The following article appeared in The Metropolitain.

Our Linguistic Duality Must be a Legal Reality

By Hon. Irwin Cotler on April 22, 2013

In the words of René Lévesque, “A nation is judged by how it treats its minorities.” Regrettably, linguistic minorities in Canada have often had to fight for just treatment, and that struggle continues against the backdrop of several troubling recent developments that threaten the rights of minority language communities throughout the country. Simply put, it is critical to ensure that minority language communities feel welcome and are able to thrive, and this is as true for Anglophones in Quebec as it is true for French-speakers elsewhere in Canada.

Regrettably, Quebec Anglophones have recently come under increased pressure in the form of Bill 14, which would amend the French Language Charter with the goal of enhancing protection for French. All Quebecers – indeed, all Canadians – have an interest in ensuring the continued vibrancy of the French language and culture in our province, but this can and must be accomplished while respecting the rights of the English-speaking minority.

To that end, Bill 14 is problematic in several respects. It would:

• Allow the provincial government to strip municipalities or boroughs of bilingual status against their will if the population of mother-tongue Anglophones drops below 50%.

• Empower OQLF inspectors to seize property without a warrant, and to refer infractions for prosecution without giving alleged offenders an opportunity to comply.

• Prohibit English CÉGEPs from considering Francophone applicants – regardless of merit – until all Anglophone applicants have been accepted.

• Remove an exemption allowing members of the armed forces to send their children to English schools.

• Modify the Charter of the French Language by replacing “ethnic minorities” – a defined term in international law – with “cultural communities,” a concept lacking legal clarity.

• Make French the “normal and everyday language” in which government agencies are addressed, and require citizens applying for government assistance to apply in French or pay for translation. As the Quebec Bar Association recently noted, this could limit access to justice in English, particularly for low-income Anglophones and Allophones seeking legal aid.

Moreover, as the Quebec Bar Association also noted in its analysis of the legislation, Bill 14 could allow public servants to refuse to acknowledge anything said to them in English and require that files be translated in French at the expense of the applicant. Further, it places new and unnecessary burdens on employers with multilingual staffs, while translation inconsistencies in the bill may give rise to unnecessary litigation while burdening the delivery of social services.

Above all, however, Bill 14 would amend the preamble of the Quebec Charter of Human Rights and Freedoms to say that “rights and freedoms must be exercised in keeping with … the values of Quebec society, including … the importance of its common language and the right to live and work in French.” In so doing, Bill 14 renders Quebec’s Charter a document designed to entrench the supremacy of the majority, whereas a primary purpose of constitutions is to establish individual and minority rights that cannot be suppressed by simple majority rule.

As the Supreme Court stated in the reference on Quebec’s secession, “there are occasions when the majority will be tempted to ignore fundamental rights in order to accomplish collective goals more easily or effectively. Constitutional entrenchment ensures that those rights will be given due regard and protection.” Accordingly, while the Francophone majority may certainly seek to ensure the sustained vitality of its language and culture, the rights of the Anglophone minority must be protected even if their protection complicates the majority’s goal.

In constitutional democracies such as ours, it is the constitution that protects minority rights from what Alexis de Tocqueville called “the tyranny of the majority.” Indeed, without constitutional safeguards, a majority-elected legislature would be legally empowered to oppress minority groups. Therefore, for Quebec’s Charter to subordinate all other rights to the importance of the majority’s language would be to undermine the very raison-d’être of a human rights charter.

Inasmuch as the language minister has expressed her hope that the amendments to the preamble will affect Supreme Court decisions about Quebec’s language laws, Bill 14 seeks manifestly to reduce constitutional protections for linguistic minorities. Yet such protections must be robust, both for Anglophones in Quebec and Francophones elsewhere in Canada.

Last October, at a meeting of the Inter-Parliamentary Union held in Quebec City, Canada signed an international agreement to “uphold cultural, linguistic, ethnic, racial, political and religious diversity as a global value which should be celebrated, respected, encouraged and protected within and among all societies and civilizations.” It is time for government decisions – at both federal and provincial levels – to adhere to this noble ideal.

Irwin Cotler is the Member of Parliament for Mount Royal and the former Minister of Justice and Attorney General of Canada. He is an Emeritus Professor of Law at McGill University.