Comparatively speaking: language rights in the United States and Canada.

• Author: Crowe, Samuel W.

"Language is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it." (1) When a language disappears, the culture it encompasses follows suit. In both the United States and Canada, language rights for those nations' largest linguistic minorities take on the character of the people that they represent. For Latin-Americans, the ability to speak Spanish is paramount to the preservation of their culture, just as the ability to speak French remains essential to Quebecois culture in Canada. The same applies to Native Peoples and their respective tribes in both countries. There is a divide, however, between these neighboring nations in terms of linguistic protections and preservations, as well as with the methods employed by the respective governments to reach those ends. This paper will examine not only the differentiating approaches to language protections between the United States and Canada, but also the diverging rationales utilized by these nations in justifying the existence and furtherance of those rights.

1. INSTITUTIONS OF CANADIAN LANGUAGE LAW

   1. Constitutionally-Protected Language Rights under Canada's Charter of Rights and Freedoms.

      Under the Charter of Rights and Freedoms (hereafter referred to as the "Charter"), English and French are the official languages of Canada, enjoying equal status and privileges within the Parliament and government of Canada. (2) Additionally, the Charter affords both languages those same protections in the province of New Brunswick, (3) Canada's only "truly bilingual" province in both constitutional and practical terms. (4) More specifically, Section 16 of the Charter provides New Brunswick Anglophones and Francophones with English and French rights to "distinct educational institutions" as well as "distinct cultural institutions" deemed necessary for the preservation and promotion of those linguistic communities. (5) The use of either language in Parliamentary proceedings is protected, as is the bilingual publication of Canadian statutes, records, and journals of Parliament, giving both English and French legislation equal authoritative weight. (6) Furthermore, the use of either language in Canada's federal courts and in New Brunswick's provincial courts is protected under Section 19 of the Charter. (7)

      The Charter also imposes a duty on the Canadian government to provide bilingual services for its citizens who communicate with any central office of the Parliament or in the government of Canada. (8) That same right extends to other offices and institutions in particular circumstances "where there is a significant demand for communications ... and services from that office in such language[,]" or where it is reasonable, due to the nature of the office, that communications with and services from that office be available in both languages. (9) In terms of other languages spoken in the country, the Charter also protects other regional, non-official languages from abrogation by Sections 16 through 20 of the acquired or enjoyed rights and privileges of such languages. (10)

      Section 23 of the Charter defines Minority Language Educational Rights. Citizens whose first language is part of the English or French linguistic minority within their resident province have the right to have their children instructed in that language within that province at the primary and secondary school levels. (11) The provision also extends to those citizens who received their primary school instruction in English or French in Canada, and reside in a province where that language of instruction is part of the English or French linguistic minority within that province. (12) Another element of Minority Language Educational Rights under Section 23 includes "continuity of language instruction," giving Canadians who have had a child receive instruction in either English or French in Canada the right to have all of their children receive primary and secondary school instruction in the same language. (13) Lastly, under Section 23(3), the aforementioned educational rights apply:

      [W]herever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority instruction; and includes where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds. (14) There are caveats to the Charter's linguistic rights, however. Each right is subject to the "limitations clause" of Section 1, which allows the Federal government to justify certain infringements of those rights. (15) Section 59 of the Constitution Act, 1982 places restrictions on the application of Charter Section 23 rights to Quebec, rendering the applicability of Section 23 asymmetrical to Quebec in comparison to the rest of Canada. Additionally, Section 27 of the Charter provides for the "preservation and enhancement of the multicultural heritage" of Canadians. (16) As Canadian jurisprudence and legislation will reflect, multiculturalism and linguistic rights go hand in hand.

   2. Linguistic Legislation--From Past to Present

      In addition to the Charter, Canadians enjoy the benefit of other linguistic protections at the federal and provincial levels of government. Prior to the Charter's enactment in 1982, however, little existed in terms of entrenched language rights. In fact, it was not until confederation in 1867 that English and French enjoyed official equal status in the country.

      Beginning with the Quebec Act, 1774, (17) the British Parliament attempted to resolve Anglo-Franco tensions after the Seven Years War by reestablishing French private law and guaranteeing freedom to practice the Catholic religion in Quebec. None of the provisions dealt specifically with language, but language and religion were closely related during that period. (18) In 1792, upon the creation of the provinces of Upper (Ontario) and Lower (Quebec) Canada, French was abolished in the former. (19) After rebellions in both Upper and Lower Canada against British colonial governance in 1837-1838, Lord Durham conducted an inquiry into the causes of the insurrection. (20) He recommended that both provinces unite to ensure that the Francophone population became a minority, thereby hastening its assimilation into English Canada. (21) Based on Durham's recommendations, Britain adopted the Act of Union in 1840, with Section 41 of the Act abolishing French as a language of legislation. (22) The British Parliament would repeal Section 41 in 1848, adopting an act designed to establish a process of translation and publication of laws in both English and French. (23)

      With Canada's 1867 Confederation came the first entrenchment of language rights in the Constitution Act, 1867. While the Act contained only one provision granting language rights, Section 133, it would prove momentous as the foundation of Canada's bilingual institutions. Section 133 specified the right to use either English or French in the Parliament of Canada and in the Quebec legislature, as well as in the courts of both Canada and Quebec. (24) After the Charter, Canada's Official Languages Act of 1988 expanded on the linguistic rights provided under Charter Sections 16 through 23 by providing "facilities for the simultaneous interpretation of the debates and other proceedings of Parliament from one official language into the other." (25) The Act also provided Canadians with the right to receive services from Crown Corporations in addition to federal departments in both official languages. (26) The legislation committed the Government of Canada to enhancing the vitality of the English and French Canadian linguistic minority communities, supporting and assisting their development, and fostering the full recognition and use of both English and French in Canadian society. (27) The Act further stipulated that federal institutions had the duty to ensure that positive measures were taken for the implementation of those commitments. (28) Part VI of the Act mandated that Anglophone and Francophone Canadians not be discriminated against based on ethnic origin or first language learned when it comes to employment opportunities and advancement in federal institutions. (29)

      In terms of the provinces, Quebec implemented its Charter of the French Language (Bill 101) in 1977, making French its official language for legislation, administration of justice, and public administration. (30) Recently, the Quebec National Assembly amended the legislation to limit access to English language schooling by no longer recognizing one year of private English language schooling in Quebec as fulfilling the eligibility criteria to attend a publicly funded English school in Quebec. (31) Prior to the Charter's conception and entrenchment of bilingualism in New Brunswick, the province instituted bilingual official language legislation in 1969. The legislation was the first of its kind in Canada, making New Brunswick Canada's only officially bilingual province. The New Brunswick Act's protections are echoed by Sections 16 through 20 of the Charter.

      In an effort to protect its Francophone population, the province of Ontario enacted the French Language Services Act in 1986. (32) The Act designates districts and municipalities with significant numbers of Francophone residents for the provision of provincial government services in French. The districts include Algoma, Cochrane, Nipissing, Sudbury, and Timiskaming, along with the united counties of Prescott and Russell. (33) The municipalities include the notable cities of Brampton, Hamilton, Kingston, London, Mississauga, Ottawa, Sudbury, Toronto, and Windsor. (34) The territory of Nunavut also employs an official language act, adding Inuit to English and French as its official languages. (35) The Northwest Territories also implemented official language legislation in...