Document Information

Date: 1980-08-13
By: Deputy Minister of Justice, Canada
Citation: [Draft] Memo from Deputy Minister of Justice to Prime Minister, Charter of Rights – Language of Education (13 August 1980).
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Note: This document is discussed in an article that has been recently submitted to a peer-review journal.

Security Classification

CONFIDENTIAL

Date

August 13, 1980.

MEMORANDUM / NOTE DE SERVICE

TO/A:                          THE PRIME MINISTER

FROM/DE:                 DEPUTY MINISTER OF JUSTICE

SUBJECT/OBJET:     CHARTER OF RIGHTS – LANGUAGE OF EDUCATION

Comments/Remarques

In my memorandum of August 5 on the Charter of Rights, I indicated that one of the most difficult issues to resolve is that of a satisfactory Charter provision dealing with educational instruction in English or French.

In dealing with this matter there are a number of related questions that require consideration:

(1) Choice of language of instruction: Should this choice pertain to persons of both the majority and minority languages or only those of the minority in a province ?

(2) Identification with language: Should the criterion for identification of persons with one or other language be m other tongue, language primarily spoken, association with a linguistic group or a more clearly defined but possibly more limited test such as the language (English or French) in which a parent of a child has been educated?

(3) Extent of entitlement: Should the entitlement to choose the language of education be confined to Canadian citizens or extended to immigrants and others resident in Canada as well?

(4) Determination of qualifications: Should the determination of such matters as the identification of a per son with one language or the other and the sufficiency of numbers of students to warrant the provision of educational facilities be left exclusively to provincial legislatures or should these be subject to review by the courts?

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(5) Special provision for Quebec: Assuming the Charter contains a provision on choice and/or identification of language broader than the provisions of Quebec’s Bill 101, would it be feasible to include a specified delay period during which that province could continue to apply Bill 101?

On the question of the choice of language of instruction, most proposals that have been advanced on constitutional reform in recent years seem to take the approach of confining the choice to those of the minority language in the province. This is the position in the premiers’ “Montreal Agreement” of 1978, the Pepin-Robarts Report of 1979, the Quebec Liberal Party Proposals of 1980 and has been the position consistently taken by the federal government since the tabling of Bill C-60 in 1978. It is, of course, the existing principle under Quebec law except that those of the minority language are expressly defined as children of a parent who received elementary education in English in Quebec. On the other hand, the Canadian Bar Study of 1978 endorsed the free choice approach for any parent, and a similar approach was advanced by the federal government in its White Paper, “A National Understanding” published in 1977. There it was recognized that the free choice may have to be subject to deferment of its application in certain circumstances, particularly with respect to immigrants moving to Quebec. (In the attached Appendix “A” is a summary of pertinent laws, proposed Charter provisions and reports dealing with language of education rights.)

It is arguable that there should be a free choice for both minority and majority language groups if we are to ensure recognition of the principle of equality among individuals and to have a bilingual federal public service that is open to candidates from all parts of the country. A free choice option might be viewed as more viable if the right were limited to children of a Canadian citizen who had received his or her elementary school instruction in either English or French in Canada. However this approach, as noted later on, is one not without its own difficult problems.

On the other hand, an unrestricted free choice option would undoubtedly be strongly resisted by the present Quebec government (although not necessarily by the francophone public) and likely by the governments of the other provinces who would be concerned about the

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practical and financial implications of such a proposal. Certainly the provincial “Montreal Agreement” of 1978 contemplated a right of choice only for the minority language population, and this has been the basis of all federal government proposals tabled since C-60 including the discussions which Mr. Chretien had with provincial Ministers during his cross-country trip last June. Nevertheless, the free choice option is one you may wish to consider once again before a final position is taken, although our present feeling is that such an option would not be politically acceptable to the provinces, and the federal government would be reversing its position on a fundamental issue.

Whatever approach is taken on the foregoing question of choice, there remains the problem of determining the criterion to be specified for identifying persons with one or other of the languages, in order that the right of choice may be exercised. Varinus criteria exist such as mother tongue, primarily spoken language, English or French speaking , association with one or other linguistic group, etc. none of which lends itself to a commonly accepted definition and each of which requires determination by means of some test. In addition, by some of these criteria a person could fall equally into both language groups.

Other more specific criteria could be considered as, for example, the language (English or French) in which a parent received his or her elementary education within or outside of Canada. While this approach offers a more objective means to identify persons for purposes of educational language rights, its relative inflexibility may post several problems and yield undesirable results. For one thing, it does not encompass all persons in Canada, excluding as it does those who have had no elementary education or who have received such education in a language other than English or French. Further, if this criterion were restricted to those parents who had received their education in Canada and the freedom of choice is restricted to minority language populations, then its application in many provinces other than Quebec would probably mean that considerable numbers of francophones in these provinces would not have a right for their children to be educated in French since many parents will have normally received their education in English. This could be the case in many provinces other than Ontario and New Brunswick

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where, until recently, there were few facilities for providing educational instruction in French. Again, if this criterion is cast more broadly, so as to            include education received outside Canada, this would cause problems within Quebec without alleviating the difficulty for many francophones in the other provinces.

After some lengthy discussions on the advantages and disadvantages of the various approaches to this issue, we have concluded that the better means to deal with identification of language from a practical point of view is to employ the criterion of “mother tongue” of the parents, with mother tongue being defined as the first language learned and still understood by the person. Obviously, even t h is criterion poses problems as to its application in particular cases — how does one prove that French or English was the first language learned? — but we feel that provincial laws could create a number of reasonable presumptions for establishing the identification which would overcome most difficulties. – For example, there could be a presumption based on the language of education of the parents, and another based on the pl ace from which the parents come.

The principal advantage s to the “mother tongue” criterion as we see it are that it avoids the limitations mentioned above which arise out of a criterion based on language of prior education and, at the same time, is somewhat more specific than “primarily spoken language” or association with a linguistic group. With respect to “primarily spoken language” (which was the test employed in C-60 and subsequent federal drafts) we have now concluded that it would be particularly difficult to apply outside Quebec, where a francophone may well have French as his mother tongue and be identified in many other aspects with the francophone culture, but nevertheless no longer in fact have French, but rather English, as his primarily spoken language. Consequently, the “mother tongue” test is probably the one most reflective of that which we are seeking to achieve, namely to enable those who are most closely attached to the English or French cultures to have their children educated in their maternal language.

Turning to the third quest ion of the extent of entitlement, namely whether the right to choose the language of instruction should be confined to Canadian citizens or extended to include immigrants and others resident in Canada as well, the position of the federal government since the introduction of C-60 in 1978 has been to limit the right to citizens. This position, endorsed in the Pepin-Robarts report, was based on the concern for the situation in Quebec where immigrants have traditionally tended to assimilate predominantly in the anglophone community.

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However, on further reflection we wonder if such a restriction is either justified or necessary. First with the current immigration policies and patterns the vast majority of immigrants coming to Quebec are either French speaking or have a mother tongue which is neither English or French. Consequently they would, under our proposal, be directed to the French language schools. Second, because the waiting period to become a Canadian citizen is only three years, those immigrants coming to a province other than Quebec could after this very short period move to Quebec and take advantage of their Charter rights. Third, the “Montreal Agreement” did not suggest that the language education rights be limited to citizens and, so far as we are aware, provinces other than Quebec are not concerned about allowing non- citizens to enrol in their minority language schools.

For all these reasons, we are now inclined to suggest that consideration be given to dropping the citizenship qualification, allowing any parent in Canada the same rights. One could consider limiting the right to citizens and permanent residents of Canada, but we wonder if excluding others such as residents from another country who are in Canada temporarily is really necessary as a practical matter. To the extent that broadening the right may cause serious problems for Quebec, perhaps the better approach would be to consider a delay period for that province in implementing fully the minority language education rights.   This is discussed more fully below.

Turning to the question of determining (or interpreting) the qualifications to be spelled out in the Charter for entitlement to choose the language of educational instruction, there are two criteria that will have to be met in order to secure the entitlement in a given case. One, the identification with the language, has already been mentioned above. The second relates to determining where the number of students of the particular language identification in a given area is sufficient to warrant the provision of educational facilities.

In both instances there are two routes which may be followed in providing who will ultimately determine the application of these criteria (ie, decide when they have been met) . First, one could leave both of these criteria to be defined and applied conclusively

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by the legislatures of the provinces.   This is obviously the posit ion being insisted on by most provinces and is consistent with their stated caveat in the “Montreal Agreement”: “It is understood, due to exclusive jurisdiction of provincial governments in the field of education, and due also to wide cultural and demographic differences, that the implementation of [the minority language education] principle would be as defined by each province.” The provinces feel strongly that determination of these matters involve financial and , social implications that can only be properly prescribed and implemented according to provincial laws. Taking this approach would , of course, permit a province to act in its complete discretion and, where it chose not to act in good faith, the rights specified could be effectively nullified. At best, protection of the rights would be only as effective as a province made them.

If these rights are to be more than a hortatory expression of “best efforts”, then it seems evident that one must consider the other avenue of ·making these questions that would ultimately be reviewable by the courts. In other words, 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. It is recognized that this is a very broad power to give to the courts, and consequently the wording of the provision should be drawn as clearly as possible. However, to eliminate judicial review entirely would be effectively to unentrench the very right being enshrined in the Charter. (It would effectively put it in the same category as other language rights for those provinces other than Quebec, Ontario, New Brunswick and Manitoba and the languages of services to the public in all provinces.) We would thus recommend that while the provinces be empowered to enact laws for application of these criteria, there be an ultimate judicial review power to determine whether the laws proper y give effect to the Charter right.

On the final question, that of a possible delay clause for Quebec, this is premised on t e fact, as stated by Mr. Claude Morin at the opening of this round of constitutional negotiations, that that province would never accept language of education provisions that would effectively undo Bill 101. Assuming a Charter

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Provision that gives a right to the language minority defined by “mother tongue” and extends the right to anyone resident in the province, consideration might by given to allowing Quebec to continue for a specified period (say five or ten years) to apply its present test to define those who qualify for English language instruction in that province. This would provide that province with time to ensure that French is firmly entrenched as the language of its society, and there should then be less concern about permit ting a greater freedom of choice. In this regard, it is perhaps important to note that for the first time in recent years there is relative peace in Quebec respecting the language of education. Consequently we should seek an approach to a new constitutional provision that is least likely to be disruptive of this harmony. It may also be noted that such a delay period would be similar to those suggested for Ontario, and perhaps Manitoba, with respect to languages of statutes and courts.

Summary

In light of the foregoing discussion of the several issues we would recommend for your consideration a language of education provision along the following lines:

“24. (1) Parents (resident in a province) whose mother tongue is that of the English or French linguistic minority population of that ^[a?] province ^{[in which they have reside]} have a right to have their children receive their primary and secondary school instruction in that minority language whenever the number of such children resident in an area of the province is sufficient to warrant the provision out of public funds of minority language education facilities in that area.

(2) In each province the legislature may enact laws to implement the right provided in subsection (1).

(3) For the purposes of this section “mother tongue” means the first language learned and still understood.”

This would replace the provision in the July 41 1980 draft that was tabled during the July constitutional meetings and which read as follows:

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“16.     (1) Citizens of Canada in a province who are members of an English-speaking or French -speaking minority population of that province have a right to have their children receive their education in their minority _ language at the primary and secondary school level wherever the number of children of such citizens resident in an area of the province is sufficient to warrant the provision out of public funds of minority language education facilities in that area.

(2) In each province, the legislature may, consistent with the right provided in subsection (1), enact provisions for deter­ mining whether the number of children of citizens of Canada who are members of an English-speaking or French-speaking minority population in an area of the province is sufficient to warrant the provision out of public funds of minority language education facilities in that area.”

With respect to a possible delay clause for Quebec, one along the following lines might be considered:

“X.      Notwithstanding section 24, the laws of the province of Quebec respecting the language of educational instruction shall continue to have full force and effect for a period not exceeding (five or ten years) from the date on which this Charter comes into force.”

Roger Tassé

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