Category Archives: Canada

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Panel: The Legal Framework for Languages and Models of Linguistic Officiality

Panel chair: Juan Jiménez-Salcedo

Is Switzerland as language-friendly as its reputation suggests?

Prof. Dr. Manuel Meune

With its four official languages​,​ Switzerland, where most citizens identify with the Swiss “nation of will”, appears to have “satisfied” its linguistic minorities and rarely makes international headlines because of language conflicts. This success is often attributed to the absence of linguistic enclaves (except for Romansh) and the principle of territoriality. However, language freedom also plays a role along the German-French language border (Biel/Bienne) or in Graubünden, where the decline of Romansh is hard to stop. And some heated legal debates have taken place particularly in multilingual cantons.

In addition, the “language peace” can be linked to pragmatism and non-intervention. Even without legal protection, Swiss German dialects are very much alive, in a stable diglossic relationship with standard German. But Switzerland’s flattering image seems misleading in regards to its “fifth language” – Francoprovençal. The country has not done much better than centralist France in protecting this age-old language. Its recent inclusion in the debate on the implementation of the European Charter for Regional or Minority Languages offers some perspectives of revitalization, as does the proactive policy of the cantons of Fribourg and Valais, but this minimal legal protection comes very late.

Canada’s language regime: policy-choices and the modernization of the Official Languages Act

Prof. Dr. Linda Cardinal

Canada is a federal country. Canadian federalism is the result of a political compromise between its two main groups, Anglophones and Francophones. It language regime is also informed by political compromise. Because of federalism, language is ancillary in Canada. All governments can adopt their own language policies. As a result, Quebec has its own language policies as well as all the other provinces and territories except for British-Columbia.

This paper will discuss language policy-choices at the federal level. It will explain how such compromise has informed four generations of language policies. It will present briefly these different generations and their main characteristics. It will focus on the government’s new proposed legislation to modernize its Official Languages Act (Bill C-13). It will discuss its key points and show how it is continuing Canada’s language compromise while trying to propose change. The paper will conclude by explaining why it is important to look at patterns of continuity and change in the study of language regimes.

The Belgian language regime and the limits of the law as a language policy tool

Dr. Sophie Weerts

The Belgian state is a federal state, bringing together three national linguistic communities (Dutch, French and German speakers). Its linguistic organisation is part of a ‘model of plurilingualism’; based on three principles of freedom, equality and territoriality. These characters are translated into the law – sometimes very imperfectly – with the freedom of language, the linguistic regions (principle of territoriality) and an institutional organization that puts the (two main) linguistic communities on an equal footing.

In this contribution, I will argue that the Belgian language regime has two critical weaknesses. First, the freedom of language is interpreted restrictively under the principle of linguistic territoriality. Second, there is a lack of formal recognition of the plurilingualism of the Belgian state. The former is a matter of legal interpretation, while the latter stems from silence in the law. These elements make it possible to say that the law is undoubtedly necessary to carry out a linguistic policy that ensures linguistic pacification but cannot be seen as sufficient.

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Linguistic justice in the justice sector: Legal multilingualism management in Canada during COVID-19

María Sierra Córdoba Serrano

In a multilingual – but officially bilingual – country like Canada, translation (understood broadly) has often been conceptualized as a cultural-linguistic value. However, I have argued elsewhere for the need to move away from a model of multilingualism management that is primarily predicated on identity arguments and toward a broader framework based on the idea of access and human rights, a minimum threshold that, once defined, would apply to any language group. The state would develop a policy framework that guarantees accommodations for all language groups beyond official languages in well-defined “high-risk” situations in which fundamental human rights could be compromised (i.e., when accessing justice, healthcare, or education).

Building on the idea of “risk” and the fact that crisis settings can be placed at the high end of the spectrum of high-risk situations, I will focus on legal multilingualism management during the ongoing COVID-19 pandemic in Canada, and I will analyze the existing translation policies and practices within the Abitibi judicial district of Quebec.

The impact of the pandemic on access to justice in Canada has been disproportionate, affecting certain segments of the population more than others, especially marginalized individuals, including speakers of official and non-official minority languages (Action Committee, 2021, online). Adopting a top-down approach, I will begin by analyzing relevant language policy instruments to determine if they contemplate emergency situations, and then move to other documents related to the courts’ emergency preparedness planning to see whether language needs are contemplated. Through interviews with key stakeholders, I will then analyze the language management practices within the district in question.

Ultimately, I want to illustrate how lessons learned from managing legal multilingualism in crisis settings in Canada can inform the development of a policy framework and best practices for the provision of language access services in high-risk situations beyond crises.

Keywords: legal multilingualism management, Canada, crisis translation.

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Interpreting bilingual legislation in Canada: Can “Shared Meaning” cause Linguistic Injustice?

Karine McLaren

Professor of Law and Director of the Centre de traduction et de terminologie juridiques (http://www.cttj.ca)

Panel: Linguistic equality and justice in the face federal diversity: A Canadian perspective

Chair: Karine McLaren

The classic canons of statutory interpretation are well-settled. Today, Elmer Driedger’s modern contextual approach is widely accepted as Canadian courts’ preferred approach to statutory interpretation. Yet the existence of bilingual statutes in Canada adds a fourth dimension to the interpreters’ toolbox, one that is foreign to the standard interpreters’ toolbox, carefully constructed over centuries and shared by common law traditions. The “shared meaning rule”, derived from the equal authenticity of English and French versions of Canadian statutes, thus “seeks to fill a void” left by the contextual interpretive approach. It does so by adding a step to the interpretive process, which, in the event of linguistic discordance, focuses on the meaning that is shared between the words respectively in the two language versions of the offending disposition. 

Not surprisingly, the unmistakable “textualist bend” of this approach has led to criticisms:  

«Linguistic analysis of the text is the servant, not the master, in the task of ascertaining Parliamentary intention. A blinkered focus on the textual variations might lead to an interpretation at odds with the modern rule because, standing alone, linguistic considerations ought not to elevate an argument about text above the relevant context, purpose and objectives of the legislative scheme». Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, at 39. Our goal in this paper is two-fold: First, illustrate, by reference to case-law, the inconsistent weight given to the Shared Meaning Rule by Canadian courts and its consequences on citizens affected by their rulings. Second, lay the foundations of an interpretative paradigm which frees itself of the excessive weight attributed to the very letter of the (bilingual) law and reflects the evolution of contextual Statutory Interpretation.

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The concept of linguistic equality in Canadian constitutional law: cutting the Gordian knot between Quebec’s Bill 101 and the Canadian Charter of Rights and Freedoms

Érik Labelle Eastaugh

Panel: Linguistic equality and justice in the face federal diversity: A Canadian perspective

Chair: Karine McLaren

Since 1969, Canada has adopted an array of legal measures aiming to address various inequalities between Anglophones and Francophones.  These measures have been adopted by a range of actors in a variety of different contexts, giving rise to apparent inconsistencies or conflicts between them.  The most widely remarked-upon of these apparent conflicts have been those between Quebec’s Charter of the French Language (Bill 101), a law whose purpose is to protect the right to use French in a variety of public and private settings, and the Canadian Charter of Rights and Freedoms, a constitutional bill of rights which contains standard civil and political rights as well as several sui generis language rights based on a principle of equality between English and French.  These two instruments are often described as being ‘fundamentally’ incompatible, on the grounds that they instantiate radically different principles of language policy and linguistic justice.  This supposed incompatibility is usually framed in binary terms, with proponents claiming that Bill 101 protects ‘collective’ rights, while the Charter protects only ‘individual’ rights, that Bill 101 adopts a ‘territorial’ approach, while the Charter rests on a ‘personal’ one, and/or that Bill 101 represents an exercise in self-determination by the Québécois, while the Charter is a centralizing force that deprives them of their autonomy. However, this paper will argue that the degree of conflict between the two measures is in fact substantially overstated as it rests on a series of false dichotomies, and that both the Charter and Bill 101 can be seen as pursuing a common goal of ‘advance[ing] the equality of status or use of English and French’ as set out in s. 16(3) of the Charter.  In doing so, the paper will offer a critical examination of the use (and misuse) of certain key concepts in the debates over linguistic justice, such as collective rights and territoriality. 

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Linguistic Equality and Justice in the Face Federative Diversity: A Canadian Perspective

Universitaé de Moncton, Faculty of Law, New Brunswick, Canada

Chair: Karine McLaren

Participants

Érik Labelle Eastaugh, Professor of Law and director of the observatoire international des droits linguistiques (https://www.droitslinguistiques.ca)

Karine McLaren, professor of law and Director of the Centre de traduction et de terminologie juridiques (http://www.cttj.ca)

Adrien Habermacher, Professor of Law