concerns that the
OLF would find ways to recommend reductions in English services. The English-
speaking population does not regard the OLF as a protector of its rights. Third, Le
Frangais langue commune, the report of the Interministerial Committee, which had
examined the ambit of the right and its compatibility with the Charter of the French
language, had already put into question the nature and extent of the right. Fourth, at-
tacks on “institutional bilingualism”, now part of Pard Queb~cois policy, were under-
” “Sant, langue et politique” La Presse (30 January 1997) B2.
“‘L.es mots-boutefeux” Le Journal de Montrial (1 February 1997) 14.
“o L. Bissonnette, “La vdritable opposition” Le Devoir (8 February 1997) A12.
“‘”Me de l’Office de la langue frangaise dans le secteur de la sant6 et des services sociaux”
Communiqu6 (13 February 1997).
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 45
stood to be indirect attacks on the right to English services.”2 Fifth, the public was
wary of the government in light of the transformation of the health and social services
system which had already had an impact on institutions traditionally affiliated with
the community and was now directing the community to Francophone institutions.
While it is true that Alliance Quebec, the English media, and the English Services
Committee vociferously opposed these developments, some Francophone opinion
leaders had expressed similar reservations about the measures adopted by the Parti
Qudb6cois. To appease the English-speaking population, the Ministry of Health and
Social Services issued a press release stating that the review of access programs
would not compromise accessibility to services and that the cabinet would approve
them by the end of the spring. The Parti Quebecois, also by press release, underlined
that the resolution adopted at the Conseil national was intended’exclusively to allow
people to have access to employment in the network without having absolutely to
master English. The resolution was not intended to reduce the number of institutions
offering services in English, change the parts of the law dealing with the provision of
services in English, or modify the Charter of the French language in any way. The
Parti Qudbdcois even encouraged Alliance Quebec to hold its public meeting at the
Centaur and communicate these points to concerned English-speakers.”‘
In February 1997, the Ministry of Health and Social Services asked the regional
boards to justify the modification of their access programs. One month later, the OLF
wrote to the Ministry to the effect that the programs submitted by the regional boards
were incomplete and would not permit an adequate evaluation of the consequences of
their application vis-,-vis the Charter of the French language.”” At the same time, the
English Services Committee recommended to the Minister that the access programs
be adopted as submitted by the regional boards. According to the English Services
Committee, the programs met all the necessary criteria for approval in that they were
developed in conformity with the frame of reference prepared by the Ministry and is-
“2 For example, Lyse Leduc, Parti Queb6cois MNA for Mille-Iles, wrote to the Laval regional board
regarding a meeting which had taken place between the regional board and the PQ caucus for Laval:
Lors de cette r6union, il a 6t6 question, entre autres, du Programme d’accin aux serv-
ices de sant6 et aux services sociaux pour les personnes d’expression anglaise de Laval.
Le caucus questionnait A ce moment-14 la pertinence d’assurer un service bilingue dans
deux CLSC du tenitoire lavallois, compte tenu que la population anglophone ne
reprdsente que 4 pourcent des r6sidents et rsidentes de Laval (Letter from L. Leduc to
J.-L. B&tard, President, R6gie r6gionale de la sant6 et des services sociaux de Laval (3
April 1997)).
In fact, according to the 1991 census, the proportion of English-speaking residents in Laval was
14.8%.
‘ Quebec, Ministre de la Sant6 et des Services sociaux, Communiqu6, “La r6vision des pro-
grammes d’accIs en langue anglaise vise A adapter les programmes aux besoins de la population et
non pas A les diminuer” (27 January 1997); Parti Qub6ecois, Communique “Le Parti Quebdcois en-
courage Alliance Qu6bec A tenir sa r6union d’information au Centaur” (2 February 1997).
,4 Letter from N. Ren6, President, Office de la langue franpaise, to P.-A. Par, Deputy Minister of
Health and Social Services (26 March 1997).
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
725
sued by the Minister. Moreover, the programs took into account the reorganization of
the health and social services system and the efforts to adapt the system to the needs
of the English-speaking community. They also recognized the fundamental humani-
tarian purpose of service delivery and identified discrepancies in access between the
English-speaking community and the population as a whole.”‘ In April, the Minister
responded to questions by Liberal MNA Russell Williams at hearings of the Commis-
sion des affaires sociales:
On se rappelle que la demi~re 6tape de ce projet-l4 est le Conseil des ministres.
La loi prdvoit que les plans doivent 8tre prdsentds au Conseil des ministres pour
approbation finale. Alors, on va essayer autant que possible, au moins pour les
rngions oAi il y a le plus de population de langue anglaise, en priorit6, d’avoir
termin6 l’opdration des plans. Mais on va essayer de le faire pour 1’ensemble
des rdgions autant que possible avant l,6t.1
seven
into account
factors: decentralization of
In April, the Ministry commissioned an outside analysis of the access programs
of each region. The report, which included a summary of the reasons given by the re-
gional boards for the modification of their programs, reviewed both organizational
and demographic issues. From the organizational perspective, the regional boards had
taken
the network, de-
institutionalization, non-institutionalization, the virage ambulatoire, reconfiguration
of institutional structures, rationalization, and the different roles of institutions pro-
viding services. From a demographic point of view, the regional boards had linked ac-
cessibility to the number of English-speaking people in a region or CLSC territory.
Yet CLSCs were often named in access programs even where there were only small
concentrations of English-speaking people. This could be for two reasons: the re-
gional boards wanted to ensure minimal front-line services, or since the law made no
mention of “where numbers warrant”, there could be a tendency to see more CLSCs
identified in future access programs.”7 The authors concluded that the legal recogni-
tion of the right to English services had stimulated the English-speaking community
to ensure the application of the law in its own best interests and that the wording of
the law, with no mention of minimum numbers, encouraged the provision of services
to all English-speaking people in a region. Organizational factors would lead to the
naming of additional institutions in access programs despite a smaller institutional
network. Moreover, the implementation of the programs entailed a partial bilinguali-
zation, which appeared to be voluntary and not imposed, of the network. Finally, in
light of the possibility of institutions entering into conflict with some aspects of the
(27 March 1997).
Letter from the English Services Committee to 3. Rochon, Minister of Health and Social Services
“‘ Quebec, National Assembly, Debats de la Commission des affaires sociales (22 April 1997),
online: Assemblde Nationale
& C. Girard, Rapport de recherche portant sur les programmes rdgionaux d’accas
aux services de santg et aux services sociaux en langue anglaise pour les personnes d’expression
anglaise ddposd en 1995 et 1996 au ministre (Gouvemement du Quebec, 1997).
.17
j.Thrgeon
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[VoI. 45
government’s linguistic policies, the OLF could be more involved than previously in
verifying the legitimacy of certain measures in the access programs, such as signs and
the posting of bilingual positions.”‘
While there was little in the report that could be used to justify additional delays
in the adoption of the access programs, word spread that further delays were immi-
nent. For the English-speaking population, such tactics were seen as a way to ampu-
tate the right to services without changing the law. The Gazette noted in an editorial:
“English Quebecers have good reason to worry that the Bouchard government is
gearing up to erode and restrict access to English health services…. By stalling, scut-
tling and eroding the access plans … the PQ government can effectively gut English
health guarantees …,”
In the meantime, a few Francophone groups, some of whom were close to the
Parti Qudb6cois, had expressed their opposition to the access programs and the right
to service in English in general. The Soci6t6 Saint-Jean-Baptiste de Montr6al had
protested against the Montreal access program and intimated that services in English
should only be available to those who did not understand French.1 Le Mouvement
estrien pour le frangais, whose members had piloted the resolutions at the most recent
Conseil national of the Parti Qu6bdcois, was leading an attack in Estrie. Rodrigue
Larose, its vice-president, wrote:
Destin6es A neutraliser le virus inject6 dans les services de sant6 et les services
sociaux par les termites f&lraux de la bilinguisation institutionnelle, si on les
applique, les propositions issues du demier Conseil national du Parti Qu6.bcois
en janvier 1997 sont de nature t ralentir la progression du mal. Ca ne suffit pas:
on s’attaque aux sympt6mes. Un jour, il faudra se rdsoudre A amputer, de la
Loi, les articles 15 et 348 entre autres plagant les anglophones sur un pi&lestal
avec leurs “services (rendus) en anglais” obligatoirement par le personnel fran-
cophone; ils sont les seuls A dominer ainsi comme usagers privil6gi~s des ser-
vices de sant6 et services sociaux dans leur langue … Comme en chirurgie, tons
les moyens doivent 6tre pris pour extirper le mal A la racine jusqu’aux ramifi-
cations 16gislatives. Comme des cellules malades, elles ds&luilibrent
l’organisme et dastabilisent les travailleurs francophones.”‘
In July, the Minister presented a report on the access programs to the cabinet and
was sent back to submit a new proposal. For the cabinet, it was once again a case of
too much bilingualism. Deputy Premier Bernard Landry commented:
0
“8 Ibid. at 39-40.
“19 “pQ Gunning for Anglo Services” (5 July 1997) B4. See also “Hands Off Access Plans” (3 May
1997) B4 and E. Thompson, “English Health Access Plans Face Delays” The Gazette (6 May 1997).
“” Soci~td Saint-Jean-Baptiste de Montrdal, Communiqu6, “Des services en anglais mur A mur” (4
February 1997).
“2, “Le virus du bilinguisme institutionnel dans les h6pitaux et les services sociaux” (18 May 1997),
online: Impdratif frangais
18 February 1998).
2000] R. SILVER – ENGLISH HEALTHAND SOCIAL SERVICES IN QUEBEC
727
On a requ un rapport du ministare de la Sant6 totalement inacceptable, qui allait
beaucoup trap loin. Le nombre d’6tablissements bilingues n’avait absolument
aucun rapport avec les besoins rdels de la minorit6 anglophone. (a nous a ren-
du plus vigilants … C’est rendu presque la moiti6 au Saguenay-Lac-Saint-Jean
… Ce n’est pas acceptable. Les proportions ne sont pas bonnes et tout cela doit
8tre revu de fond en comble”
This was compatible with the opinion of the OLF that the regional boards had
proceeded with an “exc~s de z~le” in drawing up the plans.” Here, once again, the
politicians and the OLF had put themselves in the shoes of health care planners, not
merely in assessing an acceptable level of bilingualism, but also in assessing needs in
which they had no expertise. For Le Devoir, the government had to balance two con-
tradictory rights and find a satisfactory compromise.” Other Francophone commen-
tators were less accepting of Bernard Landry’s comments. Alain Dubuc noted that the
Deputy Premier was in fact denouncing a process conducted almost exclusively by
Francophones, many working in the regions. Moreover, the apprehended “bilin-
gualism” did not constitute a threat to French or a problem that could alarm Quebe-
cers, but instead involved merely a knowledge of English, which was not the same
thing. In taking the example of the Deputy Premier, it was obvious that services in
Saguenay would be limited and occasional.'” Even Le Nouvelliste of Trois-Rivi~res
was critical:
C’est vrai que la Charte de la langue fiangaise interdit un employeur d’exiger
la connaissance de langlais pour embaucher quelqu’un dans un poste ol
l’usage de cette langue n’est pas requis. Mais justement dans la sant6, un ser-
vice public, ne peut-on pas accepter d’Etre un peu moins tfiilons et un peu plus
ouverts A l’environnement? Doit-on absolument mener la guerre linguistique
avec autant de zle dans un domaine aussi sensible et qui ne menace en den la
pr6ponddrance du fran~ais?
La loi reconnait que la communaut6 anglophone a le droit de recevoir des ser-
vices sociaux et de sant6 dans sa langue. Mais on voudrait circonscrire ce droit
en d6limitant scnmpuleusement les aires d’accis. Cela tient de la mentalit6
d’assi6g6 et non de la bonne foi.’26
The reaction of English-speaking groups and the English press was predictably
harsh. The Gazette commented:
In any other Canadian province or, indeed, most countries on Earth, a report
showing health councils were adopting plans to improve hospitals’ communi-
‘2 Quoted in P. O’Neil, ‘Exc&l6d, Quebec mettra un frein A la bilinguisation en sant” Le Devoir (19
July 1997) Al.
123 k
” M. Venue, “Bilinguisme et bilinguisme” Le Devoir (22 July 1997) A6: “C’est un cas oi le Qud-
bec a su maltriser l’art du compromis entre deux droits. Pour trouver ce compromis, le m~canisme en
place actuellement semble 6tre le moins mauvais. Les rdgies r6gionales proposent un plan; l’Office de
la langue frangaise en fait l’6valuation; le gouvemement tranche entre deux bureaucraties”
‘Tes mauvaises batailles linguistiques” La Presse (2 August 1997) B2.
‘2 G. Gagnon, “Une autre crise linguistique” Le Nouvelliste (23 July 1997) 6.
728
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 45
cation with their patients would be greeted with pride and praise. In Quebec-
or at least the Quebec of Mr. Landry and like-minded PQ hard-liners–the abil-
ity of health care institutions to serve people in their own language seems to be
seen as some kind of evil that should be squashed like a superbug in a cancer
ward.’2
In another editorial on the following day, The Gazette commented that Anglo-
phones had good reason to be suspicious of the government’s motives. The govern-
ment’s handling of the access programs indicated that it was more interested in cater-
ing to “a handful of PQ language fanatics” than to the needs of the English-speaking
community.’ Gretta Chambers, one of the most moderate English-speaking com-
mentators, made this comment:
What appears to be bugging the deputy premier is the idea that French-
speaking professionals, when faced with distressed English-speaking patients,
deal with these people in English when they can. This “disturbing” fact is ap-
parently making the government “more vigilant”. What about is not yet clear…
It is the good will that has gone into the access plans for English health and so-
cial services that the Minister finds “unacceptable!’. Over the last eight years,
regional boards, hospitals, CLSCs and the English-speaking community have
drawn up guidelines in conformity with Bill 142 … These access plans have
purposely been kept as flexible as possible so as not to lock regions and institu-
tions into rigid hiring practices…
The Quebec government now appears to be determined to undo all this by de-
creeing good will to be bad form and by setting quotas for the provision of
English health-care services. To assist in this endeavour, it has brought in the
Office de la langue fiangaise to rule on the acceptable amount of English to be
allowed to roam the health-care system.”
Reacting to the cabinet decision to reject the Ministry report, a number of Anglo-
phone groups, including Alliance Quebec, the Voice of English Quebec, Outaouais
Alliance, the Committee for Anglophone Social Action, the Townshippers’ Associa-
tion, Chateauguay Valley English-Speaking People’s Association, the Coasters’ Asso-
ciation, and the Council for Anglophone Magdalen Islanders formed a coalition to
pressure the government to adopt the access programs and to refute the allegations
made by some members of the cabinet about exaggerated needs and widespread bi-
lingualism in the network.'” A request for a meeting with the Minister went unheeded.
‘””Landry Stoops to New Low” The Gazette (22 July 1997) B2.
‘ “No Trust on Health Care” The Gazette (23 July 1997) B2.
‘2 “On Health, Landry Sees Good Will as Bad Form” The Gazette (25 July 1997) B3.
‘oLouise Beaudoin, Minister responsible for the Charter of the French language, had declared that
it was unacceptable to require nurses working for Info-Sant6 in the Montlrdgie to be bilingual despite
the presence of over 100,000 English-speaking people in the region: “I1 y a environ 10 pourcent
d’anglophones dans cette rgion, mais la rdgie exige le bilinguisme comme condition d’embauche
pour la douzaine d’infirmi~res qui ceuvrent au service Info-Santd r6gional. Je ne peux accepter cela, lA
oit il y a 90 percent de francophones’, cited in N. Delisle, “Vingt ans apr~s la loi 101, le fi-angais a fait
des progr~s ‘signiflcatifs mais inachev6s.’ La Presse (21 August 1997) Bl.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
729
In the meantime, the Minister, in replying to questions raised by Pierre Paradis, health
and social services critic for the Liberals, stated that the government counted on com-
pleting its work in the autumn.”3′ In a letter sent the same day to Alliance Quebec
president, Michael Hamelin, the Minister commented that the government “n’a pas
comme projet de retarder indftment l’adoption des programmes d’accbs. Certaines
prdcisions sont requises et nous comptons faire diligence it ce niveau.”
In September,
it was announced that the regional boards would be asked to review their access pro-
grams.
In the same month, the government published the final report on the mandate of
its agencies, commissions, and committees. Chaired by Parti Qudb6cois MNA Joseph
Facal, the Working Group on the Examination of Government Agencies (“Facal
Committee”) made far-reaching recommendations on the operation of all government
bodies, including the English Services Committee, one of seventeen bodies set up to
advise the government on various issues related to health and social services. The Fa-
cal Committee recommended that the provincial status of five of these be maintained,
while the others be merged, abolished, or downgraded to “ministerial” status. The Fa-
cal Committee recommended that the English Services Committee lose its provincial
designation and that it become a consultative committee answerable to the Minister
and subject to abolition at any time.’33 For the English-speaking community, this rep-
resented another attempt to undermine its already limited influence.’
At the end of November, the Parti Quebdcois held another Conseil national at
which language was discussed. The delegates adopted a resolution, presented once
again by the Sherbrooke riding associations, to this effect:
Que le gouvemement, en dehors des organismes reconnus bilingues par la
Charte de la langue frangaise, mette fin A la discrimination basne sur la con-
naissance d’une langue seconde, en interdisant A ‘administration d’exiger, lors
de 1’embauche, de promotion ou de mutations, la connaissance par les em-
ployds d’une autre langue que la langue officielle.,3
This resolution, which specifically envisaged the health and social services sector,
would have the effect of modifying the Charter of the French language. It aimed to
reduce the number of bilingual positions and would mean that knowledge of English
could not be required in the vast majority of health and social service institutions in
Quebec. Its implementation would result in a gradual decline in bilingual personnel in
institutions named in the access programs and would consequently, over time, erode
the ability of those institutions to provide services in English. With the exception of
Letter from J. Rochon to P. Paradis (26 August 1997).
32 Letter from J. Rochon to M. Hamelin (26 August 1997).
’33 Quebec, Ministre du Conseil exdcutif, Groupe de travail sur 1’examen des organismes gou-
vemementaux: Rapport (Gouvemement du Quebec, 1997), online: Ministre du Consil exdcutif
“4 See G. Chambers, “Pulling Teeth from an Anglo Watchdog” The Gazette (3 October 1997) B3.
“3 Parti Queb6cois, Conseil gdnral (November, 1997).
730
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 45
those enjoying bilingual status under section 29.1 of the Charter of the French lan-
guage, an institution would be prohibited from seeking the knowledge of English
when replacing bilingual personnel retiring or leaving their positions. This was a
backdoor attack on the right to English services, expressed in terms of ending dis-
crimination based on the knowledge of English.'” A request by Alliance Quebec to
meet the Premier to discuss the effect of the resolution and the delays in adopting the
access programs went unanswered, and the Minister stated that the delay did not af-
fect the accessibility of service delivery in English. While the resolutions adopted by
delegates of the Parti Qu6bdcois did not bind the government, they were hardly reas-
suring to the English-speaking public. Neither was the message well-received else-
where:
Nous savons cependant que cette vision 6trique des droits linguistiques ne cor-
respond pas t la vision du gouvemement Bouchard, ni t celle de la majorit6
des membres du PQ, ni au point de vue des 61ecteurs de ce parti, et encore
moins t celle de ‘ensemble des Qu6becois.
11 n’en reste pas moins que, dans un parti qui affiche un minimum de principes,
une rsolution comme celle-lt n’auraitjamais dfi passer. Cela rv~le encore une
fois, de fagon crue, la derive des instances de ce parti et du problme que pose
la domination de groupes radicaux, que ce soient les fous de la langue ou les
socio-d~mocrates d’un autre temps.
Meme si le premier ministre Bouchard a appris t contr8ler leurs d6bordements
les plus fous, on l’a vu au Conseil national avec la dfaite des soi-disant socio-
d6mocrates, il n’en reste pas moins que ce hiatus entre le PQ et la soci6t6 qu6-
b coise oblige le gouvemement h des contorsions, h des compromis qui ne sont
pas dans l’intret public. Nous payons toes pour les psychodrames id~ologi-
ques du Pati qub cois.”‘
3. Ministry Intervention and the Consequences: From Nineteen to
Zero in St. Maurice
Following the adoption of the resolution at the Conseil national of the Parti Qu6-
b6cois in November 1997, the Ministry of Health and Social Services asked the re-
gional boards to review their access programs in light of the changes that had taken
place since their submission, which in some cases amounted to two years. The Minis-
” A group in the Outaouais, Imp&atif frangais, had taken up the same call, alleging that Fran-
cophones were the subject of discrimination, in that they were increasingly being excluded from po-
sitions because they did not speak English. The group did not, however, submit any evidence of this
(see P. O’Neil, “Impatif frangais crie A la discrimination!’ Le Devoir (6 November 1997) A2). A
second resolution at the Parti Qu6b&ois Conseil national that recommended the government pay bo-
nuses to employees required to know a language other than French was defeated. Although its pro-
posers said it would make administrators think twice before requiring bilingualism, others argued that
it would backfire because the prospect of a pay increase would encourage more people to speak Eng-
lish on the job.
” A. Dubuc, “Un parti en otage” La Presse (15 December 1997) B2.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
731
try also asked the boards to identify the number of existing positions requiring a
knowledge of English and those that would be needed under the new programs. It was
underlined that the services identified would become a right for English-speaking us-
ers and that their inclusion must therefore correspond to the ability of institutions to
provide them. The boards were informed that, according to a preliminary analysis, it
seemed possible to anticipate a presentation of the programs to the cabinet between
January and March 1998.38
In early 1998, it was reported that Ministry officials were putting pressure on re-
gional boards to reduce the services in their access programs. After receipt of the
Ministry’s letter asking them to revise their programs, some boards received visits or
follow-up calls, intimating that Anglophones could sue if the services identified in the
programs were not available at all times.3′ While the Minister denied this and the
majority of boards stood by their original access programs, the call for revision and
resulting Ministry intervention had important ramifications in one region. In March
1998, the Mauricie-Bois-Francs regional board voted unanimously to identify no
English services in the institutions of its region and to renew an agreement relating to
the availability of some English services in Montreal. Instead of an access program, it
proposed a “policy” facilitating access to English services.'” The board, arguing also
that its institutions had not understood the legal implications of being designated in an
access program, explained itself in this way:
The revision of the Access Plan led to the conclusion that the demand for
services in English is practically inexistent at all of the 17 institutions mention-
ned [sic] in the plan of 1995 and even for the services designated since 1989.
Thus, no establishment appears justified to be designated according to section
348 of the Health and Social Services law. However, the regional health board
still wants to encourage and maintain the good will of its institutions to respond
to the needs of its anglophone community, in English, even if it represents only
from 3 to 15 requests a year per institution. To that effect, a policy was drawn
up in order to ensure a genuine accessibility to all services, everywhere on the
territory, instead of only certain services outlined in a document, providing a
theoretical AccessPlan.’
4′
The board disregarded the recommendations of its own regional committee on
English services, which had proposed that fourteen institutions in the region be in-
cluded in an access program to provide some services in English. When the Montreal
boards (between 28 November 1997, and 27 January 1998).
“‘ See letters sent by P.-A. Par6, Deputy Minister of Health and Social Services, to the regional
39 E. Thompson, ‘Anglo Health Plans Snagged: MNA Charges Bad Faith” The Gazette (3 March
1998) Al; C. Clark & I Block, “No Cuts in English Service: Rochon-Health Minister Denies Pres-
sure on Regional Boards to Scale Down Planned Access for Anglophones” The Gazette (21 March
1998) A3; ‘Tampering with Access Plans” The Gazette (21 March 1998) B4.
CARR-98-14″ and “CARR-98-15″ (25 March 1998).
’40 Quebec, Rdgie rdgionale de la sant6 et des services sociaux Mauricie-Bois-Francs, ‘Rdsolutions
14 Quebec, Rdgie rdgionale de la sant6 et des services sociaux Mauricie-Bois-Francs, Press Release
(25 March 1998).
732
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGLL
[Vol. 45
regional board declined to renew the agreement, based on the existence of the services
in its 1989 access program, the Mauricie-Bois-Francs region found itself in a situation
that in all likelihood infringed the provisions in Bill 142 calling on each regional
board to develop an access program.”2 An editorial in Le Nouvelliste, the daily news-
paper of the region, pointed the finger at the Bouchard government for creating such a
situation:
Si le gouvemement Bouchard n’avait pas remu6 la poussi~re linguistique dans
le rdseau de la sant6, ran dernier, en s’indignant que trop d’6tablissements
soient d~signds pour accommoder les malades de langue anglaise, la Mauricie
ne se retrouverait pas au cceur d’une controverse linguistique qui n’a rien t voir
avec la ralit6 r6gionale.’ 3
In May 1998, the Minister stated that five or six access programs were ready and
that his goal was to terminate the whole operation by the end of June. This did not oc-
cur. Asked again by Liberal MNA Russell Williams in June, the Minister noted that
the date had been pushed back to Labour Day and then to the end of October 1998.
However, Premier Bouchard was reported to have said that the access programs
would have to return once again to the OLF for review.'”
The approach of the regional board in Mauricie-Bois-Francs raises important
questions about the operation of the legal guarantee to English services in regions
with few English-speaking residents. In that region, English-speaking people num-
bered 5,600 (1.25%) of a population of 459,000.”‘5 It is not entirely clear if the small
demand for services in English reflects the tiny population, or if people seek services
in French because they are fluently bilingual and comfortable in doing so. Limited
demand for services in English in the region may result from the fact that English-
speaking residents do not wish to draw attention to their minority status. It could also
mean that English-speaking people of the region choose to go elsewhere, particularly
‘ As a result of Bill 142, s. 348 of the Current Health and Social Services Act, supra note 7, states:
Each regional board, in collaboration with institutions, must develop a program of ac-
cess to health services and social services in the English language for the English-
speaking population of its area in the centres operated by the institutions of its region
that it indicates or, as the case may be, develop jointly, with other regional boards, such
a program in centres operated by the institutions of another region …
In consequence, a decision not to name any English services in an access program, coupled with the
refusal of Montreal to agree to provide services in English, would not% in my opinion, constitute an
“access program” in accordance with the law.
’43 G. Gagnon, “Sur fond de tension politique” Le Nouvelliste (27 March 1998) 8.
“A Quebec, National Assembly, Debats de la Commission des affaires sociales (4 May and 17 June
1998), online: Assembl~e Nationale
is Bullying an Aging, Shrinking Anglophone Community” The Gazette (19 September 1998) B5.
“‘ This refers to people whose first official language spoken is English. Numbers ranged from 70
(0.58%) to 1,250 (1.60%) per CLSC territory (see Quebec, R~gie rdgionale de la sant6 et des services
sociaux Mauricie-Bois-Francs, Programme d’accs ai des services de santd et des services sociaux
pour lespersonnes d’expression anglaise (1995) at 21).
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
733
to Montreal, to receive services in their language, or perhaps signify that people
needing services do not seek them at all. Moreover, if a regional board with a small
population of English-speaking people decides that services should be furnished in
English outside the region with no legal obligation to do so locally, this would have
the effect of undermining the legal guarantees introduced by Bill 142 in 1986.'” If
services are furnished according to a policy based on the good will of institutions, this
appears to create a situation similar to that which existed prior to the passing of Bill
142.
The statement of the Mauricie-Bois-Francs regional board that institutions had
been unaware of their legal obligations is disturbing. This refers to concerns allegedly
raised by the Ministry that institutions could be sued if English services named in an
access program were not accessible at all times. Institutions previously willing to be
included were now afraid of possible legal consequences. In fact, institutions and re-
gional boards receive few complaints about linguistic inaccessibility, and there have
been no cases of threats to sue because services were not available.
4. Legal Action as Catalyst
In January 1999, Alliance Quebec applied for a writ of mandamus against the
Quebec government on the ground that it had not respected its obligation to approve
the access programs as stipulated in the Current Health and Social Services Act. In
the same month, the government approved access progams for Bas-Saint-Laurent,
C6te-Nord, Gasp6sie-Iles-de-la-Madeleine, Lanaudibre, Nord-du-Qu6bec, the Ou-
taouais, and Saguenay-Lac-Saint-Jean. Shortly afterwards, it approved a program,
containing minimal services, for the region of Mauricie-Bois-Francs. The inclusion of
some services was presumably intended to ensure compliance with the law. These
eight regions contain less than ten percent of the English-speaking population of Que-
bec.
Other regions, including those with substantial numbers of English-speaking peo-
ple, continued to pose a problem for the government. With a court date set for June
1999, Pauline Marois, named Minister of Health and Social Services after the election
of November 1998, wrote to regional boards in Estrie, Laurentides, Montrdal-Centre,
Chaudi~re-Appalaches, the Montdr6gie, Laval, and Abitibi-T6miscamingue in March
1999. She told them that she intended to present the programs in her possession to the
cabinet in May and that their revised access programs would not receive a favourable
recommendation. Failure by the regional boards to submit programs with the desired
changes would result in the presentation to the cabinet of the programs already sub-
mitted. In the probable event of the refusal by the cabinet to approve those programs,
’46 The regional board justified its decision in part by citing the words of Th6rbse Lavoie-Roux, the
Minister at the time of the passing of Bill 142 in 1986, to the effect that a region could negotiate inter-
regional agreements where the English-speaking population was small.
MCGILL LAW JOURNAL / REVUE DE DROITDE McGL
[Vol. 45
the Minister would subsequently advise the regional boards of the approach that the
government would take.
The attempt by the Minister to cut back English services in the access programs
in these regions came a month before yet another Conseil national of the Pard Queb6-
cois. A resolution to repeal Bill 142 was presented by Estrie delegates and, after inter-
vention by the Minister, tabled until the next meeting. However, it was made clear
that, if Bill 142 was to be respected, its application would be tightened to reduce the
accessibility of English services in the health and social services network.'”
Days before the court date in June, the government approved programs for all re-
gions except Montreal and Estrie. Between the date of the hearing and the judgment,
the government passed the two remaining progams.
It seems likely that the prospect of a court case incited the government to approve
the programs rapidly. Aware that the failure to approve access programs would con-
stitute non-compliance with health and social services legislation, it ensured that all
programs were passed before the court had the opportunity to render its decision.
While the majority of the programs were approved in conformity with the proposals
originally submitted by the regional boards, the government unilaterally cut back
services in several regions where the English-speaking populations were small.” By
July 1999, almost five years after the government had asked the regional boards to
initiate the revision process, all the programs had been enshrined by order in council.
C. Searching for an Understanding
Analysis of events since the election of the Parti Quebdcois in September 1994
indicates a marked reluctance on the part of the government to adopt the English-
service access programs. While originally attributing delays to the restructuring of the
health and social services system, it became apparent that the government had to deal
with opposition by some of its own ministers and party members hostile to the use of
English by Francophone personnel in the health and social services sector. Publicly
committed to promoting the use of French and enforcing the Charter of the French
language, the government nonetheless refused to proscribe the use of English on
” See S. Gordon, “Anglo Access Assailed” The Gazette (26 April 1999) A5, and “Critics Decry
‘Intimidation”‘ The Gazette (27 April 1999) A5; K. Gagnon, ‘es
troupes p&luistes contestent plu-
sieurs ddeisions minist~rielles, et surtout l’aide promise aux Expos” La Presse (26 April 1999) A4; P.
Cherry, “Premier Cowed by PQ Zealots, Charest Says” The Gazette (28 April 28, 1999) AS. See also
the critical editorial by A. Gruda, ‘La fixation linguistique’ La Presse (30 April 1999) B2, which
noted that the issue was still open although the resolution had not been adopted: “Ce chapitre plut6t
honteux des relations entre le PQ et la minorit6 anglophone n’en est pas ferm6 pour autant. En fait, la
rhdtorique qui alimente ce combat d’arri~re-garde s’est malheureusement frayde un chemin jusqu’aux
plus hautes sphres de pouvoir, soitjusqu’au Conseil des ministres’.
r’the following
regions were particularly affected: Saguenay-Lac-Saint-Jean, Abitibi-
Tmiscamingue, Laurentides and Mauricie-Bois-Francs. There were also some unresolved questions
about the organization and delivery of inter-regional services.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
735
commercial signs, as written into its party program. However, faced with new access
programs that proposed to expand the number of institutions providing services in
English, the government could legitimately acquiesce to demands from some mem-
bers of its own party that the right to services in English be reviewed to prevent insti-
tutional bilingualism and examined by the OLF to ensure conformity with the Charter
of the French language. This can be understood as the essence of a compromise with
those party members so that, outside the health context, the government would not
have to resort to the “notwithstanding” clause in the Charter to prohibit the use of
English or other languages on commercial signs.”‘
Thus the government’s actions can largely be understood as an attempt to mini-
mize conflicts within its own party, rather than to respond to concerns of Francophone
personnel worried about using English in their dealings with English-speaking people.
While the hostile reaction from English-speaking groups and media to the adoption of
the resolutions by the Parti Qudb6cois was entirely predictable, the majority of French
editorial writers who discussed this question were equally critical of the Parti Quib6-
cois and the Parti Que’bcois government’s handling of the issue. French editorialists
refuted the allegations of rampant institutional bilingualism in the health and social
services network. Moreover, they accused the government of stirring up an unnecces-
sary language war and of bad faith in compromising the right of access to English
services by pandering to the concerns of party members whose views were unrepre-
sentative of Quebec society as a whole.
By requesting a review of the access programs at the end of 1997, the Ministry of
Health and Social Services likely expected the regional boards to reduce the number
of institutions providing English services from those submitted in 1995 and 1996,
while at the same time providing at least as many services and institutions as those
originally approved in 1989. This would enable the government not only to respond to
the Parti Qu6b6cois members who pushed through the resolutions aimed at curtailing
the use of English in the health care sector, but also to respect its commitments to the
English-speaking population, which was worried that services would be cut back. It is
to the credit of the regional boards that, for the most part, they resisted pressure from
the Minister and Ministry to reduce the services in their programs for political reasons
that had nothing to do with service delivery.
It is ironic that, with the exception of the English Services Committee, whose
recommendation to approve the access programs in their original form was ignored,
there was no consultation by the government with any recognized English-speaking
group subsequent to the submission of the programs by the regional boards until a
meeting between the Minister and the Townshippers’ Association in May 1999. In this
respect, the English-speaking community was effectively excluded from the revision
process after the elaboration of the programs in 1995 and 1996. It was this sense of
frustration and impotence, coupled with the long delays, that led Alliance Quebec to
‘4 9Supra note 11, s. 33.
MCGILL LAW JOURNAL / REVUE DE DROiT DE McGi
[Vol. 45
[o
initiate court proceedings in January 1999 to force the government to approve the
programs.
IV. The Right to English Health and Social Services and the
Charter of the French language: Conformity or Incompatibility?
Much discussion of the right to services in English has centred on its compatibil-
ity with the Charter of the French language, and the government has stated on several
occasions that ensuring the revised access programs’ conformity with the Charter of
the French language caused the delays in their adoption. Most of the controversy has
centred on the need for Francophone personnel to use English in their dealings with
English-speaking people receiving services. Some critics believe that the increased
number of institutions identified in the new programs, extending beyond those tradi-
tionally offering services in English, amounts to a form of “institutional bilingualism”
within the health and social services system. This change constitutes, in their eyes, an
unacceptable deviation from both the letter and the spirit of the Charter of the French
language, which stipulates that French is the language of civil administration, with the
exception of those bodies that enjoy special recognition because they provide services
to people who, in the majority, speak a language other than French.'” Moreover, the
right conferred by Bill 142 and operationalized in the access programs has an effect
on the right of workers to carry on their activities in French and on institutional man-
agement which seeks to ensure that services are available in English to English-
speaking users. “‘
In adddition to the language of work, the right to English services raises questions
about whether health and social service institutions can install signs in English, as
well as in French, so as to orient and inform their English-speaking users. This has
been contentious in recent years. In light of these issues, it is interesting to examine
the criteria used to evaluate whether a health and social services institution can require
that personnel have some knowledge of English and to examine in what context an in-
stitution can use English in signs designed for people using its services.
A. The Right to Work in French
The Preamble of the Charter of the French language encapsulates its spirit and
provides the foundation for the concrete rules that follow:
[Whereas] the French language, the distinctive language of a people that is in
the majority French-speaking, is the instrument by which that people has ar-
ticulated its identity;
Whereas the National Assembly of Quebec recognizes that Quebecers wish to
see the quality and influence of the French language assured, and is resolved
‘5oSupra note 12, ss. 14-29.1.
… See especially ibid, ss. 4,46.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
737
therefore to make of French the language of Government and the law, as well
as the normal and everyday language of work, instruction, communication,
commerce and business;
Whereas the National Assembly intends to pursue this objective in a spirit of
fairness and open-mindedness, respectful of the institutions of the English-
speaking community of Quinbec, and respectful of the ethnic minorities, whose
valuable contribution to the development of Quebec it readily acknowl-
edges … l5
The right to work in French is expressed as a fundamental language right, and the
requirement that a worker know a language other than French to obtain employment
is prohibited unless justified by the employer. Section 46 states:
An employer is prohibited from making the obtaining of an employment or of-
fice dependent upon the knowledge of a language other than the official lan-
guage, unless the nature of the duties requires the knowledge of that other lan-
guage.
The burden of proof that the knowledge of the other language is necessary is on
the employer, at the demand of the person or the association of employees con-
cerned or, as the case may be, the Office de la langue frangaise. The Office de
la langue frangaise has the power to decide any dispute. 3
This part first reviews the general application of section 46 of the Charter of the
French language and the decisions rendered by the OLF relating to section 46 in the
health and social services sector. The impact of this jurisprudence on the ability of in-
stitutions to provide services in English is then analyzed.
1. Application of Section 46 of the Charter of the French language
In light of the importance of the right to work in French, it is interesting to note
that the OLF has dealt with a suprisingly small number of cases under section 46
since the Charter of the French language was passed in 1977. In its 1979-80 annual
report, the OLF reported that it had ruled on 10 cases and that 6 others were pend-
ing.”M In its 1996-97 annual report, the OLF noted that a total of 277 files had been
opened over the previous nineteen years. While the OLF had rendered 78 decisions,
the person or association laying the complaint had desisted in 157. Thirteen cases had
been abandoned, 3 files closed, and in one case, the competition for the position in
question had been cancelled. Another 25 files were pending. Of the decisions ren-
dered on the merits by the OLF, knowledge of English was judged necessary in 41 out
of 62 cases. Knowledge of Chinese and Italian were judged necessary in one case
each and knowledge of Greek unnecessary once. Nine cases were inadmissible and, in
3 cases, there was no decision to make because the employer voluntarily renounced
‘5 Quebec, Office de la langue frangaise, Rapport d’activit6 1979-1980 (Gouvernement du Quebec,
1980) at 5.
738
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 45
the linguistic requirement for the position.’5 Since that time, the OLF has ruled in at
least two more cases dealing with the health and social services sector.” In one of
these cases, the employer was able to justify the knowledge of English as a job re-
quirement. In the other, the OLF rejected the decision of the employer to require the
ability to speak fluently a language other than French.
Analyses of the early decisions of the OLF noted the development of criteria to
evaluate the necessity of another language for a particular position and the realization
of some of the objectives of the Charter of the French language. A review undertaken
by Alain Prujiner in 1981 underscored the need to show, first, the existence of a spe-
cific linguistic need directly linked to an essential aspect of the task at hand, and sec-
ond, the absence of possibilities other than the requirement of sufficient linguistic
competence. These criteria must be considered for each position, since a generaliza-
tion of linguistic requirements for a whole category of jobs would be unacceptable if
the goal could be accomplished by requiring a language other than French for certain
limited positions.’ A study published by Louis Garant in 1982 concluded as follows:
Les buts fixes par le 16gislateur, lots de l’adoption de la Charte, semblent avoir
6t6 atteints. En effet, l’usage de la langue frangaise, a 6t6 favoris6 et prot~g6 en
e qui a trait t la langue du travail…
La Charte a certes eu un effet curatif quant 4 la langue du travail, comme les
‘on ne peut passer sous silence l’effet pr6-
d6cisions nous indiquent. Toutefois,
ventif de ces dispositions. La force dissuasive de cette loi est sans doute son
impact le plus grand, bien que moins facile A 6valuer.”‘
An analysis of the decisions of the OLF up to 1982 permitted Raynald Mercille to
draw the following conclusions. First, the OLF recognized the right of employers to
provide services in the language of their clientele. In situations where the employers
provided services to the public, the OLF frequently acknowledged the need for an-
other language when the existence of a non-Francophone clientele could be estab-
lished and when an appropriate linguistic requirement was the only way to furnish
adequate services to that clientele. Second, it was possible to establish the policies and
principles restricting the right of the employers to invoke the necessity of another lan-
guage. The OLF would not be satisfied by the good faith of employers in imposing
the linguistic requirement, but would require proof of the absence of any other means.
Neither would the OLF permit policies of general bilingualism, but instead would re-
quire employers to develop selective linguistic requirements that did not necessitate
all personnel for a certain category of position to be bilingual. Moreover, the OLF
.Quebec, Office de la langue frangaise, Rapport annuel 1996-1997 (Gouvemement du Quebec,
,’ As of October 1, 1999. Two other cases involving health and social services institutions had been
1997). This covers the period up to March 31, 1997.
heard and were under deliberation as of this date.
‘ A. Prujiner, “Les d6cisions de 1’Office de la langue frangaise en vertu de l’article 46 de la Charte
de la languefranfaise” (1981) 22 C. de D. 827 at 836-37.
,’ L. Garant, “La Charte de la langue frangaise et la langue du travail” (1982) 23 C. de D. 263 at
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
739
would sometimes incorporate political considerations and criteria into its decisions.
The employers would have to prove five points to succeed: (1) the existence of a lin-
guistic requirement; (2) the specific character of this requirement; (3) that this re-
quirement was directly linked to the position’s main tasks; (4) that the employer had
exhausted all other possibilities; (5) that the linguistic requirement conformed to a
criterion of proportionality of the linguistic group to be served.’ 9 For Mercille, the
OLF had developed criteria beyond the simple balance of probabilities required by the
civil law in the matter of proof and the general requirement of good faith in the or-
ganization of tasks. In his opinion, “‘Office tranche un litige avec une partialit6 lin-
guistique conforme h sa mission.””
Emmanuel Didier noted in 1987 that decisions rendered by the OLF tended to re-
duce bilingualism as much as possible and to make French the only language of work,
even though the Charter of the French language speaks only of the right to work in
French.’
6′
The OLF itself has summarized the application of section 46 as follows: the
knowledge of English or another language can be required if the institution can dem-
onstrate the necessity to the OLF where a person or union challenges the linguistic re-
quirement. In such a case, in accordance with section 46, the burden of proof lies on
the employers. The OLF will take into account the real clientele, rather than the po-
tential clientele; employers must show that they have envisaged other measures that
could avoid or reduce the requirement for English or another language; the fact that
employers have provided means to reduce the impact of the requirement for English
or another language does not exclude the obligation to prove necessity; each post is
examined individually, even if the challenge applies to several positions of the same
nature; the level of linguistic competence is evaluated. Moreover, employers can take
‘”9 R. Mercille, ‘La langue du travail: analyse de la jurisprudence relative L ‘application des articles
41 t 50 de la Charte dela langue fiangaise” (1985)45 R. duB. 33 at 52-58.
60 Ibid at 62.
1
61 E. Didier, “The Private Law of Language” in Bastarache, supra note 17, 312 at 362. The author
also points out the contradiction between the spirit of the Charter of the French language and its ap-
plication by the OLF and cites as an example the “measures to be taken!’ to promote the francization
of head offices. The standard agreement mentioned the need “to examine the possibility of transfer-
ring to a less strategic position those people who cannot satisfy the language requirements of their po-
sition.” As cited from Quebec, Office de la langue fi-anqaise, Entente particulire type pour les siages
sociaux, Direction des programmes de francisation (30 September 1981) at 15. Didier concludes that
it is difficult to reconcile such a measure with s. 142 of the Charter of the French language, which re-
quires that “francization programs … take account of the situation of persons who are near retirement
or of persons who have long records of services with the business firm” or even with s. 45, which
protects French-speaking workers from discrimination.
740
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 45
advantage of a person’s knowledge of English without formally attaching a linguistic
requirement to the position.”2
In light of these criteria, it is interesting to analyse the decisions rendered by the
OLF in the health and social services sector.
2. Jurisprudence of the Office de la langue frangaise under Section
46 in the Health and Social Services Sector
The right to services in English imposes on some institutions the obligation to
furnish some of their services in that language. There is consequently a need for some
of their personnel to have a knowledge of English and for the institutions to modify
their hiring requirements as a result. This could theoretically contravene section 46 of
the Charter of the French language. How has the OLF ruled in cases pitting the right
to work in French in health and social service institutions against the right to receive
services at those institutions in English?
Between the passing of the Charter of the French language in 1977 and February
1999, the OLF heard seventeen cases where it considered the application of section 46
to health and social services settings. Fifteen of these cases involved the knowledge of
English as a linguistic requirement. One case also dealt with the knowlege of another
language. Another case involved the knowledge of Greek and another of Cantonese.
The OLF ruled in sixteen cases and decided that there was no need to intervene in the
remaining case, since even the complainant admitted the necessity of a knowledge of
English.
It seems worthwhile to examine whether the introduction of the legal guarantee to
English services in Bill 142 has had an impact on the decision-making of the OLF
a. Decisions Rendered prior to Bill 142
The OLF rendered seven decisions prior to the passing of Bill 142 in December
1986, six of which involved the challenge of the employer’s requirement of a knowl-
edge of English. The OLF held that the requirement for a knowledge of a language
other than French was justified in each case. Even in the single case where there was
no direct contact between the employee and users of the services, the OLF held that
the requirement of the knowledge of English by the employer was justified.’ The
employer there had regrouped all tasks requiring the use of English in the research di-
vision under one position, that of a “commis principal”, whose tasks included work-
ing with different committees and the preparation of scientific texts. The OLF found
“‘ Quebec, Office de la langue firangaise, Balises pour l’application de la Charte de la languefran-
dans les pro-
faise dans les dtablissements de santd et des services sociaux i4signis ou i
granmnes d’accas auxpersonnes d’expression anglaise (Montr’al) at 5 [undated].
” Syndicat des travailleurs unis de Pinel v. Institut Phillipe-Pinel de Montrial (6 December 1984),
na 46-069, [1983-1991] Decisions sur la langue du travail 46.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
741
that knowledge of English was justified for this position in the research department of
a specialized psychiatric centre whose activities extended outside Quebec. The OLF
also ruled in one instance involving a private clinic dispensing services to the public,
holding knowledge of English to be justified for a nursing position involving direct
contact with a clientele that was 83% English-speaking.’65
In the four cases dealing with the employer’s requirement of English concerning
positions in public health and social service institutions, the OLF held that the lin-
guistic requirement was necessary. These decisions reveal the orientations of the OLF
in dealing with service delivery in the para-public sector. The requirement for a bilin-
gual secretary-receptionist in a CLSC where 14.5% of the population on the territory
was Anglophone and where the population whose first language was neither English
nor French amounted to 47.8% was justified. In that territory, English was generally
the language of use of “allophone” users and 75% of calls received by the CLSC were
in English. The OLF held that the CLSC must be able to communciate with the cli-
entele that it has an obligation to serve and that English must be used for this pur-
pose.” The OLF also ruled that spoken English was a necessary linguistic require-
ment for a nursing position serving 2,200 Cree who either did not understand French
or refused to speak it. The OLF agreed that providing nursing services through an in-
terpreter was not adequate as a general rule.”
The importance of verbal communication in service delivery was recognized by
the OLF in a case involving a position requiring direct contact with unilingual Anglo-
phones and allophones who did not speak French at an external counselling centre in
legal psychiatry:
Dans un domaine tel que la psychiatrie, il est 6vident que la communication
verbale est d’une tr s grande importance, d’autant que, dans le cas qui nous oc-
cupe, les patients qui se prdsentent ou qui tldphonent au centre sont souvent
psychologiquement perturb6s et que leur premier contact peut 6tre d6terminant.
Cette situation particuli~re suppose donc que la connaissance de langues autres
que le frangais (et en particulier l’anglais) est non seulement un atout mais une
n.cessit6 tant pour le personnel soignant que pour le personnel d’accueil”
Bertrand v. Institut de Bio-endocrinologie (1 August 1980), n0 46-020, [1979-1980] D6ecisions
rendues en vertu de ‘article 46 de la Charte de la languefrangaise 48.
,’0 Emond v. CLSC St-Louis-du-Parc (5 October 1979), no 46-012, [1979-1980] Decisions rendues
en vertu de 1 article 46 de la Charte de la languefrangaise 36.
‘ Syndicat professionnel des infirmi~res et infirmiers de Chicoutimi v. Centre hospitalier de Chi-
bougamau (6 February 1981), no 46-027, [1980-1982] Dcisions rendues en vertu de l’article 46 de la
Charte de la languefrangaise 18. The OLF took note of the declaration of the employer that notes
were drafted in French and that a knowledge of written English was not required. Moreover, it took
into account the intention of the Cree to eventually put an end to this exceptional situation by encour-
aging the implementation and a broadening of the use of French.
’67 Lavoie et le Syndicat des travailleurs unis de Pinel v. Institut Philippe-Pinel de Montrdal (7 July
1982), n46-046, [1980-1982] Decisions rendues en vertu de l’article 46 de la Charte de la langue
franfaise 33.
MCGILL LAW JOURNAL / REVUEDE DROITDE MCGILL
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Similarly, in the delivery of specialized services to children and their families, the
OLF was ready to recognize the interest of the child and accept that the proportion of
English-speaking social service personnel be superior to the proportion of clients. The
OLF was not ready to intervene in the organization of services and rejected arguments
founded on proportions and percentages: “[L’Office] ne pourrait demander A
l’employeur de modifier l’organisation du service qu’au prix d’une ingdrence directe
dans le fonctionnement du C.S.S. dans un domaine ot la comp6tence professionnelle
et les qualit6s humaines doivent passer au premier rang.” ”
The OLF also ruled on one case involving the requirement of a knowledge of
Chinese for the position of receptionist at a CLSC that served a Chinese population
estimated officially as 3.4% of the total population, but thought to be larger because of
recent shifts. The policy of the CLSC was to count on its personnel to respond to the
needs of a variety of ethnic groups in their language. Following the departure of a
Chinese-speaking doctor, the CLSC needed another employee who could communi-
cate in this language and the first position to fall open was that of receptionist. The
person Mfiling this post would thus accomplish the ordinary duties of a receptionist and
ensure a response to the needs of Chinese users. The OLF accepted the CLSC’s policy
and recognized that, given the other factors, the receptionist’s task necessitated a
knowledge of Chinese.”9
b. Decisions Rendered after Bill 142
The OLF has rendered nine decisions involving public health and social service
institutions since the passing of Bill 142 in December 1986. Eight cases entailed the
knowledge of English as a job requirement and one the knowledge of Cantonese.
Seven dealt with positions providing direct services to the public. In six cases, the
OLF held that the employer was justified in requiring the knowledge of a language
other than French.
In two cases where the position involved no direct contact with English-speaking
users, the OLF decided that the linguistic requirement was justified. In Syndicat des
travailleurs et des travailleuses de Maisonneuve-Rosemont v. Hapital Maisonneuve-
Rosemont, the OLF recognized the necessity of requiring the knowledge of English
for a medical secretary who had to type English texts for professors and teaching as-
sistants.7 In the second case, the dispute stemmed from a ministerial decision to
” Goulet v. Centre de services sociaux de l’Outaouais (1 October 1982), no 46-051, [1980-1982]
DMeisions rendues en vertu de l’article 46 de la Charte de la languefrangaise 40 [hereinafter Goulet].
‘” Syndicat des travailleurs du CLSC St-Louis-du-Parc v. CLSC St-Louis-du-Parc (13 July 1979), n0
46-009, [1979-1980] Dcisions rendues en vertu de l’article 46 de la Charte de la languefrangaise 29
[hereinafter CLSC St-Louis-du-Parc].
’70
(August 28, 1987), no 46-115, [1983-1991] Decisions sur la langue du travail 99. While this de-
cision was rendered after the passing of Bill 142, the original complaint was filed in October 1986.
The decision was rendered prior to the adoption of the access programs in 1989, in which the hospital
was named to provide only emergency services in English.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
743
transfer pathology services from the Brome-Missisquoi Hospital to the Centre hospi-
talier de Granby and the subsequent transfer of an English-speaking pathologist into a
French-speaking milieu. The OLF decided that knowledge of English was justified for
the position of a medical secretary specially assigned to the doctor, who drafted her
reports in English as permitted by section 27 of the Charter of the French language.’
The OLF recognized that, in imposing the knowledge of English in one position of
three, linguistic requirements could differ for positions designated by the same job ti-
tle within the same service. Thus an institution could require the knowledge of Eng-
lish for one position while not for another in the same category or class if it could jus-
tify the requirement. A third case dealt with the position of a medical secretary at the
nuclear medecine department of a hospital. In addition to maintaining contacts with
international suppliers and organizations, the person occupying this position had to
welcome patients, 30% of whom were non-Francophone. The OLF again decided that
the employer had successfully justified the requirement for a knowledge of English.'”
The issue of Bill 142 was first raised in OLF decision-making in 1987, but not
discussed since the access programs had not yet been approved.'” In deciding that a
transition centre for adolescents, 30% of whom were Anglophone, could require the
knowledge of English for an educator’s position, the OLF once again recognized the
importance of language in service delivery: “[L]’employeur doit accueillir de mani~re
habituelle un nombre important de jeunes anglophones, qui prdsentent des caract6ris-
tiques psychologiques telles que l’usage de leur langue matemelle rev& une grande
importance.’
‘7
The OLF was also of the opinion that the rights under the Youth Protection Act'”
and the Former Health and Social Services Act should receive the same large and
generous interpretation as other fundamental rights. These do not, however, have
precedence over the fundamental right to work in French, and while the employer can
invoke the obligation to furnish services in another language, this argument, in itself,
will not be sufficient unless it can be shown that the objective cannot be achieved ex-
cept by imposing linguistic requirements for certain positions. The OLF also reviewed
the service plans of the transition centre and concluded that the human resources were
too limited to allow any restructuring according to linguistic skills.
‘7’ Syndicat des employds du Centre hospitalier de Granby v. Centre hospitalier de Granby (No-
vember 13, 1996), no 46-197, [1991-1998] Ddcisions sur la langue du travail 83 [hereinafter Centre
hospitalier de Granby].
,Syndicat des employfs de l’hpital du Sacrd-Ceur de Montrial v. Hpital Sacri-Ceur de Mon-
tr al (24 February 1989), no 46-127, [1983-1991] Decisions sur la langue du travail 122. When the
access program for Montreal was adopted later that year, the hospital was not named to provide nu-
clear medicine in English but only emergency services.
3 Syndicat des employds du Centre de rdadaptation Cartier v. Centre de rdadaptation Cartier (28
August 1987), no 46-092, [1983-1991] Ddcisions sur la langue du travail 73.
’74ba at 79.
,R.S.Q. c. P-34.1.
MCGILL LAW JOURNAL / REVUE DE DROITDE MCGILL
[Vol. 45
The OLF once again emphasized the importance of language in a service setting
in Syndicat canadien de lafonction publique v. Centre d’accueil Miriam. In that case,
it accepted the institution’s requirement for the knowledge of English for the position
of a night-time “pr6pos6 aux b6n6ficiaires/pr6pos6 h la buanderie” in a residential
centre for the intellectually handicapped where nearly all residents were unilingual
Anglophones. The OLF agreed in principle that “la communication est un 616ment
fondamental et indissociable de la qualit6 des soins’ 176
Five years later, the OLF discussed the effect of Bill 142 in depth for the first
time.'” Wishing to ensure that there would be one person with a good knowledge of
English on each team to deal with Anglophone patients, who numbered between 7%
and 10% of the total, a hospital named in the access program of that region sought the
knowledge of English as a requirement for an assistant head nurse position. In exam-
ining the relationship between Bill 142 and section 46, the OLF rejected the notion
that Bill 142 constituted proof of necessity for a bilingual position. For the OLF,
“Particle 46 conserve toute sa port6e face un autre texte l6gislatif qui n’en a pas ex-
clu express6ment l’application”T
The OLF refused to accept blindly that the identification of an institution in an
access program for English services permitted it to organize its services as it wished:
[F]aut-il que 1’Office de la langue frangaise accepte d’embl~e toutes les cons6-
quences (sur 1’exigence de la connaissance d’une autre langue que le frangais)
de tous les programmes d’acc~s adopt6s par les 6tablissements de sant6 et qu’il
refuse d’exercer son jugement, fond6 sur ‘article 46 de la Charte, sous prtexte
qu’il n’a pas h s’immiscer dans l’organisation administrative de ces 6tablisse-
ments? Rdpondre par 1’affirmative t cette question, c’est ouvrir la porte k tous
les abus et permettre A quiconque le voudrait, par I’adoption de mesures admi-
nistratives, de contoumer la loi.7 ‘
In reaffirming its competence to review the organization of services within an in-
stitution, the OLF decided that the employer had not demonstrated that the function in
question could not be exercised without a knowledge of English. The hospital had
tried to demonstrate only that no one else in that department and on that team could
communicate in English with those who were ill. For the OLF, this was not sufficient:
[La preuve d~montre que c’est une circonstance fortuite qui a amen6 1’h6pital
A exiger la connaissance d’une autre langue pour acc&Ier au poste affich6; un
autre employ6 de m~me service aurait-il connu cette autre langue que l’h6pital
n’aurait pas eu les mimes exigences pour le poste d’infirmier(6re)-chef ad-
joint(e). La tfche sp6eifique d’une infirmier(6re)-chef adjoint(e) exige tellement
‘7 (12 February 1988), n0 46-094, [1983-1991] D6ecisions sur la langue du travail 80 at 80 [herein-
after Centre d’accueil Mirian].
‘” Syndicat des infirmires et infirmiers de l’Est du Qu6bec v. HMtel-Dieu de Gaspd (12 February
1993), n0 46-203, [1991-1996] D6ecisions sur la langue du travail 36 [hereinafter HOtel-Dieu de
Gasps].
Mbi. at 41.
‘”Ibi.
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
745
peu de connaissance de l’autre langue que 1’6tablissement n’en tient pas
compte quand il fait appel A des rempla.ants, en cas d’absence du titulaire du
poste.
ISO
Moreover,
la mise en application du programme d’accbs de l’6tablissement entraine pres-
que automatiquement une forme de discrimination. Un candidat, par ailleurs tr s
comp6tent au plan professionnel, pourra se voir refuser un poste si, par hasard,
une autre personne dans le m~me d6partement ne peut s’exprimer en anglais;
mais 1’tablissement poura accorder un autre poste semblable 4 un autre candi-
dat tout aussi competent et tout aussi unilingue, dans une autre circonstance”‘
In short, the OLF found a total lack of correlation between the nature of the tasks
required and the level of responsibility of the staff who had to ensure communication
with the patients. It also took note of a petition signed by eighty employees opposed
to the means that the hospital had taken to provide services in English.
The OLF ruled against the employer for a second time in Syndicat des em-
ployJ(e)s du CSSMM v. Centre jeunesse LavaL’ It held there that the centre was not
justified in requiring the knowledge of English for caseworkers at the Department of
Youth Protection or in CLSC zones where there was little or no demand for English
services. Only thirty-seven (2.5%) cases handled by the centre were in English, al-
though the English-speaking population for the region amounted to almost 15%. The
OLF stated that the centre had to justify language requirements based on existing,
rather than potential, demand for services. It added that the organization of services so
that one person would be able to work in English in each zone was foreign to its no-
tion of necessity. It was not ready to accept the argument of “commodit6 administra-
tive” to justify necessity:
1I faudra accepter que des mesures soient prises pour adapter les horaires de
travail et la r6partition des dossiers en fonction des aptitudes linguistiques de
chacun des membres du personnel, meme au prix d’efforts suppl6mentaires de
planification, si ces mesures sont n6cessaires pour r&uire le nombre des postes
pour lesquels l’exigence du bilinguisme est impose ”
Sixteen months later, the OLF recognized once again the importance of language,
the relative nature of the right to service under health and social services legislation,
and its own role in examining how the employer is organized to respect the right of
employees to work in French:
L’Offlice ne pourrait nier rimportance de la dimension linguistique, en matire
de soins de sant6, sans contredire les principes qu’il a lui-m~me 6tablis dans
plusieurs decisions antrieures … Dans douze cas sur quatorze, en mati6re de
0 Ibid. at 43.
8T/bid at 44.
(13 December 1996), n 46-247-265, [1991-1996] Decisions sur la langue du travail 94 [herein-
3Ibid at 103.
1
1
after Centre jeunesse Laval].
746
MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol. 45
sant6 et de services sociaux, ‘Office a du reste reconnu la n cessit6 d’imposer
la connaissance d’une autre langue comme condition d’accs A un poste. Mais
si les services peuvent dans une certaine mesure 8tre foumis dans la langue des
usagers, il n’en d~coule pas obligatoirement une exigence lingustique du type
de celle que formule r’employeur, au meme degr6 ni pour les memes postes.
L’Office conserve A cet 6gard une certaine marge d’apprciation, et il lui appar-
dent de d6terminer si les exigences imposes entraiment des effets d’exclusion
trop 616v6s h 1’endroit des salarids … l’argumentjuridique sur l’accessibilit6 des
services, bas6 sur la Loi sur les services de santi et les services sociaux, regoit
donc une port6e toute relative.”
The most recent decision of the OLF involved two positions of nursing team
leader at the H6pital chinois de Montr6al, an institution recognized under section 29.1
of the Charter of the French language, since the majority of its users speak a language
other than French.” The OLF drew a distinction between the right of English-
speaking people to receive services in English, as originally enshrined in Bill 142, and
the rights of other linguistic minorities in Quebec, who have no legal right to services
in their own language. While those previously holding the positions at the hospital
had mastered both languages and the union was prepared to accept a certain knowl-
edge of the languages used by the hospital’s patients, the OLF found that the require-
ment to “parler couramment le cantonais ou le tdsonnais” was too high and not justi-
fied. Even if the person occupying this position spent half his or her time with pa-
tients, he or she was generally not alone with them. The OLF refused to determine the
level of linguistic competence necessary for the position. This decision was highly
publicized by those who believed that the OLF was targeting the Chinese community.
In a press release explaining and justifying the decision, the OLF commented on its
role as follows:
Dans le domaine de la sant6 et des services sociaux, on comprend que la qua-
lit des soins soit une prdoccupation constante des administrateurs. Toutefois,
le statut de la langue frangaise est une valeur primordiale au Quebec et l’Office
est charg6, en cas de n6cessit6, de veiller h ce que le droit de travailler en fran-
‘S.C.FP v. CLSC Saint-Michel, (9 April 1998), n 46-227-228-229-242-243-244-250-257-283,
[1991-1998] D~cisions sur la langue du travail 116 at 127-28 [hereinafter CLSC Saint-Michel]. The
OLF accepted the requirement of English but rejected the requirement of knowledge of a third lan-
guage for a telephone operator/receptionist. Of the population of 56,000 on the CLSC territory, 34%
had neither English nor French as mother tongue and 6% were Anglophone. Some 74% of the popu-
lation spoke French at home, 12% English and 6% neither French nor English. The CLSC had been
named in the 1989 access program to provide English reception services. For certain groups whose
mother tongue was not English, this was the language of use when seeking services. Over 32 days,
there were 202 users speaking a language other than French: 89 in English, 68 in Spanish, 44 in Ital-
ian. The CLSC successfully invoked previous decisions of the OLF that went beyond mere percent-
ages, and argued the human dimension of services offered, the importance of the relationship between
the institution and its milieu, its mission as a CLSC and the right of English-speaking people to service.
‘ S.C.RP v. Hdpital chinois de Montrdal (19 June 1998), n 46-290, [1991-1998] Dcisions sur la
langue du travail 134 [hereinafter H6pital chinois]. The hospital challenged the decision of the OLF
before the Superior Court under ss. 33 and 846 of the C.C.P., see infra note 187.
2000] R. SILVER- ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
747
gais soit protdg6 et garanti, y compris pour les salarids ceuvrant dans les 6tablis-
sements du rdseau de la santd. Les exigences linguistiques d’un employeur
peuvent avoir un effet d’exclusion h 1’dgard des saladrs. C’est le rrle de
1’Office de s’assurer que ces effets d’exclusion n’aillent pas au-delM de ce qui
est n .essaire.’
However, the decision of the OLF was overruled by the Superior Court,'” which
held that the hospital had discharged the burden of proof in establishing the need for
the languages in question and that the criterion for judicial review in a quasi-judicial
context such as this was simple error or an incorrect decision. The court also noted
that the OLF had not taken into account the special status of the hospital conferred by
section 29.1 of the Charter of the French language. Also of importance for the future
role of the OLF, the court raised the issue of a reasonable apprehension of partiality in
the OLF’s decision-making process. The court questioned the ambiguous role played
by the OLF’s legal counsel, who not only advised the members rendering a decision,
but also pleaded the case on behalf of the OLF, and the possible conflict of interest of
one of the OLF members, Fernand Daoust, a vice-president of the Fonds de solidaritJ
des travailleurs du Quebec, to which the complainant union was affiliated. The court
concluded that the OLF, its members sitting in this case, and its legal counsel did not
enjoy the objective conditions essential for judicial independence and public confi-
dence in the administration of justice.
3. Effect of the Jurisprudence of the Office de la langue frangaise on
the Ability of Institutions to Provide Services in English
An analysis of the jurisprudence of the OLF relating to the right to work in
French and the right to receive services in English reveals that there is no conflict
between the Charter of the French language and Bill 142. The right to work in
French, as expressed in section 4 of the Charter of the French language, of which
section 46 is a consequence, is not an absolute right, and the OLF will take into ac-
count the particular circumstances of the case when the right is invoked.’ The deci-
sions rendered by the OLF also permit the following conclusions:
1. The O12 has generally ruled in favour of the employer. This indicates that
the employer has usually been successful in establishing the necessity of a linguistic
requirement. The OLF has also shown itself sensitive to the issue of language as a
communication tool in the health and social services sector, particularly in cases of a
vulnerable clientele. However, since each case must be decided on its own merits,
there is no guarantee that this trend will continue.
6 Office de la langue franqaise, Communiqud, “Decision de 1’Office de la langue frangaise concer-
nant des exigences linguistiques 4 l’Hpital chinois de Montrdal” (31 July 1998).
,87 S.C.FR (section locale 2948) v. Hpital chinois de Montrdal, [1999] J.Q. No. 5345 (Sup. CL),
online: QL (QJ), AZOO021001, online: AZIMUlT.
… See J. Dansereau, Office de la langue frangaise, La Charte de la languefrancaise et sa cohirence
avec d’autres textes ldgislatifs (Montreal: 1995) at 7.
MCGLL LAW JOURNAL / REVUE DE DROIT DE MCGILL
[Vol., 4
2. Bill 142 is not a determinative element. As Htel-Dieu de Gaspd makes clear,
an institution will not be able to justify necessity of language requirements on the ba-
sis of the institution’s inclusion in an access program for English services alone. This
is merely one of the elements that the OLF will consider in rendering its decision.
3. That an institution is recognized as “bilingual” under section 29.1 of the
Charter of the French language does not exempt it from having to establish necessity.
As Centre d’accueil Miriam and H6pital chinois indicate, hospitals and other institu-
tions with this special status are required to justify the necessity of a linguistic re-
quirement, despite the fact that the status was originally granted because the majority
of their users speak a language other than French.
4. The OLF has, over the years, increasingly examined the organization of serv-
ices and personnel in an institution when making a decision. In early cases such as
Goulet, the OLF refused to intervene in the internal operation of the centre. Neither
would it intervene in CLSC Saint-Louis-du-Parc when that centre required the knowl-
edge of Chinese for a receptionist’s position in 1979 because it was the first position to
fall vacant after the departure of a Chinese-speaking doctor. In more recent cases, the
OLF has systematically reviewed the organization of services in coming to a decision.
5.
It is difficult to justify the necessity for a linguistic requirement in situations
where there are few English-speaking people and little demand for services. This was
the argument raised by the R6gie r6gionale Mauricie-Bois-Francs in developing a
“policy” to facilitate services in English instead of implementing a full access pro-
gram. The regional board believed that it would not be possible to justify positions re-
quiring a knowledge of English since the demand for services at its institutions was
minimal.
6. The creation of new administrative regions in the reform of 1991 and the on-
going restructuring of services in the network will result in increased difficulties in
justifying the presence of bilingual positions. This is because services are transferred
from institutions with regional mandates to CLSCs with more limited territorial man-
dates. These measures reduce the critical mass of English-speaking people needing
services by splintering groups into new regions and territorial zones. For example, the
creation of the Laval region hived off approximately 45,000 English-speaking people
formerly part of the Montreal region. As a result of the creation of the Centre jeunesse
de Laval, English-speaking young people previously served by English-speaking
workers of Ville-Marie Social Services Centre or Jewish Family Services in Montreal
were obliged to seek services from a Francophone centre. The small demand for
services in English, less than the proportion of the English-speaking population, made
it impossible for the Centre jeunesse de Laval to justify the knowledge of English as a
-requirement for caseworkers at the Youth Protection Department. Similarly, as serv-
ices are increasingly developed in CLSCs or transferred to the CLSC network, it will
be difficult to justify the knowledge of English for positions where the number of
English-speaking people on the territory is small and demand for services limited.
Moreover, as Centre hospitalier de Granby indicates, administrative decisions by
the Ministry on the organization of services, particularly specialized medical services,
can have the effect of creating the need for bilingual positions and thus lend them-
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
749
selves to a possible challenge of the linguistic requirement by employees working in
the system.
7. Positions providing services in English in current access programs are less
likely to be challenged because they are based on bilingual personnel already in place.
However, as Centre jeunesse Laval indicates, new hirings brcught about by retirement
and the restructuring of the network could lend themselves to challenges if institutions
attempt to impose a linguistic requirement.
8. As indicated in H~tel-Dieu de Gaspi, creative attempts by institutions to
provide services to English-speaking users by requiring that one person in a team
have a knowledge of English will fail unless the employer can prove that the knowl-
edge of English is an integral part of the job function. In the eyes of the OLF, this
amounts to discrimination since knowledge of English could be required of an em-
ployee simply because no other member of the team is capable of working in English.
In practice, this will render the designation of bilingual positions exceedingly difficult
unless there is a significant proportion of English-spealing users or demand for serv-
ices in English. It also underlines that it will be easier to justify the knowledge of
English for a single position, such as a receptionist, than for employees who work as
part of a team in delivering direct services.
9.
In two cases involving CLSCs, one prior to the passing of Bill 142 and one
more recently, the OLF accepted the employer’s requirement for a knowledge of
English for positions serving users who expressed themselves in English when this
was not their first language. This leads one to ask if the notion of “English-speaking
person” as expressed in Bill 142 added something new, or whether the user’s language
of choice determined the language of service delivery to some extent even prior to Bill
142. The decision of the OLF in CLSC Saint-Louis-du-Parc in 1979 acknowledges
that the language of choice of users can have an impact on the right of an employer to
require the knowledge of English, a decision reinforced in 1998 in CLSC Saint-
Michel.
10. The decision in Hrpital chinois underscores that the OLF is prepared to rule
not only on the necessity of a language other than French, but also on the level of
knowledge of an employer’s linguistic requirement. In this case, it appeared that the
justifiable knowledge for the positions in question lay somewhere between “a certain
knowledge” of the language of the patients, acceptable to the union by virtue of
agreements previously signed with the hospital, and the ability to speak “couram-
menf’ (fluently), a level judged too high by the OLF If this approach is followed,
there could be future cases of hair-splitting in determining the justifiable level of
knowledge of a language other than French. This situation did not appear to be envis-
aged in the drafting of section 46, which refers to the knowledge of another language
and not the extent of that knowledge.
11. It may be advantageous for the employer to make use of an employee’s
knowledge of English without formally attaching a linguistic requirement to the posi-
tion. This would avoid the possibility of recourse under section 46. However, if the
employee were to leave that position, the employer would then have to decide
whether to attach a linguistic requirement to the post, leaving open the possibility of
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[Vol. 4
challenges, or to hope that the incoming employee would be sufficiently adept in
English to provide services without a formal designation of a position as bilingual.
B. English Signs and Internal Communications in the Health and
Social Services Sector
The last few years have seen several occasions where hospitals serving English-
speaking people have been required to remove signs in English aimed at informing
and orienting these users. In 1996, the CUSE chose to add some signs in English after
the Sherbrooke Hospital, the only designated bilingual hospital in the region, lost its
acute-care mandate, thus obliging English-speaking people to go to a Francophone in-
stitution. Following a complaint to the OLF, the hospital was told to remove the signs.
After publicity and negotiations, the vast majority of the signs were removed.
In September 1997, the OLF ordered La Providence Hospital in Magog to re-
move signs giving directions to the emergency ward in English after another com-
plaint and, in 1988, ordered the Brome-Missisquoi-Perkins Hospital, founded by the
English-speaking community in 1911, to remove its English signs. Each of these hos-
pitals was named in an access program to provide some services in English. These
events raise questions about the nature of the right to English services and the ability
of public institutions to provide them.
While the right to English services is governed by Bill 142, the Charter of the
French language regulates the internal functioning of health and social services insti-
tutions, which form part of the civil administration.’9 Institutions recognized under
section 29.1 of the Charter of the French language may function in both French and
another language. Consequently, while ensuring that all their services are available in
French, they may erect signs and posters in both French and another language, the
French version predominating. They may also give themselves a bilingual name, un-
like other institutions, which must have a unilingual denomination. They can also use
French and another language in their internal communications and in communications
with other recognized institutions.”
All other institutions, even those named in access programs to provide services in
English, must function in French. An exception exists in the case of signs and posters,
where reasons of health or public safety require the use of another language as well.
The government may also determine by regulation the cases, conditions, and circum-
‘9 Supra note 12. See the Schedule of the Charter of the French language. In addition to public in-
stitutions regulated by the Act respecting health services and social services, the civil administration
includes the government and government departments, government agencies, municipalities, urban
communities and school boards.
” Tbiad, ss. 14-29. See also Office de la langue frangaise, Politique administrative de l’Offlce de la
languefranfaise relative au statut d’un organisme en vertu de Particle 29.1 de la Charte de la langue
franfaise (Gouvernement du Qubec) [Ratified 11 February 1994].
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
751
stances in which a health and social services institution may use French and another
language in signs and regulations.19’
It seems worthwhile to compare the provisions in the Charter of the French lan-
guage governing the right of institutions in the health and social services sector to
erect signs and posters in English with the rules surrounding public signs, posters, and
commercial advertising. Section 58 states:
Public signs and posters and commercial advertising must be in French.
They may also be both in French and in another language provided that French
is markedly predominant.
However, the Government may determine, by regulation, the places, cases,
conditions or circumstances where public signs and posters and commercial
advertising must be in French only, where French need not be predominant or
where signs, posters and advertising may be in another language only.’9
The notion of the marked predominance of French, without prohibiting the use of
another language, was introduced by Bill 86 in 1993. This modification stemmed
from decisions rendered by the Supreme Court in 1988 and allowed the government
to avoid recourse to the “notwithstanding” clause relating to freedom of expression.'”
Well aware of the symbolic role that signs play in Quebec and sensitive to the po-
litical ramifications of enforcing the Charter of the French language and the media
coverage which frequently accompanies non-compliance, the OLF has suggested
means other than signs to facilitate access to services for English-speaking users in
health and social services institutions. These include bilingual or multilingual flyers,
preferably in distinct versions, indicating the location of services, a multilingual mi-
cro-computer indicating where services or departments are located, pictograms, a
combination of pictograms and flyers, a handbook of drawings or expressions in dif-
ferent languages to facilitate oral communications with patients, and illustrated panels
such as those in shopping centres where the user chooses the language. These are le-
gal, but possibly more cumbersome, alternatives to the use of English in signs.
While the OLF proposes alternatives to signs as a means to facilitate access for
English-speaking users, this has not always been the case. It has on occasion taken on
a role pertaining to the operation of institutions providing health and social services
that extends beyond its function of examining and ruling on matters related to cases of
non-compliance. In such instances, it has effectively broadened the ambit of the leg-
islation so as to promote French, while at the same time suppressing or relegating the
status of English. For example, the OLF told a CLSC in 1981 that brochures and fly-
ers should be available in English only for those people who specifically requested
them, and that the CLSC should remove the English versions from the reception and
… Supra note 12, s. 22. The power of the government to determine exceptions to the “French only”
rule by regulation was introduced in Bill 86, supra note 64.
‘9 Supra note 12, s. 58.
‘9 Ford and Devine, supra note 42 and accompanying text; Charter, supra note 11, s. 33.
752
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[
[Vol. 45
waiting area. This request was based on internal documents prepared by the OLF to
promote French, but not explicitly envisaged in the Charter of the French language.”
In addition, the OLF recommends that, in the case of bilingual messages, the French
version should be heard first on answering machines even in institutions specially
recognized under section 29.1, even though that status stems directly from the fact
that the majority of users speak a language other than French.”
At the very least, one must question the internal coherence of the Charter of the
French language as it pertains to the language of signs. It seems ironic that a super-
market or department store has the right to post signs in English for the benefit of its
English-speaking clients, as long as French is predominant, while a hospital or CLSC
is prohibited from doing so unless the majority of people to whom it provides services
are English-speaking or it can successfully invoke reasons of health or public safety.
As a result, the vast majority of institutions providing services in English are not per-
mitted to post signs in English. The argument that a hospital, CLSC, or long-term care
centre is part of the civil administration, while a commercial enterprise is not, seems
illogical.
If the prohibition of a language other than French on commercial signs infringes
freedom of expression in the Charter and the Quebec Charter, it is conceivable that a
health and social services institution could also invoke the same argument. In practice,
unlike some businesses, which have chosen to challenge these provisions or ignore
orders from the OLF to comply, hospitals have acquisesced to demands that signs in
English be removed. Health or social services institutions have yet to invoke health or
public safety as a justification for the use of a language other than French.”6
‘ Letter from L Gilbert, Service de la promotion du frangais dans l’Administration, to J.-M. Le-
Brasseur, Executive Director, CLSC Chaleurs (13 July 1981). Mine Gilbert added:
J’ai d’ailleurs l’impression que s’il y en a autant, c’est justement qu’il n’y a pas
suffisamment de clientale anglaise pour justifier cette prdsentation contraire au 1’ prin-
cipe de la fiche hors-s6rie A qui veut d6samorcer le bilinguisme institutionnel au Qu6-
bec. Vous voudrez bien corriger ce point en remplagant lesdits documents et brochures
par les textes en fiangais dont on semble faire si vive consommation que souvent il ne
reste que le texte anglais.
95 Supra note 162.
96 As for the exception for reasons of health or public safety included in s. 22 of the Charter of the
French language, the OLF contends that
chaque ministare ou organisme a compltence pour apprcier les cas oti la sant6 ou la
s6curit6 publique exigent aussi l’utilisation d’une autre langue que le frangais, tout en
pouvant b6n~ficier de 1’aide et des conseils de I’Office. Toutefois, selon les rigles ha-
bituelles d’interprdtation, une exception At un principe g6n6ral 6none6 par la loi doit re-
cevoir une interpretation restrictive. Les mots “sant” et “sWcurit6 publique” doivent
donc 6tre pris dam le sens plus restreint, et 1’exception ne doitjouer que dam les cas oi4
il y a un danger r6el pour la sant6 ou la s~curit6 publiques : par exemple, les consignes
d’6vacuation en cas d’incendie (Quebec, Office de la langue frangaise, “version annot6e
de la Charte de la languefranfaise”, September 1997, online: Office de la langue fran-
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
753
Conclusion
The right of English-speaking people to receive health and social services in Eng-
lish constitutes an exception to general Quebec government policy to make French the
common language of all Quebecers. This legal recognition acknowledges that the
needs of the vulnerable and sick should come before the promotion of the ideology of
language. As such, this constitutes a partial breach of the territorial model adopted by
Quebec to promote the use of French. At the same time, the passing and implementa-
tion of Bill 142 is not necessarily incompatible with the Preamble of the Charter of
the French language. This states that the objective of making French the language of
government and the law, as well as the normal and everyday language of work, in-
struction, communication, commerce, and business, must be applied in a spirit of fair-
ness and open-mindedness, respectful of the institutions of the English-speaking
community of Quebec and of ethnic minorities.
Nonetheless, language remains a volatile issue in Quebec, and the right to health
and social services in English has on several occasions come under attack. While the
Parti Qu6b6cois opposed Bill 142 at the time of its passing in 1986, its party program
now commits a Parti Que’b6cois government to provide health and social services to
the “anglophone” community in its language and to maintain, to this effect, the cur-
rent provisions of health and social services legislation. However, in 1996 and 1997,
party members successfully proposed resolutions, couched in terms of the need to
protect the right to work in French and to counter “institutional bilingualism”, whose
underlying objectives constituted an attack on the right to services in English. While
the government is not bound to implement its party program, the latter nonetheless
has some importance. It is likely that the Parti Qu6b6cois leadership had to make
some compromises to maintain party unity. Thus, at its Conseil national in April
1996, the party leadership agreed to take a number of measures to combat “institu-
tional bilingualism”, including a review of the health and social services legislation. It
did so rather than agree to abolish Bill 86, which, while part of the party program,
would entail recourse to the “notwithstanding” clause of the Charter. Similarly, the
adoption of the resolution at the Conseil national in November 1997 calling for a pro-
hibition on requiring a language other than French in the hiring, promotion, or trans-
fer of all workers, except those in institutions recognized as bilingual, can be per-
ceived as a way of appeasing those party members for whom the use of English in the
health and social services sector remained a crucial target. The decision by the Min-
ister of Health and Social Services to refer the access programs to the OLF, as de-
manded at the Conseil national of January 1997, can also be seen in this light.
It is also necessary to ask why the Parti Quebdcois government did not approve
the revised access programs for English services in the course of its first mandate
gaise
1998)).
This seems particularly restrictive. It could be argued that signs in hospitals designating the emer-
gency department or other services could also meet the definition.
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[Vol. 45
from September 1994 to November 1998, and why it began to approve the programs
only after the filing of legal proceedings against it by Alliance Quebec. The failure for
so long to approve the new programs indicates a reluctance to observe the letter and
the spirit of the law, which calls for a revision of the programs at least every three
years. While the reorganization of the health and social services system can be used to
explain this delay to some extent, the regional boards submitted the original versions
of their revised access programs no later than December 1996. Only lack of political
will can explain why the government did not adopt the programs in the following two
years. Regardless of government explanations, the constant delays have undermined
the goals of the legislation and the rights of English-speaking people. It is hardly reas-
suring to hear a minister state that institutions continue to provide services in English,
that he has received few complaints, and that transitory measures remain in force to
correct non-compliance with the law. Reports of Ministry personnel attempting to
convince regional boards to remove services in access programs inspire little confi-
dence. These events served only to contribute to a climate of increased mistrust be-
tween the Parti Qu6b6cois government and Quebec’s English-speaking population.
In spite of all this, the legal guarantees incorporated in Bill 142 and affirmed in
subsequent health and social services legislation have been at least partially success-
ful. Institutions and regional boards, largely run by French-speakers, have shown
themselves sensitive to the needs of English-speaking people needing services. Eng-
lish services have continued to be available despite the government’s reluctance to ap-
prove the new programs. However, the ongoing restructuring of the health and social
services system is a dynamic process that necessitates constant re-evaluation. The tra-
ditional model whereby English-speaking Quebecers, particularly those in the Mont-
real region, obtained all services from a network of “English” institutions no longer
exists. Front-line services are now predominantly delivered on a territorial model
through the CLSC network, and specialized services are now organized on a regional
or sub-regional basis. The “English” institutions are fully integrated into this model.
Institutions outside Montreal have also been susceptible to these changes and services
are now frequently organized by municipal regional counties. Services in English are
increasingly provided by public institutions that operate mainly in French. These
changes may incite institutions to designate new bilingual positions, which could lead
to further challenges before the OLF
Moreover, the administrative structures that support the right to services in Eng-
lish appear fragile. The decision of the Quebec government not to renew the Canada-
Quebec Agreement to facilitate access to English services could jeopardize the posi-
tions of the coordinators responsible for English services within the regional boards.
This agreement, which has in part financed the implementation of Bill 142, expired in
1999. Unless special provision is made, the boards may not be able to fund these po-
sitions. In addition, the provincial committee charged with advising the government
on English services could eventually see its role diminished as a consequence of the
Facal report on government agencies. Moreover, the Ministry of Health and Social
Services has dismantled the administrative unit responsible for English services and
has consolidated it with the coordination of services to cultural communities as part of
its own downsizing. In consequence, the institutions providing services directly to the
2000] R. SILVER – ENGLISH HEALTH AND SOCIAL SERVICES IN QUEBEC
755
public will assume a more important role than ever in ensuring the availability and ac-
cessibility of services.
The events of the past few years reveal that the right to health and social services
in English in Quebec remains for some a political issue inextricably linked to the
question of language. Moreover, these events demonstrate that a right to access, even
one enshrined in legislation, relies on the administrative apparatus of the State for its
value in daily life. A statutory right is worth little if administrative interference and
delays prevent its effective exercise. However, an analysis indicates that the institu-
tions and regional boards delivering and planning services respectively are primarily
concerned with the provision of adequate services to people in need and less with the
political or ideological issues that would restrict accessibility to services. Now that the
government has, for the second time, approved access programs to English services in
conformity with health and social services legislation, it is to be hoped that emphasis
will now be placed on ensuring service delivery, rather than political rhetoric.
