Document Information

Date: 1980-10-07
By: Unknown
Citation: Briefing Note – Minority Language Educational Rights (7 October 1980)
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October 7, 1980

BRIEFING NOTE – MINORITY LANGUAGE EDUCATIONAL RIGHTS

Canada Clause

This was an arrangement offered by Quebec to all provinces which would guarantee on a reciprocal basis minority language education at the primary and secondary school level to children of the French or English-speaking minority, where numbers warrant.

Therefore, if a province agreed to provide instruction in French to francophones living in the province, Quebec would provide instruction in English to children whose parents moved to Quebec from this province, where numbers warrant.

There are two major differences between the Canada Clause and Section 23 of the Charter:

1) The Canada Clause does not suggest that the minority language educational rights be limited to citizens. Section 23 extends the entitlement of choice only to Canadian citizens. This has been the position of the Federal Government since the introduction of Bill C-60 in 1978 and this position was endorsed by the Pepin-Robarts Report. The position is based on the concern for the situation in Quebec where immigrants have traditionally tended to assimilate predominantly in the anglophone community.

In addition, Section 23 limits the right to those whose “mother tongue” is French or English. This limitation would prevent as immigrant who does not speak either official language on arrival in Canada, from assimilating in the minority language group on arrival in a province and claiming this minority language as his mother tongue, at a later date once he had become a citizen.

2) The Canada Clause would permit a province to act at its complete discretion and, where it chose not to act in good faith, the rights specified protection of the rights would be only as effective as the province made them. Entrenchment, as provided by the Charter, would make the provision of these rights reviewable by the courts. While the legislatures could stipulate the standards for determining the language identification of persons and the number of students in any area that was sufficient to warrant the provision of minority language education facilities, the reasonableness of these standards would be open to ultimate determination of the courts. Entrenchment is not possible without this judicial review.