Is bilingualism in peril in Canada?

[00:00:00] Gabriel Miller: Welcome to the Big Thinking Podcast, where we talk to leading scholars about the most important and interesting questions of our time. I'm Gabriel Miller, and I'm the president and CEO of the Federation for the Humanities and Social Sciences. Today's topic is an important one for this country. Is bilingualism in peril in Canada? To examine that question, I have the pleasure of sharing the mic with Professor François Larocque, lawyer and full professor of common law at the University of Ottawa.

[00:00:37] Professor Larocque holds the University of Ottawa's research chair in language rights and issues, a position dedicated to the study of minority language rights and the constitutional protection of French in particular. I hope you enjoy it.

[00:00:57] Can you just briefly describe to me what you do now, uh, at the University of Ottawa, but also in your, in your legal work? 

[00:01:04] François Larocque: I am a professor of law at the faculty of law at the University of Ottawa, in the common law section. We have two legal traditions, two main legal traditions, I would say in Canada, two colonial legal traditions in Canada, civil law that we've inherited, uh, from France, and that is mainly in place in Quebec.

[00:01:21] And we have the common law, which is in place in the English speaking parts of the country. And the common law also applies to what's considered public law, which is also in, in, involved in Quebec, in places in Quebec. So I'm in the common law section. So we teach this British, uh, legal tradition that we've inherited in Canada, but I teach it in French.

[00:01:40] My program where I teach is, uh, a direct consequence, if you want, of official bilingualism in Canada. I do have two girls. They go to school here in French in Ottawa. We're a Francophone family. And my, uh, I guess that's also part of my story and, and why I do what I do. My wife is a Franco-Albertan, and I'm a Franco-Ontarian.

[00:02:02] Gabriel Miller: One of the things that I understand, and I wanna make sure I've understand it properly, is that in effect, we aren't, when you look across the country, living up to our commitment, our obligation to provide equal access to federal services, to speakers of English and French, and of course we're thinking particularly of sizable francophone minorities,

[00:02:30] although I guess the same questions come up within Quebec around the English speaking minority. First of all, am I right about that? That we have made a commitment constitutionally and legally that you don't see being fulfilled when you look around the country.  

[00:02:49] François Larocque: It's never perfect, right? All these things are imperfect and the implementation is always gonna be 

[00:02:55] spotty, but you want it to be as little as, as best as possible, and you want it to work as best as possible across the country. For instance, if you're, if you are a, uh, Francophone landing in Vancouver at the airport and you're going through customs, then you should be able to have that interaction happen to you in French, if that's what you want. 

[00:03:15] And vice versa. If you're landing in Montreal or in Quebec or and you want to have an English interaction, you should be able to do that. And that, or taking a train, uh, with Via Rail or, or taking a flight on Air Canada. These are all places where our Official Languages Act applies. And as part of creating linguistic security, that's what I mean by linguistic security is creating this ecosystem where all the different facets of public life.

[00:03:43] are available to you as a minority official language speaker, and you don't have to pay a social price of any kind for being who you are and for speaking the language you speak. And by social price, I mean either waiting longer in line because the one bilingual person is not available to serve you or because,

[00:04:05] or because the quality of the surface is not up to par. So these are all what I consider to be social prices that can make a person switch and decide to, well no, this is gonna take 20 minutes longer if I decide to want my service in French, so I'm gonna ask for it in English. So that creates linguistic insecurity and, and jeopardizes the whole structure.

[00:04:26] We need the system to fire on all cylinders in both official languages.

[00:04:28] Gabriel Miller: It’s not just a question of it being available in theory or technically available. It really has to be available in a way that is equal and that you aren't in, in effect, gonna just be drawing people away from accessing services in their preferred language because it's so much more inconvenient.

[00:04:49] François Larocque: This is a principle that the Supreme Court of Canada has developed, for instance, availability of minority education. So I, if for instance, there's a French school in Vancouver, but it's so poorly funded and the quality is so dismal that a reasonable parent would not send their child there because they want them to have the best education.

[00:05:10] So they make the choice, deliberate choice to send their child to the better school nearby their house, which happens to be the English school, just because it has more money, it has better infrastructure, uh, you know, better programs, or whatnot. So that's the test Supreme Court has developed for minority language

[00:05:28] education is, would a person be deterred, dissuaded from exercising their right when evaluating the quality and assessing the quality of the service? Is it so bad that a person would make the choice not to use it and in fact use the majority language? And that's how we, we sort of assess if, if it's, if equality has been achieved or not.

[00:05:48] So applying that same logic to services or to access to justice, we can ask those questions and say, well, is the level of service so poor in French that a person would be deterred from asking for that service. Or if it's gonna take me three times a time at customs to get processed because I'm, I really want to have that French interaction, then maybe I'll make the choice.

[00:06:13] No, I'll go in the quicker English line and so I can get through and get my, get to my suitcase and go home. That's the kind of small everyday decisions that gradually tear away at a minority, minority language community and make them decide to not make those efforts every day to speak their language, to live and to persevere in their own language and their culture.

[00:06:36] Gabriel Miller: Yeah, and you know, this idea of the connection between access to services and to a sense of security in your language is really, makes a lot of sense, especially when you start thinking about these experiences at a human level. I remember it's probably 10 years ago now, I did three weeks at a, uh, little community college in Trois Rivieres to work on my own French.

[00:07:03] It was the first time since elementary school I'd done any kind of immersion and what you're saying reminds me of that experience in two ways. One, it was, it there's, it is a reminder when you're so used to being in the linguistic majority, to suddenly find yourself in a situation where you can't take it as for granted that you'll be able to do things in your first language.

[00:07:27] And so it probably, frankly, that particular, achieve more in terms of getting a better appreciation of what it must be like to be a French speaker in an English, in an English majority environment than I actually improved my French. That took a few more, that took a few more visits to other places, but I felt it myself.

[00:07:47] And then I remember one of my teachers there talking about a trip she'd made elsewhere in Canada and how it felt to her when she tried to get service in French and wasn't able to, and frankly how un-at home it made her feel. And when I hear, you know, security is a word that has a lot of different connotations.
[00:08:11] And obviously in the case of language, the security of actually being able to hold onto it, but also the sense of security you get when you're at home somewhere. 

[00:08:19] François Larocque: That's exactly right. You've hit it right on the head. It's about that feeling of feeling safe at home. This is your country too, and that country responds to you and your languages because it's also your country.

[00:08:31] And that's definitely part of it. It's also about dignity that you have access, full access to every public institution that you are also paying for, by the way, through your taxes, and that it's open to you in your language and it will be there for you in your language. Yes, say security includes safety, dignity, respect.

[00:08:51] That's all part of linguistic security. But it also has a very, uh, it can also have a very, uh, concrete example of bodily security. I'll give you an example of the Covid, in the opening days of Covid, there was a shortage of, remember those days when everyone was emptying the shelves at the grocery store and buying all the Purell and buying all the toilet paper?

[00:09:10] And so there was a shortage of certain of these things, and so the health minister used a power that is provided under the Health Act, the Canada Health Act, where she can suspend all the bilingual labeling rules so that she can order that in order for candidates to be able to import on an emergency basis.

[00:09:32] All these products that we needed to effectively arm ourselves against against Covid. So they permitted for the emergency accelerated importation of Purell and Clorox and all these things. And they said, and these products don't need to respect Canadian labeling rules. They can all come in English. It’s fine.

[00:09:49] And so all of a sudden the marketplace was flooded with these products without the benefit of bilingual labeling. And so, this is what unequal treatment of languages looks like, right where the default is, well, geez, we're in a difficult bind, so we're gonna default to just English labeling. The reverse would not have flown over very well.

[00:10:11] If she says, let's import everything with French labeling or Spanish labeling, or, you know, we have a good shipment of Purell coming in from China, we'll get everything in Mandarin. People obviously would've been upset by that. So this also happened, and on the same day when this order came down from the health minister, her office was tweeting when taking medication during Covid and wash your hands.

[00:10:32] And when using disinfecting products, be sure to read the labels. Be sure to read carefully the labels and use them properly as instructed on the labels. But here a big segment of the, of the population was being deprived those instructions in their language, and so they were essentially told to fend for themselves when applying these novel products.

[00:10:53] Gabriel Miller: Well, and as with so much else with Covid I think it's another reminder that it's not enough to just wait and tend to these questions when the crisis strikes, right? If you have the kind of commitment to both official languages that Canada says it has, then it has to be, it has to remain a kind of present, an immediate priority, or you'll be in that situation.

[00:11:18] What I took from reading about some of the things that you've said about this in the past is that the equal commitment to both of these languages is not an optional thing for Canada under our Constitution and under the Charter. This is the very essence of the pact among the various parts of this country that are that the cornerstone of the Constitution and the charter.

[00:11:49] And so the feeling that people sometimes have that this is only a matter of how hard people are pushing these issues politically or how many people are enrolling their kids in French immersion is misleading. Because this is much more fundamental to the very essence of the country than that. And in fact, if we aren't living up to that commitment, we aren't living up to the very definition of what Canada

[00:12:21] Is meant to be. Is that a fair description? 

[00:12:25] François Larocque: I would totally say yes. That's a very fair description. It boils down to what? To a philosophy or an understanding of what constitutions are, of why we have constitutions in the first place. Constitutions are meant to be, they do a few things. 

[00:12:43] Obviously, they give you the legal framework on which your government is established and will function, and that's important. Whether you're a democracy, whether you're a republic or whatnot, constitutions will be, will give you at least the inner workings of mechanics of your government.It also contains or is meant to reflect the vision of the individual

[00:13:03] in relation to the states of the communities that make up the country, and we've both, in 1867 when we had a hand drafting the first constitution, it was, the intention was back then even that we had these two big linguistic communities. And we're gonna find a way for them to get along. Here's what we proposed and they had one, they had section 1. 33 and that was it.

[00:13:29]  And this will cover it. It didn't cover it and it gave rise a whole slew of other problems cause we didn't I think define it well enough in constitutional legal terms back then and that bred the difficulties that we got to know in the 20th century and the upset and the resentment and Quebec nationalism and the rise of separatism. And that all stems from an unsatisfactory treatments of the French language and culture as part of our initial constitutional arrangement.

[00:13:59] This is why repatriation was so important. This was the opportunity where we said, okay, we're gonna do it right this time. We're gonna, we're gonna establish a new constitution where we can amend ourselves, but also establish a clear, clearer vision of who we want to be as a country. A country that is centered around two languages.

[00:14:19]  Now we can criticize that, right? Today, particularly at the age of reconciliation and where Canada’s in the context, where Canada is obviously so clearly dependent on immigration and multiculturalism, as demographics evolve, maybe that linguistic balance between French and English will be called into question, and maybe we can add a third or a fourth official language.

[00:14:41] These are things that are open to us now that we can amend our Constitution, but the status of French and English under a constitution, not only is it entrenched, not only is it the fundamental premise on which the whole Constitution is founded. We cannot touch that aspect of the Constitution without undoing the Constitution itself.

[00:15:02] Gabriel Miller: There is a very definition of the country built into our Constitution that commits us to this vision of official bilingualism. And then of course, there's the way that that's being upheld and lived out across the country. And I want us to turn to that in a moment, but I wanted to stick with this idea of a legal framework because of course then it's within the courts that questions about how that framework is applied and what it means specifically in various circumstances gets worked out.

[00:15:39] And I know that there's some really interesting developments on the legal front now, including a case I think you're involved in British Columbia, and I wanted to just get your take on where we are at and sort of right now, the most interesting, current developments in terms of our legal interpretation of official bilingualism in  Canada.

[00:16:01] François Larocque: I think this is very exciting time to be involved in language rights because of all that's going on right now, and it's a very busy time. There's a, there's an effervescence of questions coming through the country around the status of French and English and study, and nevermind on the whole issue of Indigenous languages, which is also fascinating and there's tons of great legal work being done there as well, but, just focused on the French and English, for instance, the fact that we have a charter of rights and freedom that codifies all these language rights. 

[00:16:32] And one of the consequences of that is it empowers the courts to decide and resolve debates about how those rights are to be applied and what those rights mean and what they cover and what's captured in them, and what's not captured in them. So that means we, we've entered since 1981 into an era of

[00:16:52] judicial activity around language rights. Before there was hardly any language rights jurisprudence, so you can hardly ever go to court and challenge Rule 17, for instance. There was one attempt at that, but it failed miserably, went all the way to the Privy Council in England and it failed, it didn’t work.

[00:17:10] There was not an understanding that language was a judiciable issue back then. It is now since the charter because everything in the charter is left for the courts to interpret and apply, including the language rights. So here's where we are right now in our understanding of volumes. Section 16 of the charter identifies French and English as being the two official languages and that they are equal

[00:17:33] in right status and privileges. What's changed is our understanding what that equality means of what that equality entails. It's not true from a pure demographic and numbers basis that French and English are equal in Canada. There's, uh, 23% of us who are Francophone, the rest are Anglophone or, and then obviously between both two main language groups are tons of people who speak multiple other languages, but

[00:18:03] focusing on official languages, the two languages are not on unequal footing, numerically speaking, and the sheer demographic weight. So what's changed is an understanding of that and what it means on the right side. So there, there is a such a concept in human rights called ‘substantive equality’ as opposed to ‘formal equality’.

[00:18:25] It's worth explaining. Formal equality means treating everyone the same. If you, uh, if you have, uh, two kids and you have a cake, you cut the cake in two and you give each an equal share of the cake, that would be formal equality. Substantive equality would mean, looking at what are the needs here? Who's eaten last, who's more hungry, who has allergies?

[00:18:46] And we're looking at the particularities of each kid and say, well, maybe you don't, cake is not what you need. Maybe you need like a sandwich, maybe you need, maybe you need fruits instead of cake. It's basically looking at the communities themselves, the needs themselves, and individualizing the results

[00:19:05] so that you can level the playing field. So this means typically that when you're looking at substantive equality, that you're gonna look at disadvantaged, disenfranchised groups and treat them differently than you would groups for the majority. In order to make up for that disadvantage, make up for the disenfranchisement and try to

[00:19:27] remedy the disparity in your order. If you're a court and you're trying to redress inequality, you're gonna tailor your judicial findings so that equity can be achieved as opposed to just formal equality. So this idea of substantive equality as opposed to formal equality is also part and parcel of language rights as a field.

[00:19:50] So this is how we think about language rights issues is like, Francophone minorities in order to continue and if they're going to be recognized in the future and have services they perhaps need differentiated treatment as opposed to the majority. So here's that I, that's where we are right now.

[00:20:12] We're unpacking what that might look like. How do we deliver French services in a way that is responsive to the needs of the community and respectful of the letter and spirit of the constitution? How do we deliver French education, French language education in this country in a way that allows

[00:20:34] minority Francophone communities to not only survive but thrive, whether you're in central BC or whether you are in Eastern Ontario or Western New Brunswick or Newfoundland, how do we create school systems where no matter where you are in the country, you can still learn and grow in your language, your official language.

[00:20:53] So, so those are the issues we're exploring right now.

[00:20:57] Gabriel Miller: The government is in the process of updating Canada's official languages Act, and it's said that its goal, or among its top priorities for this piece of legislation is to protect and promote the French language. And to preserve the rights of minority language speakers in Canada.

[00:21:23] What's important about this piece of legislation? 

[00:21:26] François Larocque: It's the first time in a very long time that we've actually taken a look at it and opened it up to, to see how we can tweak it and strengthen it. And here, what's really, I think, remarkable is the fact that the government has taken into account this reality, the asymmetrical reality between these two official languages.

[00:21:45]  That even though in the law they are equal in rights and status and privileges, the reality on the ground is quite different. And so here we have a, uh, bill that tries to address that discrepancy and tries to shore up the weaker of the two official languages, the French language, by a variety of means and initiatives that's proposed in the, uh, in the bill.

[00:22:10] For instance, we can argue in front of all the federal courts cases in French or in English, you can bring as a litigant or as a party or as a lawyer, arguing cases, you know, you can argue another official language of your choice and this was always the case, arguably since 1867. It was then put in the Act in 1969, then detailed in 1988 even more, but there was a special carve out for the Supreme Court of Canada in the current legislation

[00:22:40] that's still enforced today, saying that we can argue in front of a federal tribunal the official language of our choice, and we are entitled to have a judge or a panel of deciders that will be able to understand us without the need of translation, without the need of translation in the official language of our choice, except at the Supreme Court of Canada.

[00:23:03] That's the only place where there was a special carve out for the Supreme Court, an exemption for the Supreme Court, where the judges did not have to understand the argument and the submissions of the lawyers in the official language they were made because they could rely on, uh, simultaneous translation.

[00:23:22] And this was an exception that was controversial in 1988, when it was, when it was added. But, uh, you know, it was deemed that it would be a temporary measure until we can ensure that there's a sufficient pool of Supreme Court worthy candidates that would be comfortable enough in both official languages where we

[00:23:41] can do away with the exemption and apply a, uh, a common rule for all the federal courts, including Supreme Court of Canada. So here we are now in 2022 and we're finally doing away with that exemption for the Supreme Court of Canada. So going forward, it means that all nine of the Supreme Court justices should be in a position to hear all cases in both official languages in one or the other, or both.

[00:24:05] Gabriel Miller: Wow. I hadn't actually understood that. When you think about the court then, do you see this being a catalyst for change in terms of how justices, how judges are trained, how they understand their responsibilities, or is this more a quick question of kind of formalizing something that the system is already incorporated?

[00:24:33] François Larocque: I think the latter. I think this, to me anyways, being involved in legal training and legal education as I am, and legal education in the minority language as I am, we've been doing this for 30 years. We've been training lawyers who then go on to become judges in both official languages for decades now.

[00:24:51] So I think we've come to a point, bilingualism, official bilingualism has achieved a state of maturity in this country where we have, we really have that pool there. We have a very deep and wide pool of jurists across the country who certainly worthy of sitting on the Supreme Court of Canada, the best legal minds in the country, and they're capable of hearing and listening to arguments in both official languages.

[00:25:13] And that might not have been always the case, but now that we have my program at U of Ottawa, there's Moncton that teaches in French, but also we have bilingual programs that are tailored for judges at West, for lawyers at Western, sorry. We collaborate with University of Calgary, with University of Saskatoon training a whole new generation of lawyers who effectively bilingual and we're capable of interpreting the statutes, reading the statutes, and making arguments in both official languages.

[00:25:41] I think it's great. I think this is what official bilingualism entails and requires of us as a country.

[00:25:46] Gabriel Miller: When we think about the future, and if we look past the current changes that are being proposed to the Official Languages Act and we think about language security for the next generation, what more do you feel the country needs to be doing to secure that future? 

[00:26:14] François Larocque: Few things, and that's going straight to what's actually before the courts right now and what's coming up? One big one will be maintaining the demographic weight of the minority francophone population. So in in absolute this 2021 census just showed that French is in a continued state of decline in this country.

[00:26:36] Not in absolute numbers, like there's actually more bilingual people now that there's everywhere in many time in, in history, but of people who identify as French as their either mother tongue or as their main language in their life, in their household because of mixed marriages or whatnot, or part of part of their daily life at work or whatnot, that number is declining.

[00:27:00] And so there's, there needs to be more efforts being made from the government to stabilize or increase the demographic weight of Francophones. Immigration is seen as the big missing piece here. So under the new act that's coming up, there's gonna be an obligation on the Minister of Immigration to come up with a very detailed francophone immigration policy with targets and indicators, aggressive targets and indicators to increase essentially the number of people we welcome from

[00:27:31] the French speaking world so that we can increase the number of Francophone speakers that we welcome in this country on a daily basis. I think that'll do a lot of good. And that's one piece. Another piece is making sure that we have good services. And that's true at the federal level and provincial level.

[00:27:51] Cause it's one thing to welcome new Francophones from all over the world, from West Africa, from France, obviously from Western Europe as well. But once they get here, they need to have access to schools. Then they have to find a doctor. They need to be able to live a significant part of their life in their official language of their choice.

[00:28:09] Cause it is after all the official language of the country. So we have to continuously work on, on, on improving the delivery of services in both official languages. One big part also is we guarantee right now under section 23 of the Charter, the right to minority language education, but that covers only elementary and secondary school.

[00:28:32] What about post-secondary? Why? Why isn't there more stronger or, or any guarantees, constitutionally or legislatively even to strengthen and improve the availability of French language, post-secondary education? So all these people that, that we've allowed to study in French during childhood and adolescence, what if they wanna study, uh, medicine in French or go to or study philosophy in French as I did, or in law school in French?

[00:29:00] Sure, you have options if you're in Ontario, but what if you're in Saskatoon? What if you are in British Columbia? What are the options there? So Bill C 13 also has some interesting obligations there for the government to fund and improve the ability of French language post-secondary education options, that's great.

[00:29:20] But it remains to be seen how it's gonna be rolled out. But I see that with the collapse of the Laurentian University and basically where the French language side of that university was the most deeply affected by the cuts. And by the bankruptcy that was declared there, by the troubles that currently being experienced in Alberta, at Campus Saint Jean, again, on chronic underfunding of these institutions.

[00:29:46] And yet we need to open up those institutions, not shut 'em down, not underfund them. So we need to do more on that side. And finally, the one that's close, near and dear to my heart. Because I'm involved in this litigation directly. It's a fun fact perhaps for lawyers, but Canada being a constitutionally bilingual country, did you know that the Canadian constitution itself is not officially bilingual?

[00:30:09] The documents that make up the Canadian constitution, we’re talking about a total about 30 documents or so, a bit more. 31, not even a third of them have force of law in French, including the British North America Act 1867. That only has force of law in English.

[00:30:26] So in 1982, when we enacted the new Constitution, the framers of that constitution understood that this was a problem and made provision with Section 55, the Constitution Act in 1982 says we need to translate all these documents and enact them in French so that they can be equally binding in both official languages.

[00:30:45] After all, the constitutionally bilingual country and the French version of these documents were produced in 1990, but they've been sitting on a shelf ever since. And the government's federal and provincial and territorial have not done any meaningful steps to finally approve the French translations that were produced and to enact them.

[00:31:04] And this is a clear constitutional mandate that is actually written into the Constitution. And Senator Serge Joyal, retired, Senator Serge Joyal and myself brought an application at the bureau court to basically ask the court to order the government to get this done, to, to look at section 55, look at the French translations that were produced and to get it done to, to finally enact the French version of our constitutional documents so that we can be, I think, integrally, fully comprehensively bilingual country, starting with our foundational documents.

[00:31:46] Gabriel Miller: Thank you for listening to The Big Thinking podcast and to our guest professor François Larocque. Professor Larocque is a lawyer and Full Professor of Common Law at the University of Ottawa. I also want to thank our friends at the Social Sciences and Humanities Research Council whose support helps make this podcast possible.

[00:32:06] Finally, thank you to cited Media for their support in producing the Big Thinking Podcast. Follow us for more episodes on Spotify, Apple Podcast and Google Podcast. A la prochaine.