Chapter 06, Official Languages

In this chapter, two rather different topics are covered in the area of official languages. The first two sections examine the patterns of second language learning and teaching that are being established in Canadian schools, primarily the teaching of French to anglophones. The remaining sections deal with the constitutional provisions for official languages in general use and in education, which have their main effect on first language speakers of minority languages.

Religion and language have been intertwined in Canadian history even though there is no logical relationship between them. Sissons, an early student of both language and religion in Canadian education, observed in 1920 that “Language and religion are not fundamentally interdependent. A sentimental connection there is without doubt between them. The language learned at a mother's knee is the most natural language for religious worship. It is natural for the church to wish to be close to the home and the school.” (7). Combining Sissons' sentimental connection with the empirical fact that throughout Canadian history most francophones have been Roman Catholics and most anglophones Protestants gives us the relationship that characterizes the development of schools in Canada. Especially in Manitoba, Ontario, and Quebec many separate school issues have had linguistic overtones.

In recent times, language has tended to displace religion as an issue in Canadian education. The education clauses in the Constitution Act, 1867 deal with religious denomination, whereas those in the Constitution Act, 1982 deal with language. The predominance of language as a current issue may reflect demographic, cultural, and social changes. Many observers believe that organized religion has lost power in the last several decades, while during these same decades language has become a powerful and divisive issue in Canadian society.

Second Language Learning

Second language learning has emerged as a potent issue in anglophone Canada in response to threats to Canadian unity posed by the nation's linguistic diversity. Second language instruction is certainly not new, although the concern that second language teaching produce useful learning has intensified in Canada in recent years. Most families are successful in imparting to their children a very sophisticated receptive and expressive oral knowledge of their first language but only rarely of a second language. Nevertheless, the home has historically been the place where many fluently bilingual Canadians learned both languages. Louis St. Laurent, a former prime minister of Canada, reported that as a young child he assumed there was one language for fathers and one for mothers. But large numbers of Canadians who did not choose their parents as carefully as Louis St. Laurent are expecting similar results from schools.

Schools are having difficulty delivering the same results that bilingual homes have delivered. In the traditional second language class, instruction was delivered in English, the students responded in English, and frequently neither the students nor the teachers reached operational fluency in the second language. Weir, in his 1934 study of Canadian schools, recognized the value of using the language being taught as the language of instruction (114).

Furthermore in teaching the French language “as a subject” it is sound psychological procedure to adopt the so-called direct or oral method according to which French, as the “language of instruction,” should be used.

Weir's advice was ignored for many years but is now widely adhered to. Unfortunately this has not been enough to ensure fluency in a second language, and many Canadian school systems now offer programs of French immersion in which French is the language of instruction for all or a large part of the curriculum. The rationale is simple: to increase the amount of time spent exposed to the target language without sacrificing the other subjects of the curriculum. French immersion is discussed in more detail in the next section.

There has been considerable debate as to the appropriateness of offering primary education to children in a second language. Dutcher's 1982 review of the relevant literature from around the world shows that the answer to this question depends upon the child's background and the relationship between the languages. Second language immersion programs undertaken before the child has achieved basic literacy appear most successful if: the child has attained the sophisticated oral fluency in the first language necessary to proceed to literacy, the child has the cultural means to do so in the first language, and the child is expected to do so by parents and significant others. Conditions for this are likely to be satisfied if the child's parents have freely placed the child in such a program and if the child's first language is spoken by a local majority or is culturally dominant or very powerful. Applying Dutcher's findings to Canada, we can conclude that French immersion is not for everybody, but that such programs are culturally justifiable and of potential benefit to many children. Conclusions regarding English immersion for francophones do not come as easily. The dominant position of English in North America suggests that English immersion in Canada may be unnecessary or inappropriate, but the available research does not permit any firm judgment.

Serious concerns have been voiced about the ability of anglophone French immersion students, especially those who begin immersion at an early age, to function in English. In some second language programs this has led to the complete loss of the first language, but for Canadian anglophones in French immersion the problem appears to be insignificant or even non-existent. English in the home and the predominance of English in the mass media and publishing in North America assist French immersion students to achieve a command of written and spoken English that is comparable to those students being instructed in English. English may be a difficult language to learn, but it is also a difficult language not to learn.

Second Language Instruction

This section looks at patterns of instruction of French as a second language to Canadian anglophones. Several characteristics of the instruction are relevant. Is French the subject being taught or is it being used to teach other subjects? At what stages in the child's school career is French taught or used, and for what proportion of the instructional day does this occur? Several common patterns have emerged.

A distinction must be made between “core French” and “immersion French”. Core French refers to the teaching of French as a subject and usually involves from 20 to 45 minutes of instruction per day. If this is expanded to include the teaching of one or sometimes two subjects in French, the program is termed “extended core”. In immersion French programs, all or most of the program is taught in French. The distinction between extended core and immersion is sometimes made when half the student's time is spent in each language, but this pattern is often called “partial immersion”.

A second variable, one that is especially important in immersion, is the point at which the child begins to receive instruction in French. In early immersion programs French instruction begins when the child starts school in junior or senior kindergarten or grade one. Typically, all instruction will be in French for at least three years, at which point some English may be introduced. Middle immersion refers to programs that begin in grade four, and late immersion to programs that begin in grade seven. These three programs are found in practice. There are clearly other possibilities, but school systems must necessarily limit the number of programs available in their schools. Class size, school size, system size, and population density appear to be the limiting factors. From a curricular point of view, locating printed materials in French that are age and interest appropriate but at a very elementary reading level can be a challenge in middle and late immersion programs.

Constitutional Language Rights

Constitutional language rights appear in the Constitution Act, 1867, Manitoba Act, 1870, and the Constitution Act, 1982. The first two of these impose a weak form of bilingualism on Canada, Quebec, and Manitoba. The latter imposes a much stronger form of bilingualism on Canada and New Brunswick. These are discussed below by province, although the federal provisions are included where applicable.

Canada and Quebec

The only language provision appearing in the Constitution Act, 1867 imposes a weak form of bilingualism on Canada and Quebec.

133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

The upper house of the legislature of Quebec, the Legislative Council, was abolished in 1968, and the remaining house is now called the National Assembly.

In 1977 the National Assembly passed the Charter of the French Language which made French the sole official language of Quebec and attempted to amend parts of section 133 by making French the language of the legislature and courts of Quebec. The Supreme Court of Canada passed judgment on the constitutionality of this in two cases decided and reported together in 1980, “Attorney-General of Quebec v. Blaikie et al.” and “Attorney-General of Quebec v. Laurier et al.”. A further decision under the same names was reported in 1981. Together they considerably clarified the meaning of section 133.

In the first Blaikie case, the court determined that all statutes and regulations of the Quebec legislature had to be enacted and published in both languages. An unofficial or later English version was not sufficient. All courts in Quebec, both federal and provincial, were to be bilingual as required in section 133. To avoid the potential chaos resulting from the invalidity of the many statutes passed in only one language, the National Assembly convened on the evening the decision was released and passed all French-only statutes again in both languages during one all-night sitting.

The second Blaikie case was a rehearing requested by Quebec to determine where the requirements for bilingualism end. In a detailed decision, the court stopped short of requiring bilingualism at the local level. School boards and municipalities existed long before 1867, and if the Fathers of Confederation had wanted them to be subject to section 133 they would have said so explicitly.

Subsequent related cases from Quebec have followed the Blaikie decisions. In the 1986 case of “Attorney-General of Quebec v. Collier et al.”, the Quebec Court of Appeal held that sessional papers of the National Assembly that give details of legislation must be published in both languages. In another 1986 case (“Waskaganish Band v. Blackned”), an Indian band council regulation coming under the Cree-Naskapi (of Quebec) Act and passed only in English was held to be valid. Band councils, like municipal councils and school boards, are not subject to section 133.

Manitoba

In 1870 the population of Manitoba was about evenly divided between anglophones and francophones, and the Manitoba Act, 1870, a statute of the Parliament of Canada, contained a clause similar to section 133 above which reflected this fact.

23. Either the English or the French language may be used by any person in the debates of the Houses of the Legislature, and both these languages shall be used in the respective records and journals of those Houses; and either of those languages may be used by any person, or in any pleading or process, in or issuing from any Court of Canada established under the British North America Act, 1867, or in or from all or any of the Courts of the Province. The Acts of the Legislature shall be printed and published in both those languages.

During the 20 years following this act, the population became predominantly anglophone, and in 1890, by means of the Official Language Act, the Manitoba legislature repealed essentially all of section 23. The courts and legislature became unilingually English, and the requirement for publishing records, journals, and acts in French was eliminated. Several early court decisions found this unconstitutional, but these remained unreported until recently and had no impact. A series of cases in the late 1970s and early 1980s chipped away at the Official Language Act, but not until the government of Canada referred the question to the Supreme Court of Canada was the issue finally settled. Holding the Official Language Act to be invalid would have led to legal chaos in Manitoba since nearly all its legislation passed since 1890 would also have been invalid, having been passed in English only. Unlike Quebec, Manitoba had not taken the precaution of preparing unofficial translations.

The Supreme Court issued its decision in 1985 (“Reference re Language Rights under the Manitoba Act, 1870”). The Official Language Act was declared to be beyond the powers of the Manitoba legislature and therefore invalid, but all subsequent legislation and regulations passed in English only were declared temporarily valid to prevent a legal vacuum. The 1985 decision required that all subsequent legislation be enacted and published in both languages but left the period of temporary validity subject to a later decision following submissions from Manitoba and Canada. In a brief 1986 decision under the same name, the court established timelines for the government of Manitoba to complete the required translations. The latest of the deadlines had expired by 1991.

Canada and New Brunswick

Early constitutional language-rights provisions affected only the governments of Canada, Quebec, and Manitoba. But in the Constitution Act, 1982 much stronger provisions were introduced that apply primarily to the governments of Canada and New Brunswick. These are contained in sections 16 to 22 of the “Canadian Charter of Rights and Freedoms”, and are entitled “Official Languages of Canada”. Sections 16(1) and 20 quoted below give an idea of their force.

16.(1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.
· · ·
20.(1) Any member of the public in Canada has the right to communicate with, and to receive available services from, any head or central office of an institution of the Parliament or government of Canada in English or French, and has the same right with respect to any other office of any such institution where
(a) there is a significant demand for communications with and services from that office in such language; or
(b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.
(2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legislature or government of New Brunswick in English or French.

These sections generally make the same requirements for New Brunswick as for Canada. Section 16 makes both languages official languages of Canada (subsection 1) and New Brunswick (subsection 2) and dictates general equality between them. Sections 17 and 18 require that the institutions of the governments of Canada and New Brunswick, including legislative bodies and courts, function in both official languages. Section 20 guarantees the availability of federal government services in either language where there is a significant demand and New Brunswick government services throughout the province regardless of demand.

In 1993 a new section (16.1) was added as a consequence of the favourable vote in New Brunswick on the Charlottetown accord. It guarantees the two linguistic communities in New Brunswick distinct educational and cultural institutions. This amendment is significant in that it establishes a separate but equal status for linguistic groups in contrast to most non-discrimination statutes which favour integration as a means of obtaining equality.

All Provinces

Several provisions in the “Official Languages of Canada” guarantee rights that are generally applicable.

16.(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.
· · ·
21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada.
22. Nothing in sections 16 to 20 abrogates or derogates from any legal or customary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.

Section 16(3), a sort of affirmative action provision, allows any government to pass legislation favouring a language disadvantaged in some way. Section 21 prevents the Charter language provisions from weakening earlier constitutional language rights and mainly affects Quebec and Manitoba. Section 22 attempts to provide some protection for unofficial languages—those other than English and French.

Minority Language Educational Rights

Language educational rights are found in the Constitution Act, 1982 in section 23 of the “Canadian Charter of Rights and Freedoms”, entitled “Minority Language Educational Rights”, and in section 59, which is outside the Charter. Section 23 consists of three grammatically independent subsections, the first two of which provide the basic rights and the third of which both extends and places limits on these rights. Section 59 exempts Quebec from the application of part of the first subsection of section 23. In contrast to other rights clauses, section 23 applies only to Canadian citizens.

These rights are characterized by specificity and uniqueness. They are worded in much narrower terms than fundamental freedoms and equality rights, and they have no equivalents in the constitutions of other countries. These rights aim at ensuring that Canadian citizens who have children will be able to pass their official language background to their children by means of appropriate schooling. Perhaps because of their specificity, the courts have interpreted them to be strongly remedial. They are making a difference to children in Canadian schools.

Intergenerational Rights

The first subsection of section 23 provides a true minority right to two defined classes of persons.

23.(1) Citizens of Canada

(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or

(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,

have the right to have their children receive primary and secondary school instruction in that language in that province.

Paragraph (a) sets out a mother tongue criterion for parents of children. If their mother tongue is French and they reside in any province other than Quebec, their children are entitled to receive primary and secondary school instruction in French. The term “primary” as used in section 23 is certainly intended to include both lower and upper elementary, so that all instruction up to, but not including, the post-secondary level is covered by the right. It is the English or French language minority in the province as a whole rather than in any part of the province that determines minority status. Local minorities forming part of a provincial majority are not protected.

Because of section 59 quoted below, 23(1)(a) does not apply to Quebec and therefore does not apply to English as a language first learned and still understood since English is the minority language only in Quebec.

59.(1) Paragraph 23.(1)(a) shall come into force in respect of Quebec on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

(2) A proclamation under subsection (1) shall be issued only where authorized by the legislative assembly or government of Quebec.

(3) This section may be repealed on the day paragraph 23.(1)(a) comes into force in respect of Quebec and this Act amended and renumbered, consequentially upon the repeal of this section, by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

Section 59 requires the authorization of the government of Quebec before 23(1)(a) can apply to Quebec, and at the time of writing this authorization had not been obtained. If 23(1)(a) is made applicable to Quebec after its authorization, revocation of the authorization would not have the effect of ending the application of the paragraph to Quebec. Section 59 contains provisions for its own repeal in the event that 23(1)(a) comes into effect with respect to Quebec.

Paragraph (b) of section 23(1) describes a second criterion that parents may meet which guarantees that their children can receive elementary and secondary education in the minority language of the province in which they reside. Parents who have received their primary, that is, elementary, education anywhere in Canada in the minority language of the province of their current residence have that right. Secondary education is part of the guarantee but not part of the criterion.

These first language education rights have important implications for instruction and for teachers. It is generally accepted that if one parent meets either criterion from subsection 1 of section 23 then the right exists for all children of that parent. Thus a child could be entitled to instruction in both official languages, although not in the same province. Also, the fact that the test is imposed on the parent rather than the child has troubled many school systems because the right to an education in a certain language bears no necessary relationship to any ability to understand or use that language. A child with at least one francophone parent in a home where English is the language of everyday use has a constitutional right to attend a French language school. This child has no obligation to attend such a school, but failure to exercise the right does not extinguish it. At any point in the child's school career, the child can demand to be served by a school offering instruction in French as a first language. Instruction in a French immersion class, although it would be pedagogically the most suitable for such a child, appears not to meet the requirements of section 23. French language school boards are being faced with the difficult task of accepting children at various points in their school careers who have an insufficient knowledge of the French language to understand the instruction or integrate adequately with their peers. They, of course, revert to English, and their bilingual peers frequently do the same, threatening to convert the school environment into an English one. The problem can be acute in areas where French is a small minority.

Continuity Rights

Section 23(2) provides a right that may or may not depend on minority status, since the word minority is not mentioned explicitly.

(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.

There are two aspects to this very important right. The first is continuity of the language of instruction for the individual child. For a typical Canadian child it means an entitlement to continue receiving schooling anywhere in Canada in the language that the child first encountered in school in Canada. The child cannot be forced to change languages partway through his or her school career. The second aspect is the linguistic unity of the family. Once any child in a family has received instruction in English or French, all children of the family are entitled to instruction in that language. The drafting of this section was undoubtedly influenced by the infamous English tests imposed for several years in the mid-1970s by the Quebec government on children entering school for the first time. The tests were aimed mainly at allophones, those whose mother tongue was neither English nor French, and were designed to compel children without a good knowledge of English to receive their instruction in French. As a consequence, some allophone children whose older siblings were receiving instruction in English by choice were forced into French schools, thus splitting the family linguistically. No other provision in Quebec's Official Language Act of 1974 was more bitterly resented than this. It probably contributed to the downfall of the Liberal government in 1976 and the subsequent repeal of the act by the Parti Québécois government. Under section 23(2), a child could possess the right to education in either English or French if that child or any siblings among them had received or were receiving instruction in both languages.

Limitations

Subsection 3 of section 23 limits the rights found in subsections (1) and (2) but introduces a requirement for public funding and for minority language educational facilities.

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province

(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and

(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

In order for these rights to apply, there must be a sufficient number of children claiming them. When they do apply, the rights include the public finance of the education and, where numbers warrant, minority language facilities provided at public expense.

Interpretation

Applications to the courts for the enforcement of language educational rights came quickly in a series of important cases. These had the effect of striking down part of the Quebec Charter of the French Language, sometimes called Bill 101, and of clarifying the meaning of section 23 of the “Canadian Charter of Rights and Freedoms”. Three decisions of the Supreme Court of Canada—from Quebec, Alberta, and Manitoba—along with other cases from British Columbia and Ontario have considerably clarified the scope and application of this section.

Shortly after the Constitution Act, 1982 became law, questions arose concerning the protection of the right to receive instruction in a minority second language, something the drafters of section 23 probably never considered. Does a parent with one child in a French immersion program have the right to have all subsequent children placed in such a program by virtue of section 23(2)? Must immersion programs, once started, be continued?

The application of section 23 to second language programs was rejected by the Supreme Court of British Columbia in the case of “Whittington et al. v. Board of School Trustees of School District No. 63 (Saanich)”. A group of parents challenged a decision by the Saanich School District to change the entry level for its French immersion program from kindergarten to grade one. The main argument advanced was a subsection (2) right to have the younger siblings of children who began French immersion in kindergarten also begin the program at the kindergarten level. The case was dismissed on the grounds that section 23 was never intended to apply to French immersion, a second language program aimed at the linguistic majority of the province. Section 23 has, as its sole purpose, the protection of first language rights.

We can also conclude that French immersion programs probably do not satisfy educational language rights. French immersion programs lack the required level of minority control and do not constitute a genuinely minority language and cultural environment for children. Nevertheless, immersion programs may be an option for persons who would have section 23 rights except for failing the section 23(3)(a) sufficient number criterion.

In the 1984 case of the “Attorney-General of Quebec v. Quebec Association of Protestant School Boards”, a provision in the Charter of the French Language which, except for transition provisions, limited instruction in English in Quebec to children whose parents had received their elementary education in English in Quebec was struck down by virtue of section 23(1)(b). The Charter of the French Language, which came into effect in 1977, replaced the Official Language Act of 1974 and its language tests with this simple intergenerational requirement. The new requirement was easier to administer than tests, but it violated the 23(1)(b) guarantee of education in English in Quebec for the child of any Canadian citizen educated in English in Canada.

The Supreme Court of Canada ruled that limiting the criterion to elementary education in English in Quebec was not a reasonable limit that could be demonstrably justified in a free and democratic society. On the contrary, the drafters of the Constitution Act, 1982 were aware of Bill 101 and its restrictive requirement and intended section 23 to remedy this perceived defect. The court reached this conclusion because 23(1)(b) so specifically and precisely contradicts the earlier Quebec provision.

Also in 1984, the Ontario government referred to the Ontario Court of Appeal a series of questions concerning the consistency of the Education Act and proposed amendments with section 23 and with the “Canadian Charter of Rights and Freedoms” in general (“Reference re Education Act of Ontario . . .”). Several provisions of the Education Act as it then existed were found to be unconstitutional, including ones that gave boards discretion regarding the offering of French language instruction, identified eligible pupils according to the language they spoke, and arbitrarily fixed the minimum number of pupils required for French instruction. The court rejected a fixed minimum as not being subject to local conditions and rejected any minimum defined with respect to school district boundaries since such boundaries are arbitrary and changeable.

The court was asked whether language educational rights apply with equal force to separate denominational schools and to public schools. The justices noted that the language rights could not detract from, or interfere with, denominational rights as section 29 of the Charter specifically prevents this. Denominational rights and language rights exist independently, and the justices saw no necessary interference between the two. Their affirmative answer to the question means that in Ontario and other provinces with denominational schools, both types of rights must be respected independently. Specifically, where independent French and English language boards exist there must also exist the right of a denominational minority to dissent from either board. Thus a single geographical area could contain four different school systems, a non-denominational public one and a denominational separate one for each language. This has already happened in parts of eastern Ontario.

Considerable attention was given to the meaning of subsection (3). The court expressed the opinion that the number required for publicly funded instruction would be less than that required for minority language educational facilities. These facilities were to be separate from majority language facilities. Such separation implies not only a physical separation to ensure a minority language environment but also an element of minority control of the administration of the school. The quality of the facilities and the quality of education in general for the minority language group must be equal to that of the majority.

In a 1990 Alberta decision, “Mahe v. Alberta”, the Supreme Court of Canada provided further clarification of section 23. With respect to minority language management and control, the Court ruled that there was a sliding scale based on the projected number of students that would eventually take advantage of minority language education. The minimum number required for minority language educational facilities in 23(3)(b) is greater than that required for minority language education in 23(3)(a) but is not a single number. Instead, the requirement for control increases as the number of minority persons increases. Under some circumstances, a distinct minority language school board may be required but, in other cases, numbers will be insufficient to justify this. In the latter case there should be minority language trustees on the school board in a number at least proportionate to the number of minority language students served by the board. These trustees must be given exclusive control over those aspects of minority education that pertain to linguistic and cultural concerns including staffing, expenditure of instructional funds, and instructional programming (“Mahe . . .”, 94). Minority language advisory committees to school boards do not satisfy minority management and control requirements. Section 23 does not give linguistic minorities any right to levy taxes (93, 98) although it does guarantee them a level of per pupil expenditure at least as high as that of the majority (95). Finally the Court struck down a regulation requiring that a minimum of 20 percent of class time be spent on English language education regardless of the language of instruction. This regulation impaired the rights of the francophone minority and the defendant government of Alberta had not successfully argued that the regulation was a demonstrably justifiable reasonable limit on the appellant's rights. Nevertheless it was held that, because of the importance of the English language in Alberta, some minimum level of English instruction could be justified.

In 1993, the interpretation given in the Mahe case was further clarified by the Supreme Court of Canada in “Reference re Public Schools Act (Manitoba) s. 79(3), (4), & (7)”. The Court pointed out that on the Mahe sliding scale of minority language educational facilities, the requirement for separate physical facilities appears near the bottom followed by increasing requirements for minority control as student numbers increase. In this case, as in all the previous ones, the Court refrained from prescribing a specific set of institutional arrangements to satisfy section 23. Any specific arrangements must be subject to pedagogical and expenditure considerations, which will differ both among and within provinces. By the time this case had reached the Supreme Court of Canada, Manitoba was planning to have one French language school board for the entire province which would supplement but not necessarily replace existing arrangements for French first language instruction. This solution was judged to be acceptable.

Minority Language Education

The education of anglophones in Quebec and francophones in the other provinces and the territories has official status as minority language education and is the main topic of this section. Languages other than English and French are taught, frequently as part of heritage language programs that may receive some government financial support. Heritage languages include many from Europe and Asia as well as some aboriginal Canadian languages. Although these other languages have no specific constitutional status, they are an important part of Canadian life. In six provinces and two territories, there are more persons with unofficial languages as a mother tongue than there are persons with French as a mother tongue (Harrison . . .). The other four provinces include Quebec in which the English minority just outnumber those with unofficial languages as a mother tongue, New Brunswick with slightly more than one-third of the population being Francophone, and Prince Edward Island and Nova Scotia with small Francophone minorities that outnumber even smaller unofficial language minorities. Both Ontario and Manitoba have Francophone minorities of around five percent of the population, but in both provinces those with an unofficial language as mother tongue outnumber Francophones by more than four to one.

Provincial provisions for minority language education have little in common from province to province and are in a state of flux. Ontario legislation provides for French language instructional units within existing school boards but the province has created distinct French language boards in Metropolitan Toronto, Ottawa-Carleton, and some other areas with sufficient numbers of francophones. In some northern areas of the province, francophones are in the majority and therefore control the existing boards. The school system in New Brunswick is completely divided along linguistic lines with separate sets of school boards and districts for the two languages and a provincial department of education linguistically divided from the two deputy ministers down. This arrangement was in effect prior to the 1982 constitutional amendments which explains why New Brunswick is one of a few provinces without a court case under section 23.

A number of provinces with small francophone minorities have moved or are moving in the direction of creating one French language school board for the entire province. These provinces include British Columbia, Saskatchewan, Manitoba, and Prince Edward Island. This avoids the problem of conflicts between majority and minority language trustees in majority language boards. It also makes irrelevant the difficulty of assessing minority numbers across existing school board boundaries. This option could exacerbate the problem of local minorities so small that they cannot justify a separate physical facility. Since minority language boards must be given the authority to “make agreements for education and services for minority language pupils” in accordance with the Mahe case (108), this problem should be amenable to an inter-board contracting solution.

Two additional problems arise whenever two or more school boards, whether they be linguistic or denominational, serve the same geographical area. The electorate must be sorted on the basis of language, denomination, or both in order to determine which voters vote for members of which school boards or minority units within school boards. Having children in one or the other of the systems is insufficient because many voters do not have children in schools or at all. Most jurisdictions are now requiring a simple declaration from voters rather than imposing any sort of language or religious test. A second problem in those provinces that earmark a part of the local property tax for school purposes is that of determining the tax rate and dividing up the tax revenues among the boards. Corporations pay much of the property tax and, of course, they have neither a language nor a religion. Language minorities have no constitutional right to tax but denominational minorities, including those that are linguistically distinct, frequently do. This can also cause complications.

Conclusions

Constitutional language rights in Canada arise from the Constitution Act, 1867, the Manitoba Act, 1870, and the Constitution Act, 1982. In 1867 a weak form of bilingualism was imposed on the governments of Quebec and Canada by what was then the British North America Act, 1867. The Manitoba Act, 1870 did the same for Manitoba. The Constitution Act, 1982 imposed a strong form of bilingualism on the governments of New Brunswick and Canada.

Language educational rights arise from the Constitution Act, 1982. That act guarantees to certain groups of Canadian citizens the right to have their children educated in Canada in one or the other of the official languages. The groups are determined by the mother tongue and the language of elementary education of the citizen. These rights are subject to a sufficient-numbers criterion, but where the numbers are sufficient there is also the right to have minority language education provided out of public funds.

Questions for Thought and Discussion

Bibliographical Notes

The two best overall references for this chapter are the Martel book, which is in both French and English, and the Brun and Brun book, in French. French immersion and heritage languages are dealt with in the Canadian Education Association publications listed under “French” and “Heritage”. Statistical data on language, based largely on the 1991 major census of Canada, can be found in Harrison and Marmen.

Bibliography

“An Act to Amend `The Public Schools Act'”. (1897). Acts of the Legislature of the Province of Manitoba. Winnipeg: Queen's Printer. 1897,1,26: 99–101.

“An Act to Provide that the English Language shall be the Official Language of the Province of Manitoba”. (1890). Acts of the Legislature of the Province of Manitoba. Winnipeg: Queen's Printer. 1890,1,14: 55.

“Attorney-General of Quebec v. Blaikie et al.” and “Attorney-General of Quebec v. Laurier et al.” (Supreme Court of Canada, first Blaikie case). (1980). Dominion Law Reports (3d). 101: 394–404.

“Attorney-General of Quebec v. Blaikie et al.” and “Attorney-General of Quebec v. Laurier et al.” (Supreme Court of Canada, second Blaikie case). (1981). Dominion Law Reports (3d). 123: 15–32.

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