Centre for Public Legal Education Alberta Minority Official Language Rights Introduction to Minority Official Language Rights

Centre for Public Legal Education Alberta 2 Presentation Outline  The Framework  The Greater Context  The Legal Structure  Constitutional Legislation  Federal Laws  Provincial Laws  Municipal Laws

Centre for Public Legal Education Alberta 3 Introductory Comments  Why is Canada a bilingual country?  How is Canada’s bilingualism expressed?  What are the official language rights and when are they protected?  When is a language issue not a right?

Centre for Public Legal Education Alberta 4 The Framework Canadian law recognizes that  both English & French communities played an important role in the founding of Canada;  language is a fundamental aspect of individual identity & expression of culture;  bilingual character is a fundamental aspect of Canadian national identity;

Centre for Public Legal Education Alberta 5 The Framework (cont’d)  Definition of bilingualism  Our bilingualism Is seen in the language-related rules and programs that are in place. Is seen in the language-related rules and programs that are in place. Stems from constitutional and governmental commitments to equality of both languages in the public sphere. Stems from constitutional and governmental commitments to equality of both languages in the public sphere.

Centre for Public Legal Education Alberta 6 The Framework (cont’d) Constitutionally-Protected Language Rights  ensure flourishing of the two official language communities;  protect rights of our two official languages (English and French) speaking communities when they are in a position of minority.

Centre for Public Legal Education Alberta 7 The Framework (cont’d) Official Language Rights are a “collective right”: different from the “individual rights”; different from the “individual rights”; applies to people acting together ; applies to people acting together ; protects the group, its culture ; protects the group, its culture ; justified by the interests of a minority group; justified by the interests of a minority group; accessible only by belonging to a group. accessible only by belonging to a group.

Centre for Public Legal Education Alberta 8 The Greater Context To understand exact nature of constitutional language rights, it is important to look at: what is a constitutional right; what is a constitutional right; what is the structure of constitutional language rights; and what is the structure of constitutional language rights; and how do they fit with other Canadian laws and rights? how do they fit with other Canadian laws and rights?

Centre for Public Legal Education Alberta 9 Federal Powers (s. 91) postal service criminal law military banking, money marriage/divorce some taxes railway etc... Provincial Powers (s. 92) ceremony of marriage property and civil rights in the province hospitals education municipal institutions some prisons etc… Constitution Act, 1867 Sections 91 and 92

Centre for Public Legal Education Alberta 10 Legal Structure: Overview Legal Structure: Overview Power over language is not listed in the Constitution; not listed in the Constitution; tied to each particular non-language subject matter; tied to each particular non-language subject matter; divided between federal and provincial /territorial government. divided between federal and provincial /territorial government. Some official language rights are constitutionally-protected, some are not.

Centre for Public Legal Education Alberta 11 Legal Structure: Result  a set of federal language laws, AND  a set of language laws (or no language law) for each province and territory. Many of these laws continue to be examined, debated and challenged in Canadian courts.

Centre for Public Legal Education Alberta 12 Constitutional documents - Charter - Manitoba Act - Constitution Act Federal, provincial & municipal policies Federal, provincial & municipal language laws Official Languages Act, French Language Services Act

Centre for Public Legal Education Alberta 13 Legal Structure: Summary Constitutional Legislation most permanent; enshrined; harder to change most permanent; enshrined; harder to change applies to four categories across Canada: 3 in federal domain, one in the provincial domain applies to four categories across Canada: 3 in federal domain, one in the provincial domain Federal Legislation topics listed in s.91 of CA 1867 topics listed in s.91 of CA 1867 Provincial Legislation only to topics listed in s.92 of CA 1867; contain some language rights; varies. s.93 only to topics listed in s.92 of CA 1867; contain some language rights; varies. s.93 Municipal Legislation varies varies

Centre for Public Legal Education Alberta 14 Constitutional documents - Charter - Manitoba Act - Constitution Act

Centre for Public Legal Education Alberta 15 Constitutional Legislation Overarching legislation  kinds of laws that are, in a way, “higher” than other laws like an umbrella like an umbrella dictate how other laws are going to be made dictate how other laws are going to be made the “big bosses” of laws: any laws “under” them have to abide the “big bosses” of laws: any laws “under” them have to abide  BUT, if the laws under them do NOT relate to a topic on the LIST, their power does not apply.

Centre for Public Legal Education Alberta 16 Constitutional Legislation (cont’d) Most permanent commitment to bilingualism comes from rights in constitutional documents: the Canadian Charter of Rights and Freedoms, the Canadian Charter of Rights and Freedoms, section 133 of CA 1867, and section 133 of CA 1867, and section 23 of the Manitoba Act, section 23 of the Manitoba Act, 1870.

Centre for Public Legal Education Alberta 17 Constitutional Legislation (cont’d)  guarantee, under certain conditions, minority language rights in: education (provincial) education (provincial) governmental communications and services (federal) governmental communications and services (federal) legislation and publications (federal) legislation and publications (federal) judicial rights (federal) judicial rights (federal)

Centre for Public Legal Education Alberta 18 Federal Laws Additional laws passed by federal government; related only to topics in s.91 of CA Additional laws passed by federal government; related only to topics in s.91 of CA related ONLY to federal law and federal government. Example: the federal Official Languages Act related ONLY to federal law and federal government. Example: the federal Official Languages Act One way the federal parliament puts constitutional language rights into action. One way the federal parliament puts constitutional language rights into action.

Centre for Public Legal Education Alberta 19 Provincial Laws Laws passed by provincial/territorial governments, related only to topics in s.92 of CA Laws passed by provincial/territorial governments, related only to topics in s.92 of CA Lots of these laws: New Brunswick, Manitoba, Ontario. Lots of these laws: New Brunswick, Manitoba, Ontario. Less or almost none: British Columbia. Less or almost none: British Columbia. BUT – even if they don’t have “laws”, doesn’t mean you cannot get French services. BUT – even if they don’t have “laws”, doesn’t mean you cannot get French services. Policies developed by a department or ministry; Policies developed by a department or ministry; In such instances, official minority language communication and services are a matter of policy, not of right.

Centre for Public Legal Education Alberta 20 Municipal Laws  Municipalities also vary: some have passed by-laws, some have not. Winnipeg and Ottawa. Winnipeg and Ottawa.  Some smaller municipalities, especially if they were founded by speakers of the other official language, may be quite bilingual. Lac La Biche, AB Lac La Biche, AB  May be a matter of policy.

Centre for Public Legal Education Alberta 21 Legal Structure: Summary Constitutional Legislation most permanent; enshrined; harder to change most permanent; enshrined; harder to change applies to four categories across Canada: 3 in federal domain, one in the provincial domain applies to four categories across Canada: 3 in federal domain, one in the provincial domain Federal Legislation topics listed in s.91 of CA 1867 topics listed in s.91 of CA 1867 Provincial Legislation topics listed in s.92 of CA 1867 ; contain some language rights; vary; s.93 topics listed in s.92 of CA 1867 ; contain some language rights; vary; s.93 Municipal Legislation vary vary

Centre for Public Legal Education Alberta 22 Questions?

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