Schools, signs, and separation: Quebec anglophones, Canadian Constitutional politics, and international language rights.

• Author: Green, William

1. INTRODUCTION

   Contemporary Canadian politics has been defined by Quebec's vision of the province as a linguistically distinct society and by its 1980 and 1995 sovereignty referendums.(1) Quebec's rejection of Canada as a bilingual nation, embodied in the 1982 Charter of Rights and Freedoms,(2) and Canada's obsession with keeping Quebec in Canada have, however, left unexamined the impact of the province's language policies on its anglophone minority. In Quebec, the enactment of the Charter of the French Language(3) and the government's promotion of a French culture have intruded upon the Canadian Charter freedom of its anglophones to conduct their business in English and their Canadian Charter right to have their children educated in English.(4) In response, the Quebec anglophones have litigated business and education language issues in provincial, national, and international courts and made the suppression of their language a significant part of the debate over Canadian national unity and Quebec sovereignty.

   Canadian constitutional lawyers and political scientists suggest that three dimensions have structured the politics of minority language rights. One defines the nature of domestic constitutional politics and distinguishes between micro- and macro-level constitutional disputes, i.e. between litigation over the meaning of legislative and constitutional provisions and disputes about the nature of the state. The second focuses on the participants in these constitutional conflicts, provincial governments and their official language minorities, and examines the interrelationship of the micro and macro-constitutional actions they take to advance their linguistic objectives.(5) The third considers the influence of the international legal environment on the participants in domestic constitutional politics who rely upon international law and legal institutions with their commitment to human rights and charters and their sensitivity to the interests of ethnic, linguistic, and cultural minorities.(6)

   This study of Canadian minority language rights weaves together these three dimensions. Part I identifies three language law regimes that structure the micro-constitutional litigation over minority language politics. Parts II through V use this framework to explore the domestic and international litigation over Quebec anglophone rights -- the Supreme Court of Canada's decisions in the Quebec Protestant School Boards Case (1984)(7) and the Ford Public Signs Case (1988),(8) and the UN Human Rights Committee decision in Ballantyne v. Canada (1993)(9)--and its impact on the current domestic and international legal initiatives by anglophones to establish the right of Quebec children to be taught and businesses to advertise in English. Part VI briefly explores the interplay between this micro-level litigation by Quebec anglophones and the macro-level efforts of their provincial government to either redesign the Canadian Constitution to further the linguistic and cultural objectives of its distinct society or to separate from Canada. Then Part VI brings the article to a close by asking: what might be the status of anglophone minority language rights if Quebec chooses to sever its federal ties and become a sovereign state?

2. THE POLITICAL AND LEGAL SETTING OF MINORITY LANGUAGE RIGHTS IN CANADA

   In Canada, the dispute over English and French has been defined primarily by domestic politics and has been entangled in the macro-constitutional question of whether Quebec, as a uniquely French culture, shares enough in common with the Rest of Canada "to go on sharing a common constitution."(10) Canada has addressed this question in its debate over the Meech Lake Accord, the Charlottetown Accord, and since the razor-thin 1995 Quebec referendum rejecting separation, Quebec separation and partition. This question, along with the micro-constitutional litigation over minority language rights, has also been shaped by the international arena.(11) The growth of nationalism and ethnicity, the support for constitutionally-entrenched bills of rights, and the emergence of an international body of human rights law have influenced the definition of three language regimes --the Quebec priority regime, the Canadian bilingual regime, and the UN non-discriminatory regime--which have provided the structure for the language rights litigation involving Quebec anglophones and their provincial government.

   The Quebec language regime is based on the Charter of the French Language (Bill 101) which declares French to be the official language of the provincial legislature, courts, government agencies, and public schools.(12) French is also the official language of provincial commerce, business and labor relations.(13) Tempered by amendments and court decisions, Bill 101's unilingual character now gives priority to French while not prohibiting the use of other languages.(14) Its business provisions which regulate the use of French and other languages in the names, signs and advertising of private firms have generated substantial anglophone opposition.(15) So have its education provisions which require that instruction in provincial "elementary and secondary schools shall be in French,"(16) even though they permit limited access to English language education.(17) In sum, Bill 101 defines Quebec's current language policy and, along with Party Quebecois policy statements,(18) it provides the framework for Quebec's language policy as a sovereign state.

   The Canadian bilingual language regime has its origins in the British North America Act.(19) Now called the Constitution Act, 1867, it contains in Section 133 a bilingual language requirement for provincial legislatures and courts.(20) The Canadian Charter of Rights and Freedoms of 1982 (Canadian Charter) substantially extends this bilingual regime. Section 2(b)'s guarantee of freedom of expression includes linguistic expression.(21) Section 16 establishes English and French as Canada's official languages.(22) Sections 17 to 20 guarantee bilingual rights in federal parliamentary and judicial proceedings and records and in public communications with the federal government.(23) Section 23 grants the right to publicly funded minority language education to the children of three categories of English-speaking parents in Quebec and French-speaking parents in the other provinces as long as the "the number of children ... is sufficient to warrant the expenditure of public funds."(24) In sum, these Charter provisions and Section 133, define Canada's bilingual language policy.

   The United Nations nondiscriminatory language regime is based on the UN Charter. As a UN member, Canada's legal commitment flows from the International Bill of Rights: the Universal Declaration of Human Rights(25) and UN treaties such as the International Covenant on Civil and Political Rights (1976),(26) the International Covenant on Economic, Social, and Cultural Rights (1976),(27) and the UN Convention on the Rights of the Child (1989).(28) As a signatory to these treaties, Canada has committed itself to the general principle of linguistic nondiscrimination. Canada did not sign the UNESCO Convention Against Discrimination in Education (1960),(29) because education is subject to provincial jurisdiction, but as a UNESCO member, it has accepted the Recommendation Against Discrimination in Education.(30) In sum, these international human rights documents define the UN language regime.

   Together these language regimes give expression to major features of the international community: the pervasiveness of ethnic nationalism, the commitment to charters of individual rights entrenched in domestic constitutions, and the growth of a cosmopolitan body of human rights law.(31) These language regimes also provide the framework for the micro-constitutional litigation of Canadian minority language rights by domestic and offshore courts. The Canadian Charter confers upon the Supreme Court of Canada the final domestic authority to decide whether Quebec's language statutes governing private business and public education violate the constitutional language rights of the province's anglophones.(32) However, Canada's UN membership and commitment to international human rights treaties grant international tribunals the authority to determine whether Quebec language laws and the Canadian Supreme Court's Charter decisions violate the linguistic human rights of Quebec anglophones.(33)

3. THE CANADIAN AND QUEBEC LANGUAGE REGIMES PRIOR TO 1982

   The Canadian constitutional odyssey began with Quebec's Quiet Revolution of the 1960's which led to the creation of the province's priority language regime based on Bill 101.(34) Before then provincial laws were silent on the language of education. In 1969, Quebec's Union Nationale government passed an Act to Promote the French Language in Quebec (Bill 63) which took the first tentative steps towards making French the priority language in the province, but explicitly recognized the freedom of linguistic choice in education.(35) The Liberal government repealed Bill 63 in 1974 and ended linguistic equality by replacing it with the Official Language Act (Bill 22) which declared that "French is the official language of Quebec."(36) Bill 22 did not create a French unilingual language regime, but gave official priority to French in government, business, and education. English schooling was still guaranteed, but French was encouraged by the requirement that access to English schools was only available to Francophones and immigrants who passed an English proficiency test. Otherwise, they were required to attend French language schools.(37) Quebec's commitment to qualified bilingualism ended with election of a Parti Quebecois government in 1976 and its enactment of the Charter of the French Language (Bill 101) the following year.(38)

   Quebec anglophones had only limited Canadian constitutional means to challenge its provincial government's...