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A Right to Language in Education and the Challenges of Distance Education

Adrien Habermacher

Professor of Law

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

Chair: Karine McLaren

The Canadian constitutional framework entrenches the right of official language minorities to receive school instruction in their own language. This specific right often lays at the core of language minorities’ legal battles against governments, for instance in relation to the level of funding provided by government for such services, the quality of the programs and the facilities, as well as the extent to which the official language community is able to manage and control such services. Moreover, it has long been recognized that a mere translation of the curriculum offered in another language in the majority’s education system may not be adequate as the instruction provided must reflect the values and culture of the language community in question.
Against this backdrop, we have recently witnessed the generalization of distance learning at all education level during the COVID-19 pandemic. While recourse to such methods was temporary, it inevitably leads to questions regarding the possibility that government may try to fulfil their legal requirements to provide educational services to official language minorities by way of distance education programs. This may come across as a tempting alternative to allocating significant financial resources to operating dedicated facilities, especially for governments less favorable to language minorities and in regions where the numbers of right-holders are low.
This paper explores the pitfalls and benefits of this option from the point of view of language (in)justice beyond the specifically Canadian legal framework. It questions the importance of environments, physical or virtual, in the implementation of language rights to education. Building on insights from the fields of socio-linguistic, education, and law, it also considers the intersection of socio-economic and language minority status.

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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