PUBLISHED ON APRIL 17, 2017
The Canadian Charter of Rights and Freedoms is often referred to in the files of Francophones in a minority situation before the Supreme Court of Canada.
OTTAWA – The Canadian Charter of Rights and Freedoms is celebrating its 35th anniversary on April 17th. Sometimes criticized, particularly in Quebec, where it has often been criticized for wanting to empty the Charter of the French language of its meaning, it was not unanimous among Francophones outside Quebec at the outset. Today, however, it is seen as their plank of salvation.
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“Without the Charter, we would probably not be doing this interview in French,” said Mark Power, a lawyer specializing in language cases.
In many of the language cases he advocated across Canada, Franco-Ontarian lawyers have often used section 23 of the Charter, which deals with minority-language education rights, Which allowed the creation of French-language schools across the country.
“The immersion schools that were in place before were centers of assimilation. The creation of French-language schools has allowed us to survive in Saskatchewan, otherwise we would probably have disappeared, “said lawyer Roger Lepage.
Frédéric Bérard, who devoted his thesis to the myths surrounding the Charter and linguistic rights, underlines the merits of the Francophonie in a minority setting.
“Francophones outside Quebec have become the children of the Charter. Today, all provinces have at least one French-language school board, which is essential to fight against assimilation. ”
Yet, in December 1981, the Charter was a debate among francophones in minority communities, says Stéphanie Chouinard, assistant professor in the Department of Political Science at the Royal Military College of Canada. MP Jean-Robert Gauthier was one of only two members of the Liberal caucus to oppose Prime Minister Pierre-Elliott Trudeau in this matter.
“Mr. Gauthier felt that the Charter did not go far enough to guarantee access to education and the right to manage French language schools. It is also true that it could have been written more explicitly, but would it have been adopted in this case? “, She asks.
Today, Mr. Power is certain that the Franco-Ontarian member would agree that he was mistaken and that the Prime Minister was right.
The Myth of the Charter in Quebec
The Charter was not only useful for French-language education. Section 16 established the equality of English and French, obliging the federal government to better respond to the needs of francophones throughout the country. Section 20, on the other hand, recognized the right of all Canadians to receive federal services in the official language of their choice.
However, there are gaps, says Me Power.
“The Charter speaks of education only at the elementary and secondary levels, and it is absurd that it does not include early childhood and post-secondary education as well, except in New Brunswick.”
But the Charter has had the merit of helping to change attitudes across the country, says Bérard.
“Today, Quebec is the only province to follow the path of francophone unilingualism. The others are adopting more and more laws to protect the second official language, even if it is not perfect, far from it. ”
Alberta should soon have a policy on French-language services and only British Columbia and the Northwest Territories are lagging behind.
In Quebec, the Charter was accused of having participated in the decline of the French fact and of having lessened the scope of the Charter of the French language, better known under the name of Act 101.
According to M. Bérard, it is a myth.
“It has long been said that this charter was a trudeauist plot to plunder Bill 101 in Quebec for the benefit of Anglo-Quebecers. Yet, in fact, they have had no gains with the Charter. ”
But for Madame Chouinard, this is easily explained because “many of the rights of Anglophones in Quebec were already protected in the British North America Act, which was not the case for French outside Quebec Quebec City. ”
Despite the considerable advances made by the Charter for Francophones outside Quebec, the Charter did not resolve everything, leaving it to the courts to continue the work.
For Mr. Lepage, it will have especially allowed Francophones in a minority situation … to appear before the courts.
“In Saskatchewan we have to call on judges for every new school. We end up getting tired and making compromises with the provinces that are unacceptable for the survival of the community. Our schools are still not receiving adequate funding, nor are they equivalent to English-language schools, “he said, recalling that the Francophones have been asking for three new primary schools for ten years.
This reality means that, despite the Charter, the threat of assimilation still plagues Francophones in western Canada, the lawyer believes, which also regrets that the Supreme Court of Canada continues to leave to the provinces the choice of Management of school admissions .
“It seems that the generous interpretation of the Charter by the courts has slowed down since the Mahé ruling . We begin to interpret it with the eyes of the majority, “thinks Mr. Lepage.
While in Ontario the government has given some latitude to francophone school boards, this does not prevent the Franco-Ontarian community from having to rely on the courts.
Lawyer Nicolas Rouleau knows something about him, he is currently working on the request to open a francophone secondary school in East Toronto .
“It would be nice to not have to go to court, but when governments do not want to take action and block, it’s good to have that ultimate weapon.”
At a time when the demographic and therefore political weight of francophones outside Quebec continues to diminish, the Charter remains an essential asset to claim, according to Mr. Rouleau.