The Nature of Canadian Bilingualism: Individual Rights and Collective Rights

Why Intervene in Matters of Language?

When nations intervene in the area of language, it's usually to resolve or prevent conflicts between linguistic groups, and most often between a majority and one or more minorities. How to deal with minorities is indeed a thorny issue for almost every government, Canada's included. In a perfect world for nations or countries, minorities would avoid distancing themselves from the majority on the basis of language and culture. But that's not always possible, so governments try to keep cultural differentiations and oppositions under wraps by implementing policies that reduce dissident feelings and, even better, prevent them altogether. This is exactly what Canada has strived for.

The range of approaches for instilling linguistic peace remains extensive. In modern times, of course, some measures are considered unacceptable (repression, assimilation and, still seen today, genocide). That said, most modern states have introduced policies that better respect the rights of citizens. For example, some grant schooling rights to minorities; others give linguistic communities equal rights under the law, which can evolve into institutionalized bilingualism or prompt the territorial separation of languages; still others give regional autonomy to one or several minority groups (but this requires stable political structures).

In reality, however, political intervention in the area of language rarely stems from purely linguistic motives; instead, it derives from social-development projects bred for largely cultural, political and economic objectives. Not surprisingly, then, linguistic engineering becomes a "problem" because it relies on a sometimes complex and cumbersome legal patchwork (constitution, laws, regulations, directives, controls) to achieve its aims, and this process tends to spark conflict.

Generally speaking, linguistic engineering involves the language of the majority or a language that carries international prestige; still, the engineering can also revolve around one or more minority languages. Some times, states decide to apply the engineering to both the majority language and the main minority language. Depending on the country, these are usually called "the languages of the founding peoples," "the languages of the national minorities," "the languages of the nationalities," etc., and countries tend to protect them more than they do the language of their immigrant populations.

The comments of Justice Brian Dickson of the Supreme Court of Canada (1990) on the Mahé case are worth recalling in this context:

My reference to cultures is significant: it is based on the fact that any broad guarantee of language rights, especially in the context of education, cannot be separated from a concern for the culture associated with the language. Language is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it. It is the means by which individuals understand themselves and the world around them.

Placing language interests under state protection appears to be a way for society to express its commitment toward cultural integrity and personal dignity.

Should the Language Itself or Its Status be Engineered?

Linguistic engineering can revolve either around one of the two following elements or around both: the code (that is, the language itself) or the status (that is, its social role). Specifically, engineering the code means intervening on such fronts as alphabets (imposing cyrillic in Russia, the Latin alphabet in Turkey, and devanagari in India), spelling (modernizing spelling in Spain and Norway), pronunciation and grammar (in Norway, Indonesia and Greece), or vocabulary (almost all countries) through the creation of terminology commissions.

When states set their sights on adjusting language status, they focus on the role these languages play in society, or on how different languages exert power, pressure and attraction on each other. This makes it possible a) to give a certain status to a language that would not have one otherwise, b) to withdraw a language's status, c) to heighten or lessen a language's status, or d) to give two or three languages equal status under the law or even to invert the status of two languages.

In many countries, linguistic engineering revolves both around status and code. That's because experience has shown that languages are far more than simple communication tools and, as a result, that it's unrealistic for states to concentrate solely on language code and to discount the social and ideological pressures related to language. Yet, it's equally unrealistic to focus only on language status if the language in question does not have the required tools or stature. For instance, languages that have never held any real value in their respective societies usually don't have the lexicographic wealth (big enough vocabulary) to express new concepts and ideas. As a result, in any effort to engineer languages, states must find the right balance between code-related and status-related intervention.

Type of Status

Language status can be defined over a broad scale. Usually, the term makes one think right away of "official status" or "official character," because these expressions confer an ideal, an aura of privilege-however symbolic in some cases.

Canada's Policy on Linguistic Equality

Under Article 16 of the Charter of Rights and Freedoms (1982), French and English are Canada's two official languages (federally); as such, they have equal rights, status and privileges. From this declaration stems Canada's entire policy on equal language rights. Specifically, the policy is founded on the principle of individual rights, the right to language being strictly personal, much like the right to vote. Equality of languages is thus based on the equality of individuals before the law. No matter where they live on Canadian soil, English-speaking and French-speaking Canadians have the same rights, in principle, in matters federal. The country's Francophone citizens, in the province of Quebec or elsewhere, exercise their rights exactly as the country's Anglophone majority. Still, this legal equality applies only at the federal-government level and not necessarily in provincial jurisdictions-indeed, only the province of New Brunswick has a similar official-bilingualism policy.

The federal vision of language rights is founded on a symmetrical approach to official languages, that is, one in which Anglophones and Francophones stand as equals. This view sets apart, on one hand, French-speaking Canadians, who live mostly in Quebec but also have a presence in the rest of Canada, and, on the other, English-speaking Canadians, who live mostly across the rest of the country, but are also present in Quebec. The result is a duality in which Canada has two " majorities " that each harbour minorities requiring some sort of protection. Applying this principle means protecting mostly the Francophone minorities in English-speaking provinces, as well as Quebec's English-speaking minority. What's more, the majority in each province is free to use its powers to protect its own rights.

Of course, this policy produces a few off-kilter effects; still, its advantages appear to outweigh its inconveniences. The biggest plus is the ability to provide standardized minimum protection to official-language minorities in each province. This makes it difficult for a province to hold firm on non-intervention or on forced assimilation, and the Constitution also stands as a barrier against that route. The down side is that there is no actual Canadian minority, only provincial linguistic minorities (according to the Supreme Court of Canada) over which the federal government has no jurisdiction other than through the Canadian constitution. In other words, Francophone minorities can end up with more protection from the government that's most removed from its citizens (the federal government) than from their own province. Indeed, as things filter down to the provincial or municipal level, protective measures can weaken. In Ontario, for instance, the province does more to protect its Francophone minority than do many cities. Because of Canada's federative agreement, the central government cannot meddle in provincial affairs, even linguistic ones. That means some minorities can get better protection in certain provinces-welcome to the world provincial autonomy!

Another pitfall exists, though it has less to do with language rights than with pure politics: Because jurisdictions are shared, federal and provincial language policies can prove at once disparate and inconsistent. Each province is free to apply its own language policies, except under the constitutional provisions set out in article 23 of the Charter of Rights and Freedoms. Collective rights in the area of schooling, granted under the Canadian constitution, are the nation's only harmonized rights. The many failed constitutional talks, the seemingly endless number of legal challenges against Canada's language laws (Quebec, Alberta, Saskatchewan, etc.) and the "judiciarization" of language rights underscore how hard it is for Canadians to strike a balance between unity and diversity across such a vast nation. Still, Canada has managed to bring about enviable linguistic peace, one that largely eludes some other countries.

Individual Rights, Collective Rights and Territorial Rights

In matters of language, rights are normally individual or collective, but they can also be territorial or mixed. Personal or individual rights are, of course, granted to persons, regardless of one's place of residence in the country. So, these rights follow individuals wherever they move inside the country. In principle, individual rights are counter to collective and territorial rights, but not necessarily so in practice. The federation known as Canada has, much as have many other countries, opted for the personal-rights model or framework.

The concept of collective rights varies from one state or territory to another. Still, collective rights apply to individuals in their status as members of a group; what's more, collective rights can apply either across the entire territory or state or only in some parts or regions. In Canada, collective rights per se are still few and far between. In fact, collective language rights apply nation-wide in only one area: schooling (under article 23 of the Charter of Rights and Freedoms). The Canadian constitution sets out the legal foundation for the collective rights of both Francophone minorities (in all provinces except Quebec) and Anglophone minorities (Quebec). Other rights have also been officially recognized in New Brunswick for its large Anglophone and Francophone communities. In Quebec, the Charte de la langue française grants collective rights to the province's Francophones under the principle of " fundamental language rights. " In Ontario, the provincial court of appeal, in its ruling of December 7, 2001 regarding the Montfort hospital, recognized that Francophones had " community rights " (that is, collective rights) and that authorities had to consider the special needs of the Franco-Ontarian minority.

Before the law, Native peoples have the same rights as other Canadians, but because of their native status, they can claim special rights (non-language). This raises a relatively complex issue: Native peoples have a distinct status under the constitution, outside the realm of language. Generally speaking, collective rights exist only where the law formally recognizes them, but once they are recognized, they strengthen individual rights by shifting them to a more effective level of application. Yet, to truly go from theory to reality, collective rights must also be granted to institutions (governments, language bodies, etc.) who have some sort of authority over the individuals united under them. From that point on, as members of a community, individuals can claim their rights, resort to the courts, and demand protection from public authorities.

The concept of territorial rights comes into play when linguistic borders serve to protect language rights. What's more, these borders can be either closed or open. Thus, "closed" borders do not allow other groups to cross with their language rights intact (as in Switzerland); on the other hand, "open" borders allow the majority group to carry its language into the minority's territory (as the Spaniards do in Catalonia). In Canada, only Quebec comes close to this model, as it tries to protect the French language while granting schooling rights to Anglo-Canadians who settle there. Traditionally, Canada has shunned policies based on territorial borders, though it did try at some point to promote the concept of "bilingual districts." In this context, language rights can be considered as mixed when policy-makers try to apply them not only in a specific territory, but also on an individual scale (this is what Finland does).

To have rights of any sort applied in reality, nations have to enshrine them in legal documents that make them official. Rights can be constitutionalized (that is, written into a country's fundamental law-or constitution), exactly as Canada itself and the province of New Brunswick have done. Indeed, the constitutionalization of rights carries a more solemn and more lasting aura than do a country's laws-provided, of course, that the country's constitution is immune to repeated implosions (certainly the case in Canada). Generally, countries are happy to laden their constitutions with generalities and to insert the finer details on protection into specific laws. On this front, not only has Canada's federal government enacted legislation, but so have the provinces of Quebec, Ontario, New Brunswick, Nova Scotia and Prince Edward Island. Governments can also give themselves ample leeway by describing the proper application of a law in a regulation, a decree or an administrative directive. In addition, countries can decide to exclude broad principles from all documents other than the constitution and to delegate the choice of any language-protection measures to the Administration. Still, current trends favour legislation as opposed to non-intervention.

Political Autonomy and Language Policy

Language engineering can some times prompt structural changes and give rise to constitutional rules that re-cast a nation's political organization. In some instances, the scope and specificity of constitutional provisions transform the constitution itself into the language-engineering tool. For example, in embracing linguistic pluralism, India adopted a complex federal system, while Belgium implemented a formula for regional and community autonomy that few countries have yet to emulate.

Language protection affects political structures, for instance, when nations give language groups numerical equality in their parliament or in the government's make-up; or when nations adopt the dual-majority principle that prevents majorities from ruling on certain issues unilaterally and instead requires that such decisions be made only with majority consent among the minority group; or when nations create federated states-politically autonomous regions-sovereign or not.

Nations made up of federated states or of states with extensive political autonomy have to establish two or more parliaments, executive branches, public services, etc. Again, putting the concept of linguistic equality into actual practice can transform a nation's political organization. Canada did not have to redesign its own political structures, but because of its confederation of "provinces," Quebec, though a national minority, gained political autonomy as a provincial majority. As of 2005, alongside Quebec, provincial or territorial linguistic autonomy and its privileges also applied to New Brunswick and Nunavut.

Examples of such large-scale success do not dominate the landscape; still, Finland (Åland province), Denmark (Greenland and Faroe Islands), Belgium (community governments and regional governments), Switzerland (cantonal sovereignty), Spain (autonomous communities), the states of India, and Canada-Quebec certainly stand as the most oft-cited examples worldwide.