The case-law of the supreme court of Canada on minority linguistic rights: an attempt to disseminate charter patriotism, and its inconveniences

CatturaRICCARDO DE CARIA – CDCT Working Paper 5-2012/ELC4

Abstract: Principally in response to the public debt crisis, the process of European political integration appears about to make further advances. This, in turn, brings a need to reflect on the emergence of a new legal culture shared by many legal systems that are gradually moving closer to each other in many ways. The language issue is an important aspect of this: the greater the sovereignty transferred by the Member States to the Brussels institutions, the more essential it becomes that these institutions speak the languages that Europeans know best, generally their national language. This poses a considerable challenge to the EU, where language diversity is now recognised under Article 22 of the Charter of Fundamental Rights of the European Union, and, after the Lisbon Treaty, under Article 3 (3) of the TEU. If the EU truly intends to guarantee that language diversity is respected, it must allow every EU citizen to speak any of the 23 official languages and, at the same time, issue its rules in every citizen’s own language. A useful key to understanding the EU situation is provided by Canada, which, with its two official languages, French and English, has long faced a similar challenge. It has been possible to protect the identities of both the English-speaking and the Frenchspeaking communities by recognising that both communities are entitled to have all written documents drafted in their own language. However, this federal-level decision has led to a model of regulation that is marked by strong separatism in the Province of Quebec, where the French-speaking population constitutes a significant majority. The co-existence of the two communities raises several issues for legal scholars. This paper looks primarily at the classic constitutional problem of the rights that the linguistic minority are entitled to, and a review is provided of the main rulings issued by the Supreme Court of Canada. After the introduction (§ 1), and a short survey of relevant constitutional provisions (§ 2), an account is provided of the debate over the Provinces’ powers when constitutional amendments impinge on their sphere of activity (§ 3), and the key regulations relating to the day-to-day administration of Canadian bilingualism are described (§ 4). The article then examines cases and key issues arising from them, in chronological order (§ 5). The last chapter provides a critical evaluation of the way in which language rights have been shaped in Canadian constitutional jurisprudence (§ 6).

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