Transforming Rights: Reflections from the Front Lines 9781442670167

Transforming Rights draws on Yalden's extensive experience in rights work to provide a personal assessment of how i

171 67 591KB

English Pages 256 [279] Year 2009

Report DMCA / Copyright

DOWNLOAD PDF FILE

Table of contents :
Contents
Preface
Acknowledgments
PART ONE: INTRODUCTION
1. Personal File
2. School, University, Graduate Studies
3. A Public Service Career
PART TWO: LANGUAGE RIGHTS
1. The Background to Language Reform
2. The Origins of the Royal Commission on Bilingualism and Biculturalism
3. The Royal Commission Recommendations and Government Reactions
4. Summary of Commission Proposals and Government Reactions
PART THREE: HUMAN RIGHTS
1. Introduction
2. The Universality of Human Rights Norms
3. Perspectives on Human Rights
4. The Canadian Experience
5. Discrimination
6. Multiculturalism
7. Employment Equity
8. Pay Equity
9. Aboriginal Rights
PART FOUR: HUMAN RIGHTS AND INTERNATIONAL RELATIONS
1. International Human Rights Machinery
2. The High Commissioner for Human Rights
3. Regional Human Rights Machinery
4. The Human Rights Covenants and the Treaty Bodies
5. Canada and International Human Rights Machinery
6. Canada and Human Rights Violations
PART FIVE: SUMMING UP AND CONCLUSIONS
1. Language Rights
2. Human Rights
Appendix: Official Languages and Human Rights Commissioners
Notes
Select Bibliography
Index
Recommend Papers

Transforming Rights: Reflections from the Front Lines
 9781442670167

  • 0 0 0
  • Like this paper and download? You can publish your own PDF file online for free in a few minutes! Sign Up
File loading please wait...
Citation preview

TRANSFORMING RIGHTS: REFLECTIONS FROM THE FRONT LINES

This page intentionally left blank

MAXWELL YALDEN

Transforming Rights Reflections from the Front Lines

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

© University of Toronto Press Incorporated 2009 Toronto Buffalo London www.utppublishing.com Printed in Canada ISBN 978-1-4426-4007-8

Printed on acid-free paper

Library and Archives Canada Cataloguing in Publication Yalden, Max Transforming rights : reflections from the front lines / Maxwell Yalden. Includes bibliographical references and index. ISBN 978-1-4426-4007-8 1. Human rights – Canada. and legislation. I. Title. JC599.C2Y35 2009

2. Canada – Languages – Law and

323.971

C2009-901614-1

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP).

For Janice, Robert, and Cicely

Tempora mutantur nos et mutamur in illis

Contents

Preface

xi

Acknowledgments

xiii

PART ONE: INTRODUCTION 1 1 Personal File

1

2 School, University, Graduate Studies

1

3 A Public Service Career 7 a) The Department of External Affairs 7 b) The Secretary of State’s Department and the Department of Communications 16 c) Official Languages Commissioner 19 d) Canadian Ambassador to Belgium and Luxemburg 21 e) Human Rights Commissioner 22 f) Member, United Nations Human Rights Committee 23 PART TWO: LANGUAGE RIGHTS 25 1 The Background to Language Reform

27

2 The Origins of the Royal Commission on Bilingualism and Biculturalism 30 3 The Royal Commission Recommendations and Government Reactions 32

viii

Contents

a) b) c) d) e) f) g) h)

Preliminary Report 32 General Introduction 36 The Official Languages 39 Education 66 The Work World 75 Other Ethnic Groups 93 The Federal Capital 100 Voluntary Associations 104

4 Summary of Commission Proposals and Government Reactions 107 PART THREE: HUMAN RIGHTS 115 1 Introduction

115

2 The Universality of Human Rights Norms

117

3 Perspectives on Human Rights 118 a) Narrow and Broad Approaches 119 b) Rights and Responsibilities 120 c) The Pendulum Effect and the Rights Industry d) Rights and the Press 123 e) Conflicting Rights 125

122

4 The Canadian Experience 130 a) Policy Objectives 130 b) Implementation 133 c) The Charter, Legislation, and the Courts 134 d) Ombudsman Offices and Human Rights Commissions 5 Discrimination 144 a) Women’s Rights and Sex Discrimination b) Sexual Orientation 150 c) Age Discrimination 154 d) Disability 158 e) Race, Ethnic Origin, and Religion 161 6 Multiculturalism

165

7 Employment Equity 8 Pay Equity

178

183

9 Aboriginal Rights

186

147

141

Contents

PART FOUR: HUMAN RIGHTS AND INTERNATIONAL RELATIONS 197 Terminology

197

1 International Human Rights Machinery

198

2 The High Commissioner for Human Rights 3 Regional Human Rights Machinery

202

203

4 The Human Rights Covenants and the Treaty Bodies

204

5 Canada and International Human Rights Machinery

209

6 Canada and Human Rights Violations

215

PART FIVE: SUMMING UP AND CONCLUSIONS 219 1 Language Rights 2 Human Rights

219 223

Appendix: Official Languages and Human Rights Commissioners 231 Notes 233 Select Bibliography 253 Index

261

ix

This page intentionally left blank

Preface

My purpose in what follows is to examine the Canadian record on language rights and human rights, together with major strategies and programs. I was much involved in the development of policy in this area, and I find a continuing interest in recalling what was intended in the first place (not what some critics or the media claim was intended); what has been accomplished; successes and failures; and where we go from here. It is not my ambition to write a memoir. A few comments about my education and career in the public service will be in order, but only when they have some relevance as background to the rights-related issues that are my main focus. In that connection, there is a persistent thread that runs through my career: an interest in and involvement with language, and particularly the French language. Nor am I aiming for a historical perspective, or a linguist’s take on language practices, or a legal disquisition on theories of human rights, or yet again a technical account of Canada’s demographic situation. There are all sorts of historians, socio-linguists, and jurists who can do that sort of thing much better than I. As a result, the reader should not expect a full-scale academic treatment. What I do want to offer are the observations of one who has had the unique experience of serving both as Canada’s official languages commissioner and as chief commissioner of the Canadian Human Rights Commission, with eight years’ involvement afterwards at the international level as a member of the United Nations Human Rights Committee. I do not mean to give an anecdotal account of accomplishments and failures in those years – they are set out in some detail in my Annual Reports to Parliament on which I frequently draw – but rather a distil-

xii

Preface

lation of my assessment of language and rights issues based on more than twenty-five years in the field. Within that framework, I propose to examine how we have developed significant norms and standards in Canada regarding rights – norms and standards that reflect our unique history and character. I shall also consider the role played by the two commissions with which I was involved in reinforcing and promoting those standards. And I shall look at the interplay between international human rights norms and developments on the Canadian scene. The issues I shall discuss are not easy: they arouse passions on all sides, and always have. This is obvious in the case of language, which, like religion, is capable of tearing countries apart. It is less clear with human rights, for no one is opposed to the idea in principle, as one might be to having ‘French shoved down our throats.’ Or so we think, until matters like same-sex relations or affirmative action are promoted by lobby groups or presented as government policy. I think we need to face up to these problems, in spite of, or indeed because of, these difficulties. I shall try to be objective about them, but I also intend to be ‘opinionated,’ in the original sense of ‘holding an opinion,’ though not, I hope, in the pejorative sense. I shall also permit myself the occasional polemical comment on matters that seem, at least to me, to have a bearing on the larger issues. In a few words, this study is dedicated to the thesis that, whether or not it is possible to change beliefs or attitudes through government policy or legislation, it is perfectly possible to change behaviour in a manner that expands rights. The proof of this proposition can be found in Canada’s own achievements with language rights and human rights. Ottawa, April 2009

Acknowledgments

I should like to thank a number of people for their help and encouragement. First, there are individuals too numerous to mention, in what was then called the Department of the Secretary of State (now Canadian Heritage), with whom I worked in the late nineteen sixties and early seventies in the elaboration of various aspects of Canadian language policy and the effort to give them substance in practice. Their contribution forms much of the backdrop to what follows. Second, there are my colleagues from the Office of the Commissioner of Official Languages who offered sound advice and assistance throughout my seven-year term. Regarding the preparation of our Annual Reports to Parliament, from which many of the comments on language that I put forward in this study are drawn, I think of Marc Thérien and Charles Strong, among others, and especially of Stuart Beaty, with whom I worked particularly closely in the preparation of those reports. I am also grateful to Stephen Acker, who assisted me in the day-to-day activities of my office, and to those in our communications section, who helped unfailingly with the development of our relations with the media. Similarly, in my more than nine years of involvement with the Canadian Human Rights Commission, I was fortunate to work with a team whose efforts made my responsibilities a good deal less burdensome than they might otherwise have been. My fellow commissioners, to begin with, whatever their backgrounds and experience, consistently brought a loyal and conscientious contribution to the commission. Once again, Stuart Beaty remained an irreplaceable resource in our attempt to present our ideas to Parliament. I also think of Denise Ommanney

xiv Acknowledgments

and John Dwyer, who contributed greatly to the smooth functioning of my own office; and of Jacqueline Wolfe and Rena Richer (who came to join me from Official Languages), who between them were my administrative assistants for many years. Colleagues in our communications branch also deserve particular mention for their active part in getting our views across to the public. More recently, there are those who have been kind enough to offer their assistance with the manuscript. My thanks are owed in particular to Ramsay Cook and N.E.S. Griffiths, who provided thoughtful comments on substance and style. I am also grateful to Pearl Eliadis for her close examination of and helpful observations on the text. And I am indebted to our son, Robert, who provided me with a valuable analysis of some of the principal themes in play, as well as constructive commentary on numerous more specific issues. I should also like to express my appreciation to Virgil Duff, the executive editor of the University of Toronto Press, and Anne Laughlin, the managing editor, for their help in steering the manuscript towards completion. I am particularly indebted to Margaret Allen for meticulous and thoughtful copy-editing that has greatly improved the text. And I want to thank Douglas Hildebrand, Jenna Germaine, and Patricia Simoes for assistance with a variety of administrative questions. Finally, and above all, I am deeply grateful to my wife, Janice, who bore with me throughout the preparation of these pages. Her contribution goes far beyond her helpful advice on the manuscript, valuable as that was. Without her good humour and patience, and, as always, her support for my morale, I very much doubt that I could have carried the project through to a conclusion.

PART ONE Introduction

1 Personal File I was born in Toronto in April 1930, a singularly inauspicious year, and raised as an only child in that city during the Depression, growing into adolescence during the war years. My parents were both immigrants to Canada, in a manner of speaking, my father from England1 and my mother from Trinidad. I say ‘in a manner of speaking,’ because of course new arrivals from England or the colonies were not considered to be ‘real’ immigrants in those days. After all, like other Canadians, they were British subjects. My wife, Janice, and I were married in Toronto in 1952. In our long life together, our two children have been sources of much happiness and deep sorrow. Our son, Robert, who was born in Ottawa in 1962, has followed a successful career in the law, and is now a partner in a major firm in Montreal, happily married, with a young daughter. Cicely, our daughter, was born in Paris in 1965. In 1990, she was launching herself with promising prospects as a graduate student in Montreal, when our lives were shattered one June day. She had been knocked off her bicycle by a truck and rushed to the Royal Vic hospital; we should come at once. We were too late, however, for she never regained consciousness. Back we went to Ottawa, both of us engulfed in great gusts of grief; the worst fears of every parent made real. Something one survives, if one is lucky, but which is never far from one’s mind. 2 School, University, Graduate Studies While the child may well be father to the man, my primary and second-

2

Transforming Rights

ary school days are not, on the whole, relevant to what follows. I mention only a dislike of physics, which led me, in the lock-step educational system of those times, to turn towards languages and thus contributed to a lifelong interest in that area. My university experience, on the other hand, has a good deal to do with what follows. At the University of Toronto, I developed two passions: for a young woman named Janice Shaw, and for philosophical studies. My dearest friend, and my wife for more than fifty-five years, Janice has been the best part of my life. But this is not an autobiography, and as a result it is not the place for an extended account of our time together. Philosophy, however, is entirely relevant, for it led indirectly to the career I have pursued since that time. My years at the University of Toronto got underway essentially as a matter of chance. I had done quite well in my last year in high school, and in the then all-important Grade 13 examinations, and thus had a choice of universities and colleges, and of courses to take, at least in the Faculty of Arts. The only problem was that I had no solid ideas about where to go or what I wanted to study. Realistically, I was confined to Toronto, as I did not have the means to pay the travel expenses and residence fees involved in going elsewhere. But where in Toronto? At the time there were no York and Ryerson to cloud the mind. But where at the University of Toronto? Someone who was at Victoria College, whom I had known since childhood, told me that Trinity was a bit pretentious and University College too large and impersonal. So why not Vic? A bit heavy on the United Church, so he said, but a lapsed Anglican ought to be able to handle that. And so it came to pass. It is a mystery to me, I have to say, how it was possible to have gone to any university in 1948, in those far-off days before student loans existed, and at a time when any banker who would make a commercial loan to the likes of me would have to have taken leave of his senses. How did we do it? Or more to the point, how do today’s students apparently regard it as inevitable to run up huge debts on the way to their degree? We worked, when we could get a job, in the summer, or at Christmas for the Post Office, and for a few days here and there during the year. Many of us lived at home, and we had no cars or expensive computers. Even so, and even given galloping inflation and a much more comfortable lifestyle, one can only wonder whether some form of Parkinson’s Law is not at work, with students’ indebtedness expanding to meet the subsidies and loans available to them. Were there more jobs to be had? Perhaps so. Were young people

Introduction

3

more willing to take on less agreeable ones? Who can say? Certainly I had more than I care to count, most of them unpleasant, one way or another. Among the earlier and better ones, starting at age thirteen or so, I worked as a paper boy for the Toronto Star and the Globe and Mail, and was the ‘proprietor’ of a Globe paper box, that wonderful invention, which required very little attention provided you were prepared to put up with a depressing rate of pilferage. Later on, I was employed as a filing clerk, pushing about out-of-date bits of paper for an insurance company; a waiter at the snack bar on an excursion boat on Lake Ontario; a hopelessly inexperienced fishing guide on Manitoulin Island; a labourer – in one job at a lumber mill in Thessalon, Ontario; in another joining up tattered threads in a knitting mill in Toronto; in yet another pushing about mushy newsprint in a paper-making plant. I was a rod-and-chainman for Ontario Hydro; a night watchman; a city labourer, putting tar on the roofs of buildings at the Toronto Exhibition; and, strangest of all, a prospector’s helper in northern Quebec. None of these, I might add, contributed much to my sense of the dignity of labour; and all encouraged me mightily to carry on with my studies. The university in those far-off days was a wondrous intellectual cornucopia for a young man with little experience of that side of life. But early days in this setting were also very close to William James’s ‘blooming, buzzing confusion’; and one must, after all, choose something or other to study. My choice, as it turned out, was not a bad one: Social and Philosophical Studies, as the university calendar called it. Among other advantages, it offered the intriguing prospect of avoiding everything I had ever studied in high school – and so it was that I ended up in my first year with courses in philosophy, psychology, economics, political science, and anthropology, for me as strange a brew as one might imagine. Philosophy quickly became my major interest. I discovered that, although I had never been particularly successful with maths, I was quite competent at logic. I had a first-class professor, one David Savan, a young man then, who later became a mainstay of the Philosophy Department, and I enjoyed the intellectual rigour of it. I was also bitten by the metaphysics bug and fascinated by the ebb and flow of grand ideas about the nature of things (as I conceived them then) – hitherto very remote from my consciousness. Thus I went on to graduate in Honours Philosophy. At that time, of course, there was virtually no choice about what one studied. The entire curriculum, more than two thousand years of philosophical thought, from the Presocratics to the British analytical

4

Transforming Rights

movement, had all been laid down in heaven, or at least by whatever academic committee decided such things. Today, what we are now pleased to call ‘educators’ would have nothing to do with anything so rigid. They would see it as destroying individuality and creativity. Perhaps there is something in that idea; personally, I doubt it. I am more inclined to see it as a source of chaos in our schools and universities. In any event, the discipline to which I was subjected had the substantial advantage of providing solid preparation for graduate school and the fearsome doctoral preliminary examinations that were then the rule – a week-long trial by fire encompassing all philosophical disciplines – and that were a necessary step on the way to one’s dissertation and, God willing, the PhD degree. Also useful was the modest competence I had achieved in school in French and German, which in those days were requirements for the degree. A final word about undergraduate years: the presence of the veterans. In my early days, they were there at the U of T in their thousands. They studied hard, some of them partied harder, and their influence on a young fellow of eighteen, fresh out of school, was palpable. I have always counted myself fortunate to have shared my university time with them, though the sensation was perhaps mixed with a touch of envy that I had not also been along during the exciting years that preceded their time on the Toronto campus. Graduation from the U of T in 1952 was followed by an interlude in Paris, financed largely by a bursary from the French government. Whatever the vicissitudes of my subsequent relationship with France and la Francophonie, I have always been grateful to the French authorities for their generosity. For here began my life-long involvement with the French language, both in the context of my public service career and in my personal life, where it continues to this day By that time, at the ripe old ages of twenty-one and twenty-two, Janice and I were married. She was working for a Canadian group of architects while I went off most days to provide a native speaker’s English injection to the students at a lycée in St-Maur-des-Fossés, then a working-class suburb of Paris. It has never been clear to me how much English got through to my charges, but I certainly learned a good deal of French, not to speak of common-room gossip and an introduction to French manners and morals. Along with a smattering of metaphysics and Existentialist thought at the Sorbonne (the one in the Latin Quarter – there was only one in those days), where I was a student at times when I was not required to be at the lycée.

Introduction

5

A brief stay in Germany (in Hamelin, the Pied Piper town) followed in the summer of 1953. The purpose was to help bring my German up to scratch for the examinations I have just referred to. But it also gave us a chance to see that unhappy land, still reeling from the after-effects of the war, live through the Berlin uprising. It was a grim augury of thirtyfive more years of totalitarian rule in the East that lay ahead. It was then time to settle down in earnest to the job of becoming an academic. We returned to North America and took up residence in Ann Arbor, Michigan. But not before we ran into trouble trying to get visas from the American authorities at the consulate in Paris. Janice came under the Jamaican quota, we were told (the reasoning: she was born there, even though she had become a Canadian citizen), which meant she was last in an endless line of applicants. Of course, as a Canadian born and bred, I could enter the United States as a permanent resident, and, with the peculiar logic these people then employed, she could accompany me. But I might then be subject to the American draft, as the Korean War was still a part of life. That, I said, was not quite what I had in mind. What to do? Some sympathetic soul suggested we return to Toronto, and approach the consulate there, where they would surely have a better idea about how to deal with an aspiring Canadian student with a ‘Jamaican’ wife. And so they did. The answer they found was that both of us should go as students, for which we would not require visas. And then, if Janice had to work, there would be no problem as long as the principal reason for her being there was graduate studies. Much later on, this turned out to be of capital importance, for it was Janice who in due course became the academic, at Carleton University in Ottawa. First a professor of Spanish, and subsequently a distinguished linguist, she eventually turned to an equally prominent administrative career, becoming associate dean and later dean of the Faculty of Arts. And it was I who moved on to other things. But I am getting ahead of myself. The philosophy faculty of the University of Michigan was particularly strong in moral philosophy, on which I thought at the time I would concentrate my graduate work. As it turned out, this was not to be. Instead, I became caught up with a language-related theme, eventually producing a doctoral thesis entitled ‘The Influence of Language on Perception and Thought,’ which examines the proposition (sometimes called the Whorf thesis2 or ethnolinguistic thesis) that the language a person speaks shapes, or even determines, the way in which he sees and thinks about the world around him.

6

Transforming Rights

At the same time, however, scarred as I was by the inanities of the PhD process, I was becoming increasingly unsure about an academic career. I had accepted an exceedingly attractive three-year post as a junior fellow in the Society of Fellows at Harvard, which would have put me in an excellent position for the future in the professorial stakes at most universities. But that was precisely the problem: did I want to teach Descartes to undergraduates for the rest of my life? Had I not in truth become an apostate to such a point that I would never really enjoy the game? Bertrand Russell’s biographer reports that Russell came to believe that philosophy, ‘far from investigating eternal, Platonic forms, was simply an analysis of language. In this view, there are no “eternal things” for a philosopher to seek refuge in.’ I realize in retrospect that I was evidently not the only one suffering from these misgivings. One commentator reports that ‘the philosophical heavens opened a bit’ for the Canadian-born philosopher Ted Honderich when he read in A.J. Ayer’s Language, Truth and Logic that ‘all this stuff I had had pumped down my throat should be cast into the flames.’3 I think also of Karl Popper’s comment that ‘Wittgenstein said that there were no philosophical problems, only linguistic puzzles. This has been the predominant attitude … throughout my lifetime … there are no philosophers left, real philosophers who grapple with real problems. There are only professors who worry about words.’4 I would not wish to give the impression of seeking to compare myself with my elders and betters. Nevertheless, similar musings on my part led inevitably to the end of an affair. If metaphysics was meaningless, and only science was founded in realities, if philosophy was essentially the analysis of language, however intriguing that might be, was it not essentially inconsequential? And, if so, why go on with it? Or so at least I wondered in the spring of 1956, as we tried to decide what to do with our lives. The truth is that I really had no idea what to do. But I had obviously had serious enough doubts the previous year to take out an insurance policy in the form of sitting for the annual External Affairs competition. Eventually being offered a job put the cat among the pigeons. Not for the money, I may say, for the salary offer was not far above $3,000, or less than Harvard was proposing to pay me for reflecting on eternal verities. Janice and I debated and re-debated the pros and cons long into the night. In the end, the bureaucratic complexities of the American consular regulations once again helped as much as anything to decide the issue.

Introduction

7

We had sent all our worldly goods to Cambridge, Massachusetts, preparatory to settling down at Harvard. But we ourselves had to wait patiently in Toronto – in the anteroom of God’s country, so to speak – until we received our visas (this time, there was no question of the draft, as the Korean War was long over), which could only be issued outside the United States. The External Affairs offer was there; the visas were not. I was twenty-six years of age and I had never done anything but go to school. It was time to move on. And so the matter was decided: we were off to Ottawa. I cannot pretend that I have never had second thoughts about that decision, on a mild autumn afternoon, say, when one imagines the campus milieu at its most inviting. But on the whole it is not one that I regret. 3 A Public Service Career a) The Department of External Affairs The Department of External Affairs that I entered in the summer of 1956 was epitomized by the more usual way of referring to it. We always said, simply, ‘the Department,’ as if we were talking about the Household Guards or another institution of such ancient and distinguished lineage that it hardly needed more precision. In many ways, it had the air of a social club, with its distinguished older members (now, alas, all gone), its rising stars, and its beginners, including our own group of foreign service officers, grade 1. Much of the aura, I should probably add, was lost on me, as I had not known enough about the institution before I got there to be as impressed as I doubtless ought to have been. Still, it was good to emerge from the darkest recesses of graduate school to something resembling the real world. Sometimes I wondered, however, in my first job in the European Division, as I dealt with such arcane issues as whether the Dutch queen’s spiritual adviser had any influence on that country’s foreign policy, and the implications for the North Atlantic Treaty Organization (NATO) of the presence of communists in the Icelandic government. I also began what was later to prove a lengthy love-hate relationship with the disarmament dossier, which blossomed in the sixties. Initially, it affected our lives in more ways than one. We were to have gone to Poland in 1957, for my first posting, following the standard year or so in Ottawa. But in the end, the powers that be said no. The ‘exigencies of the service’ (people actually spoke that way) were such that my disar-

8

Transforming Rights

mament duties had a higher priority, and a great new multilateral conference was underway in London. The usual reasoning in the Foreign Service for doing whatever had been decided. I grumped of course – was there no one who knew something about disarmament besides me? But, also as usual, it did very little good. At the same time, it got us to London for several months, to that same conference, to replace a colleague who had had to return to our mission in New York. This was more than a bit discombobulating for Janice, who negotiated a leave of absence from her job to be able to join me, but it was a change from Ottawa, and in a city that few people would complain about. However, it was destined not to last. The Russians and the Americans agreed about nothing, and when it was revealed that Mr Dulles5 was said to be on his way to check up on what was going on we knew it was the beginning of the end. And so it was back to Ottawa for the two of us. As a result, the question of a posting was back on the table – for the following year. Moscow was being offered, so I was moving up a notch, so to say. But language once again entered the picture: I insisted on Russian lessons, for I was not going to go to the Soviet Union without a reasonable command of the language. That was agreed, and I began evening lessons that autumn with financial support from the Department. But I needed an immersion session, say six months or so, and the question was where. There was a new military ‘tri-service’ school in Ottawa, to which a foreign service officer6 had been sent the previous year. But he and the Department were not altogether happy about it. Other possibilities were an American military-diplomatic school in Monterey, California, and two institutions in Britain, one in London and one attached to Cambridge University. I was not attracted by California, and I thought that, if I tried for London, our Personnel Division would think Janice and I were more interested in the high life than language lessons. And so we opted for Cambridge, for which we left in the spring of 1958. My fellow students (only a handful) were military officers who were being prepared for jobs monitoring Soviet radio communications and other ‘listening’ operations. This meant a large dose of military vocabulary, which was not high on my list of priorities as a junior diplomat getting ready for a posting to Moscow. Fortunately, the school authorities were flexible, and I was allowed to go my own way, one on one with a member of the staff, reading Pravda and political texts, and working long days and evenings on grammar and vocabulary. With some success, if I say so myself, by the time we left for Moscow in the autumn.

Introduction

9

This is not the place to recount at any length our impressions of the strange, artificial life of diplomats in that city at the height of the Cold War. Life was comfortable enough physically, I have to say, as we brought in most of our food supplies and liquid refreshment from diplomatic suppliers in Copenhagen and Helsinki or cadged the odd fresh lettuce from our American friends, who often had too many for their own use in the PX. They were also an excellent source of films, which we watched with Peter and Naomi Roberts on a rickety screen in the backyard of the embassy, to the amusement – and wonderment – of the inhabitants of the neighbouring flats. But it was hardly a bowl of cherries. Janice and I lived in no less than three flats in the first few months of our posting. Although the first was no more than a few months old, it was literally falling apart, and we and the other diplomatic families it housed were evacuated hurriedly, the Chinese first, I might add, as befitted the close friends of the Soviet Union they were (or appeared to be) in those days. The second was a temporary affair that we occupied for a couple of months, so as to have a roof over our heads, especially during the Christmas period. My sharpest memory of it was a thick coating of ice on the inside of the windows in the dining room one freezing December night. And finally we moved again, to the apartment we were supposed to occupy for the rest of our time: spacious enough, although jerry-built like all the rest. Only to find, in the end that it suited the administration (and us, be it said) to move us a fourth time, to a flat in the embassy compound, where we did indeed spend our remaining time in Moscow. In retrospect, all this was of little importance when compared with our isolation from the man and woman on the street. Not for want of interest on their part, I might say, for they were easy to meet if you spoke Russian, and they were fascinated by all things Western. But in all honesty we had to tell them who we were, and a NATO diplomat was usually enough to scare them off or get them – and us – into a mess with the authorities. The potential for blackmail by the Soviet intelligence services (KGB) was very real and ever-present. And while travel outside Moscow was possible, it was not easy, for there were many places one was not allowed to visit – period – and others that were ‘temporarily’ out of bounds for unexplained reasons. Added to which was an ambassador who approved of travel in theory but in practice did not want ‘his boys’ to stray too far from the embassy where they were looking after the shop. The vast stretch of land that was then the Soviet Union, and espe-

10

Transforming Rights

cially Khrushchev’s Soviet Union in the nineteen fifties, defies encapsulated analysis. I have to say, however, that I had arrived with a great deal of sympathy for a people who had suffered so grievously in the war. As a result, whatever I thought of their unacceptable record on human rights and freedoms, I was willing to explain away some of their more obvious material failures. Two years of first-hand experience were quite enough to turn those feelings into an abiding scepticism about what a command economy could achieve, and even deeper misgivings about what the ‘dictatorship of the proletariat’ had done to fundamental rights. One of my most persistent and sorry memories was the presence of Canadians who had joined the ‘return to the homeland’ campaign in the mid-nineteen fifties, at the time of Khrushchev’s attack on Stalin and the temporary thaw with the West and slight loosening of the state’s iron grip on the population. Many of these were Canadians of Ukrainian origin who had been taken in by propaganda handed out by Soviet Embassy officials in Canada, and of course the Soviet press, to the effect that the Soviet Union offered untold attractions when compared with the capitalist West. And some of them were accompanied by children who knew very little more about the Soviet Union than other Canadian youngsters – except for the lies that had been served up by those same Soviet officials. For many, it was the grimmest surprise of their lives to discover that what they had been told was fantasy, and that they were destined to be sent to work in circumstances so harsh that they could never have imagined them in Winnipeg or wherever had been home in Canada. And to learn, on top of it, that they had little hope of escaping the trap into which they had wandered unawares, however much the Canadian authorities protested on their behalf. To add insult to injury, they were often deemed to have lost their Canadian citizenship, because of actions taken on arrival, or even at the Soviet Embassy in Ottawa before their departure, that amounted to accepting Soviet citizenship, and thereby renouncing Canadian nationality by a ‘voluntary and formal act.’ No amount of objections from our end could convince the authorities at home of the stupidity and injustice of these arguments – that their actions had in no genuine sense been ‘voluntary’ – and it was to cost them dearly for many years. As I was the most junior officer in the embassy, consular work fell to me, and this meant that it was I in the first instance (often along with Peter Roberts) who saw these families, especially the younger mem-

Introduction

11

bers, when they came to the embassy. Their purpose was to ask about the possibility of getting out. We had to tell them that the chances were not good, and that they could not really envisage living in the embassy, in a form of asylum, on a semi-permanent basis. So back out on to the street they went, often into the hands of the Soviet police, and a fragile future at best in wherever it was they had to return to. Those who were stubborn and strong enough eventually did get out, with assistance from the Canadian authorities, but it was a long and very difficult story for them and an unhappy component of our Moscow experience. Out of the blue, disarmament pushed itself back into our life. Someone had the idea that it might be useful to post an officer to the Ten Nation Disarmament Conference (which was about to begin in Geneva) who knew Russian and was familiar with the disarmament scene. As a result, our Moscow posting came to an end on very short notice. Not that we had anything to complain about, especially Janice, who had never liked the place, as there simply was not enough for an active woman – wife – to do in those days of secluded diplomatic existence. We put the Soviet Union behind us and headed off in the spring of 1960 for a new life, at what was supposed this time to turn into the world’s longest disarmament conference. Or so we thought, until the Russians shot down the American U2 reconnaissance (spy) aircraft on May Day, 1960. Impeccable timing had persuaded the United States to fly just one more mission on that holiest of Soviet holidays, and the subsequent U.S.-Soviet dust-up brought the conference to a swift and inelegant end. And along with it went our posting to Geneva. And so we returned to Ottawa, where I spent three more years in the disarmament game. There were also important developments in our personal lives, as our son, Robert, was born in September 1962. They were exciting, and, I have to say, occasionally amusing times, as the Diefenbaker government struggled unsuccessfully to cope with nuclear defence problems. They were the high days of the ‘Voice of Women,’ long since forgotten but then a powerful lobby before which governments quaked, and an ardent opponent of nuclear arms and nuclear testing in any form. It was also a time of Third World engagement at the United Nations in favour of nuclear disarmament and ‘no first use’ of nuclear weapons. An awkward situation for Canada, as a ‘dove’ by vocation but also a member of NATO, which was committed to use precisely those weapons if it ever came to the crunch. And so we lived with a merry-go-round of debate between our own

12

Transforming Rights

minister (Howard Green), fiercely pro-disarmament and opposed to nuclear tests, and the minister of national defence (Douglas Harkness), whom some thought a prisoner of the Pentagon on these issues. And of course, Prime Minister Diefenbaker, whose decisions at times seemed to have been determined by whomever had been last to see the great man. Meanwhile, on the lower decks, we kept our powder dry and drafted two or three explanations of Canada’s vote for use at the U.N. General Assembly in New York, depending on which verdict came down from on high. At the time, my principal boss (I had quite a few) was General E.L.M. Burns, universally known as ‘Tommy,’ a Second World War figure, who subsequently made his mark as the first commander of the U.N. Emergency Force in the Middle East, and was later appointed ambassador and special adviser on disarmament by the Diefenbaker government. I followed him about as a sort of subaltern, in Ottawa, Washington, New York, and Geneva, wherever action on the disarmament front was to be found, as we tried to put the abandoned negotiations back on the rails. Finally, all of this came to an end in the spring of 1963, as the Conservatives went down to defeat, and along with them Howard Green, one of the finest gentlemen I have had the pleasure to work for in government. At the same time, I took my leave of disarmament, this time more or less for good. Summer brought one last event in the disarmament arena: Kennedy and Khrushchev triumphed with the initial Test Ban Treaty, the first significant development in the East-West confrontation in this field for many years. I used to say that I wondered whether there was any cause-effect relation with my departure from the disarmament scene. It was the only time in my years as a young foreign service officer that I was given something of a say about my career path, and once again my choice involved me with France and the French language. The Department was receptive, and a four-year posting in Paris was considered a just reward for slogging in the disarmament trenches. From the perspective of this study, it is ironically amusing to think that, on our arrival in the summer of 1963, English was still very largely the language of work in the Paris embassy, and I had the devil’s own time getting the ambassador (Pierre Dupuy) to speak to me in French. Amusing, but also sadly illustrative of the situation in which the country found itself, and from which Prime Minister Pearson and his colleagues were trying belatedly to extricate us. The Royal Commission on Bilingualism and Biculturalism, whose establishment was one of the

Introduction

13

first acts of the Pearson government, was a helpful start, but there was still a very long story to unfold. Although I dealt with French defence policy and related issues in the embassy breakdown of duties (my background following me around), none of us could escape the gathering storm around the Quebec issue. And Prime Minister Pearson shortly had to face President de Gaulle on his home ground. The General, one has to suppose, had been reasonably sincere in 1960 (though there are those who would argue that he was never sincere about anything) when he visited Canada and adopted a more or less federalist line. But the winds of change were already beginning to blow by the time Pearson arrived in Paris for an official visit towards the end of 1963. Although the embassy pundits concluded that the visit had gone well, a more objective observer might have discerned dark clouds forming. The presentation of the new ambassador’s letters of credence to the French president, in early 1964, marked a disquieting turn in CanadaFrance relations. Among the few cognoscenti who take an interest in such matters, it has long been a subject of debate whether Jules Léger’s opening remarks to General de Gaulle, which have been interpreted as suggesting that Canada could survive with or without close relations with France, were appropriate in a formal presentation to a head of state. They certainly were punchier than is customary on such occasions, but it is quite another matter to suggest that they may really have made a substantial contribution to de Gaulle’s displeasure with Ottawa or were used as an excuse after the event. The truth will probably never be known. Even among those who were present on that occasion – of whom I was one – there has never been any unanimity. For what it is worth, I myself thought that there was no evident animosity on the part of the General at the time, or indeed any noteworthy reaction at all. I can only conclude that there were other more serious matters that turned him against Canada. I have long been convinced that among them was the failure in 1965 of a prospective sale of uranium to France. Canada of course had been a major player, for its size, in the wartime development of atomic weapons, in collaboration with the Americans and British, and subsequently had continued to supply them with uranium for weapons purposes. For some years, however, the nuclear issue had become increasingly controversial in Canada. There were those in the Pearson government, including Prime Minister Pearson himself and Paul Martin, the foreign minister, who were uneasy at the idea of further sales

14

Transforming Rights

of Canadian uranium without strict controls on the use to which it could be put. Such was the political climate in the summer of 1965, when a delegation headed by Mitchell Sharp (then minister of trade and commerce) arrived in Paris to negotiate a sale of uranium to the French government. Language again played its part for me, as the negotiations were to take place largely in French, and I was sent along to help with the interpreting and note taking. The French position was perfectly clear: they should enjoy the same conditions as had the British and Americans – that is, no end-use controls on uranium they might purchase from Canada. They took it for granted that, if we were not prepared to sell on those conditions, it would be because the Americans were twisting our arm, on account of what they perceived (not without reason) as the well-known animus of the United States against France. It was simply beyond their capacity to conceive that the Canadian government would insist on such a policy for its own Boy Scout reasons. In the circumstances, and after the French minister had adjourned the meeting to check at the highest level, the negotiations were terminated. I personally have always believed that this led the General to write off Canada as an American puppet and to throw in his lot more forcefully with nationalist or separatist Quebec elements than he might otherwise have done. To be sure, he would in any case have had considerable sympathy for ‘les Français d’Amérique’7 – French grandeur at work. But he would never have sacrificed France’s national interests for theirs, any more than the French authorities would do so now or in future. At the same time, the climate for a nationalist move in the area of foreign policy was blooming at home as well: Paul Gérin-Lajoie, then the minister of education of Quebec, delivered a speech on provincial powers in 1965 in which he asserted the provinces’ (and particularly la province’s) right to operate abroad in areas where they had jurisdiction within Canada. This is evidently an arcane subject that was not likely to keep many people awake at night, but it is one that is of great significance for federal states, where the central administration invariably retains authority over foreign policy and where a challenge to that regime can be taken as a sure sign of more ambitious projects in the direction of independence. As Canada had cause to know, moreover, since we pursued the same kind of manoeuvring vis-à-vis Britain in the years after the First World War. Such was the atmosphere when we returned to Canada in the sum-

Introduction

15

mer of 1967. Centennial Year was a happy interval for many Canadians. As it mostly was for the Yaldens, now a family of four, with our daughter, Cicely, having been born in Paris two years earlier, and Janice engaged in the early stages of her academic career. Meanwhile, there was a bleak future around the corner in federal relations with Quebec and France. At the time, there was a split in External Affairs between those who believed – beginning with the minister – that while the French wanted closer relations with Quebec, perhaps closer than the feds would wish, their intentions went no further. And on the other hand, there were those who were of the view (myself included) that the General was out for bigger game. It was in this climate of foreboding – not too strong a word, I think – that de Gaulle disembarked from a French cruiser at Quebec City on his way to the Centennial celebrations. The federal authorities would have greatly preferred that he begin his visit in Ottawa, like most other distinguished visitors that year, but there were a few precedents for other starting points, and in the event there was little that could be done about it, in the face of Quebec and French insistence. So began his quasi-regal progress along le chemin du roi to Montreal, observing as he went (to the intense irritation of Mr Pearson) that his welcome from the crowds reminded him of ‘the Liberation.’ There was of course much more to come: ‘Vive le Québec libre’ from the City Hall balcony in Montreal; the rejoinder from the Canadian authorities that such remarks were ‘unacceptable’; and the hasty departure of de Gaulle and his suite, without having set foot in Ottawa. But apparently, if one can believe those who are said to know, with his speech all ready for his visit to the capital, to be delivered in amicable terms on relations with Canada that reflected none of the goings-on in Quebec. The General followed with a press conference that autumn in which he allowed as how Canada as we knew it was not destined to last and Quebec could be expected to move inevitably towards its freedom. It was a heady atmosphere in which to take up my new job as hired gun (more correctly, ‘special adviser’) to the deputy minister,8 with responsibilities for federal-provincial affairs and relations with Quebec and la Francophonie. And remarkable years they were for me. The first order of business was to draft a White Paper, setting out the federal position on foreign affairs and federal-provincial relations,9 which was to be presented to the first ministers’ meeting on the constitution in early 1968. This was followed by alarums and excursions on all fronts, from trivial matters

16

Transforming Rights

like the positioning of the Canadian versus provincial flags at Francophonie conferences, or efforts to assert Quebec’s presence at those meetings, to less savoury attempts at interference in Canadian affairs, as we tried to counter French and Quebec actions in various corners of the world. Perhaps I am not altogether free of bias on the subject, but on the whole I think we won more than we lost in those encounters. We were nevertheless obliged at times – largely as a result of French actions – to accept arrangements in the context of la Francophonie that were less than satisfactory. And there were of course other unfortunate concessions that were put together a couple of decades later by Prime Minister Mulroney and Lucien Bouchard. At all events, although skirmishes continued for many years, the election of Pierre Trudeau turned the action in the direction of the prime minister and his entourage, and away from External Affairs, its embattled under-secretary, and foot soldiers like myself. I think it can fairly be said that, during those years, Quebec never made any substantial gains internationally, except with France and a few of its client states. Ironically, it was the federal government that started the ball rolling by asking more than the French protocol authorities wanted to offer by way of ‘diplomatic privileges’ to the fledgling Quebec Délégation Générale in Paris in the early sixties. Subsequently, the Quebec delegation had more of the symbolic cachet than their authorities could ever have dreamed of initially – much to the irritation of the federal establishment. And I can attest that it was irritating at the time, though in fact of little import outside France and Quebec. I do not think this is likely to change, whatever the outcome of present and future debates about Canada’s destiny, and whatever apologists for the separatist school of thought may believe. In the real world, other states’ interests in their relations with Canada are not likely to take second place to Quebec’s ambitions. b) The Secretary of State’s Department and the Department of Communications I left External Affairs in early 1969, at the request of Jules Léger, the under-secretary of state, who had been my ambassador in our Paris days. My then boss, Marcel Cadieux, was none too pleased at having me ‘stolen away,’ as he saw it, by his old friend Léger, and when I asked whether I could be sent on a temporary secondment (my preference), the answer was a firm negative. What would happen, he said, if everyone who wanted to leave the Department for a few years and receive a promotion into the bargain (as I was doing), could then return to some

Introduction

17

agreeable posting, while other officers had been working away in the trenches like good soldiers? I forbore from saying it was not quite like that, but in any event there was no convincing him: I could leave if I wished, but then I must leave – no deals. I consulted Gordon Robertson, then the clerk of the Privy Council, and the ultimate mandarin, whom I knew from my work on federalprovincial affairs and who was down the hall in the East Block. Gordon said I should not worry, as it really made no difference. If, in a few years, the Department was prepared to have me back, I could return without difficulty, even if I had left ‘definitively.’ On the other hand, if they did not want me back then they would fix it so my return would be very difficult, whatever secondment arrangements I had made. And furthermore, Cadieux would not be around. All this seemed like sensible advice, so off I went. I have sometimes put it to myself – why me? In the first place, I suppose because my French was better than that of most Anglophones. Various people have asked me why that should be so; and others, who know something of my career, may add that of course I had had a better chance than others – I was in Paris as a student and had had a fouryear posting there at our embassy. That is true; but it is also true that I have known others who spent periods of their lives surrounded by French and never learned much themselves. And it was certainly not some special talent for languages. No, I think the answer lies more in motivation and persistence: I wanted to learn French, and I persisted in doing so. Of course, during my years at the embassy, I was fortunate to have colleagues who were patient enough to listen; but I also pressed on with others who were less so, until, gradually, using French became less of a problem. And all this was unquestionably significant in the place I subsequently occupied in the language game in Ottawa. Beyond that, I had worked with Léger in Paris; we always got along well; and I always spoke French to him. This may have made me a natural choice for him when it came to finding a bilingual Anglo, which that kind of job seemed to entail. The same might be said of Gérard Pelletier, by then appointed secretary of state, whom I first came to know in the run-up to the 1968 Liberal leadership contest. Pelletier was obviously supporting Trudeau and trying to avoid getting involved with Paul Martin, Senior, whose parliamentary secretary he then was. Again, we always spoke French to one another, and it was obvious that my heart was in the right place on language policy – and on leadership candidates, for that matter. Léger himself had been persuaded by Pierre Trudeau and Gérard

18

Transforming Rights

Pelletier to return to Ottawa from his post as ambassador to take over the job as under-secretary of state10 in a revitalized Secretary of State’s Department with an extended mandate in the cultural and language fields. As assistant deputy minister, I was to have special responsibilities for putting together the broad series of measures that were to constitute the government’s official languages program. These duties kept me more than occupied for the next four years, and eventually played a role in my appointment as official languages commissioner. The Royal Commission had set out a massive task for the federal government in a series of reports that had taken them some seven years to complete. The Trudeau government proceeded, as one might expect, with straight-line logic, addressing itself to each volume as it came out, while committees of officials, some under my chairmanship, laboured to keep the machine moving smoothly. And with substantial results, for the government accepted by far the majority of the commission’s recommendations, and on the whole was able to implement those that were within its jurisdiction. First, there was the Official Languages Act, adopted in 1969. There followed wearying attempts to persuade the provinces (eventually with some success) that bilingualism in education was a worthwhile cause. Subsequently, a series of measures were undertaken with respect to the courts, the National Capital, and the world of work, to what came to be known as ‘multiculturalism,’ and to a wide swath of Canadian life ranging from radio and television to bilingual labelling. Finally, the government undertook the patriation of the Canadian Constitution (the then British North America Act) and its amendment to include provisions for the protection of language rights and human rights. We are still living with this experiment, and it will be a major part of what follows to assess the results. Meanwhile, I had moved on to four fascinating years as deputy minister of the Department of Communications, to which I was appointed in the spring of 1973. It was a highly technical bag of tricks for a highly untechnical person, perhaps the more interesting as a result. And at the same time, it was one that carried on my earlier encounters with the provinces. As we battled over who should have control over cable television, to take only one example, I never failed to be amazed at the capacity of our provincial counterparts to support each other in the most outrageous causes, provided that the favour was reciprocated the next time one was needed. Whether this was good for the country, or more likely to exacerbate already dubious tendencies in the direction of regionalism (not to say indépendantisme), is less evident. For what it was

Introduction

19

worth, I also gained a closer insight into the deputy minister community, and this at least served the purpose of enabling me to remind them in later years that I had once been on their side, and could understand as a result the reaction of senior government officials when confronted with parliamentary watchdogs of the sort I had become. From then on until the end of my time in the public service, and indeed in the eight years I spent afterwards at the United Nations, my engagement with language reform entwined itself with the human rights dossier. First, with Prime Minister Trudeau’s appointment of me as official languages commissioner; and then with his concurrence to my posting as ambassador to Belgium, where, God knows, language problems were always on the boil. And following that, Prime Minister Mulroney’s decision to settle on me as chief commissioner of the Canadian Human Rights Commission, an appointment that was clearly influenced by my earlier experience as language commissioner. And where, incidentally, I became the first – informal – chairman of the coordinating committee of national human rights institutions, essentially because I was the only one in the then small group working to set up the committee – without interpretation – who could speak English and French fluently. And finally, because of my time as chief commissioner, the government’s agreement to put my name forward as a candidate for election to the U.N. Human Rights Committee, which seemed to the ministers involved to fit neatly with my previous responsibilities. c) Official Languages Commissioner Nineteen seventy-seven, when I was appointed to the job of official languages commissioner, was a vintage year for language in Canada by any standards. It is hard to credit thirty years later, but in 1976 a major linguistic-political crisis had arisen over the use of French by air traffic controllers in Quebec, and in 1977 it was still very much on the boil. Their association, ‘les Gens de l’Air,’ was adamant that this was a fundamental right. The English-speaking controllers claimed equally vociferously that English was the only safe language to use. Otherwise respectable English-language editorialists – one hopes they feel ashamed when they remember it – insisted that sensible people knew very well that the ‘universal language of air traffic control’ was English. As language commissioner, I even travelled to Paris, to witness for myself the controllers at work in Orly airport, only to learn that they in fact spoke a strange mixture, largely composed of technical jargon that did not make much sense

20

Transforming Rights

to the layman in either language. Eventually, a compromise was worked out, but meanwhile the voters of Quebec had elected a Parti Québécois government, which subsequently went on to make restrictive language legislation its first order of business. And it was precisely at that time that I was appointed official languages commissioner. The commissioner’s job was a last-minute decision by the government. Prime Minister Trudeau had originally had the chairmanship of the Canadian Radio-television and Telecommunications Commission (CRTC)11 in mind for me, but doubts were expressed in cabinet by one or two ministers about whether it was suitable to become the head of the regulatory body in the very area – telecommunications – where I had been on the government side as deputy minister. In retrospect, I have to say this seems to me a rather flimsy objection. Perhaps Trudeau felt the same way, for he said it would go forward the following week unless someone had a better idea. The ‘better idea’ produced over the weekend was the position of languages commissioner. After all, the job needed filling, and Yalden knew about language problems from his days in the Secretary of State’s Department – there couldn’t be a better fit. Having made the decision, and secured my consent (in fact, I was rather pleased at the prospect of a change from another several years in the telecommunications business), the powers that be concluded, as they often do with such matters, that it was urgent to get on with it. As a result, the government needed opposition agreement to waive the usual forty-eight-hour delay before tabling a motion in the House to approve the appointment.12 The opposition party leaders were duly consulted, but someone forgot one Leonard Jones, a New Brunswick MP who had been removed from the Conservative caucus for his anti-bilingualism stand, and who refused unanimous consent. And so, for several days, I was appointed but not appointed, until Parliament was recalled to settle a Post Office strike, and my appointment was put through when they were finished with more important business. A droll bit of historical trivia, but one that unnerved me somewhat at the time. The very first media questions I was faced with were obvious: what did I think of Bill 101, the new language law that had just been adopted in Quebec? What should the federal government do about it? Well, I said, it seemed to me that no one, least of all me, liked restrictive language legislation. I had even heard it said that Premier Lévesque himself found it ‘humiliating.’ But I also thought that les Anglais had not been very obliging of their own accord about giving French an appropriate status, and perhaps in the circumstances there was little choice

Introduction

21

but to go the legislative route. This produced sympathetic noises about me from Lévesque. It also resulted in an acerbic letter from Premier Hatfield of New Brunswick (to which I replied in kind), and mixed reviews from the press. For my part, I have never had cause to change that initial opinion. The incident also launched me into the unfamiliar position, for a sometime diplomat and deputy minister, of dealing with the press on an almost daily basis. I had replaced Keith Spicer, as colourful a personality as had been seen in Ottawa for quite some time, and I was determined not to come across as a grey bureaucrat by comparison. As it turned out, I quite enjoyed the hurly-burly of trying to deal with journalists, and never regretted abandoning the anonymity of officialdom. The ultimate worth of Canada’s various language ombudsmanwatchdogs is not easy to assess. But in the highly charged emotional environment that language problems presented at the time, I believe it was useful to have someone other than the political classes (for whom it was poison) who could speak out on the subject and report progress as objectively as he could. In any event, the reaction to language reform in Parliament and the press over my time as commissioner was on the whole more positive than I would have expected, and I hope I may have played a part in making it so. d) Canadian Ambassador to Belgium and Luxemburg Seven years, however, were enough. When Prime Minister Trudeau enquired what I thought about being reappointed, it was not a difficult question to answer. A return to External Affairs seemed a reasonable suggestion to make to the PM in the circumstances, and a posting to Belgium appealed both to me and to Janice, who could continue with her own interests, as she had academic connections there. So was it agreed with Mr Trudeau, and I was appointed ambassador to Belgium and Luxembourg in September of 1984. A posting that provided a better illustration than I needed of how not to run a two-language regime, and an experience that leaves me gasping each time I hear one of our self-appointed experts suggest that we should look for solutions to Canada’s language problems in so-called territorial arrangements like those in force in Belgium. One wonders whether Prime Minister Stephen Harper’s earlier observations on the matter, and the derisive reaction they produced, will lead him to stay away from this hornets’ nest in future.

22

Transforming Rights

e) Human Rights Commissioner Pleasant as it was, Belgium was not to last. During the summer of 1987, I began to receive enquiries from the Privy Council Office as to whether I might be interested in something else. As long as they were promoting jobs like the head of CSIS,13 I knew they could not be very serious. But when a call came about the possibility that I might consider becoming head of either the Canadian Human Rights Commission or the about-to-be-created Immigration and Refugee Appeal Board, I knew they were; and I knew that it was time to think about moving on. There were also possibilities outside of government service, notably an attractive offer to become the principal of Glendon College in Toronto. But when I was told that Prime Minister Mulroney wanted me to take on the Human Rights Commission, I felt that this was the right decision, especially as it had the advantage of bringing us back to Ottawa, where Janice took up the position of dean of the Faculty of Arts at Carleton University. I can only hope the PM also did. And on occasion I wondered, especially with a man who was capable of being vindictive from time to time. Not a problem I ever had with Mr Trudeau or Mr Clark, in my days as language commissioner, or for that matter with Mr Chrétien in my last years at the Canadian Human Rights Commission. Mr Mulroney was another story, and when the commission published severely critical comments in 1990 about the government’s treatment of Aboriginal peoples, it was not long before Prime Minister Mulroney’s displeasure was made known through the denial of the normal pay raise for people in my position. (‘What do you expect?’ commented the senior Privy Council official dealing with personnel matters: ‘He’s an Irish politician.’ With a temper to suit, it would appear.) Yet another argument, it seems to me, for ensuring the absolute independence of commissioners of this sort from the government of the day, including the matter of setting salaries. At all events, the job of chief commissioner brought absorbing years of involvement with legal, political, social, and plain human issues, which continue to unfold and whose ultimate resolution will be the work of others long after my time. I have often been asked how it compared with the language-rights business. At first blush, the answer seems simple enough. As I have remarked above, language is the stuff of intense controversy in a country like Canada; human rights, everyone approves of. But a closer look reveals that, while this may hold up in principle, it soon

Introduction

23

dissipates when it touches people more closely. That is different, and a not-in-my-back-yard reaction often follows hard behind. This being said, Canada has nothing to fear from international comparisons with its human rights record. We have done as well as any country and better than most. The problem is a different one: we have our own standards – about which we are fond of preaching to others – and it is those we must live up to. In that respect we still have a long distance to travel, although I personally have no doubt we are on the right path. Finally, one must again ask whether commissions like the one I had the good fortune to head play a useful part in this process. I hope the reader will forgive me for offering the view that they probably do. For all their weaknesses, they are just as much a contributor to progress here as in the language arena, and for that matter in most areas where governments need a push from time to time. From a personal point of view, my nine-plus years with the Canadian commission appear to bear out that judgment. We were often too slow in dealing with matters put before the commission, and we sometimes got it wrong, as do all human rights commissions in Canada. But the commissioners and staff worked conscientiously on the issues submitted to them, and on the whole with some success. We could no doubt have done a good deal more, but I was not unhappy with what we had been able to achieve. f) Member, United Nations Human Rights Committee Still, forty years of service in and around government is a long haul, even with so many changes of pace along the way, and it was time for other things. However, I hoped to be able to avoid a future in which I might be obliged to go from being 100 per cent busy to zero per cent overnight. As a result, I welcomed the possibility of standing for election as a member of the United Nations Human Rights Committee. It was my first experience at campaigning, and I confess I was nervous. Canada had not always had the best record on getting its people elected to international organizations; there were too many Western candidates in any case; all in all, it looked as if it might be a close thing. As it turned out, I was far too pessimistic. Officials in Ottawa and abroad did an excellent job of promoting my candidacy. We romped home with furlongs to spare; and I was easily re-elected four years later, again largely as a result of their efforts.

24

Transforming Rights

They were eight fascinating years, but a completely different situation from what I had been used to. I was one among eighteen, and had no control over staff or managerial responsibility for anything. The committee was talky, very talky. It was inefficient, and it could be frustrating. As a result, people were forever musing about ‘reforming’ it. And yet, as I left it behind at the end of 2004, about to be ‘properly retired’ at last, I knew that I would miss the debates, the exchange of ideas (especially on issues of international law with which I was not always familiar), indeed, from time to time the sense of genuine intellectual stimulation. I shall return to this issue later, and I say now only that it is easy enough to conceive of improvements to the Human Rights Committee. It is under-resourced, understaffed, and badly backlogged. The same is true of other similar institutions within and outside the U.N. system. At the same time, I have not a moment’s doubt that we would be substantially worse off if the world community had to get on without the human rights treaties and the ‘treaty bodies’ that go with them. They are the United Nations in microcosm, with all its weaknesses and strengths, and, like the United Nations, they are not going to go away. Indeed, if we did not have them, someone would probably have to invent them. And that is that: a few observations of a personal nature, by way of background: I shall not try the reader’s patience with further ventures into my biographical byways. I have focused above on some of the main lines of the language and human rights themes that have been so much a part of my professional and personal life in order to provide a background structure to the major theses of this essay: that language rights and human rights are now deeply engrained in Canada’s cultural makeup; that they are closely related, even though we have opted to treat them separately in our law and administrative practice; that they are intertwined with Canada’s international obligations on rights; and that the commissions and tribunals that deal with them on a day-to-day basis have provided an invaluable strategic underpinning for their realization in practice. These arguments will be developed more fully in the remainder of this study.

PART TWO Language Rights

Two observations are, I think, important before we begin a closer examination of the Royal Commission’s lengthy study and recommendations, which were to frame language reform and language rights policy from the mid-nineteen sixties until the present day. First, questions are sometimes asked as to why language rights and human rights are dealt with almost independently of one another in this country. After all, language rights are usually regarded as a subspecies of human rights – for example, in the Universal Declaration and the international treaties. Nevertheless, in Canada, we have taken them up separately, both in different sections of the Charter of Rights and in the two statutes, the Official Languages Act (OLA) and the Canadian Human Rights Act (CHRA). Why that should be so is perhaps less clear, but two explanations might be offered. The first is obvious: as the Royal Commission reported, the French language had been regarded for many years – especially but not exclusively by Francophones – as being in danger, even in the province of Quebec. Something had to be done about it. And part of that something was the report of the Royal Commission, and the language legislation and constitutional provisions that followed. Additionally, and somewhat more obscurely, language rights were sometimes thought, by the Supreme Court of Canada among others, to result from a ‘political compromise,’ and thus to be of a different order from fundamental rights. The judgment in which the late Justice Jean Beetz set out the court’s view on this issue was later overturned, but it may be that a sense of the ‘difference’ of language rights remained in some degree. Second, is the question why I devote so much time and space in this study to language rights, as against the panoply of human rights that

26

Transforming Rights

absorbs us so much in twenty-first-century Canada. Again, one reason is historical. It may be forgotten nowadays by some Canadians just how disruptive and conflict-ridden the problem of language has been in this country, and how acute those divisions were in the middle of the last century. When I began in the language commissioner’s job, in 1977, and for years afterwards, the whole debate was much more emotional than it is today. In the west, people were outraged at the prospect of having French ‘shoved down their throats’; in Ottawa, public servants were alarmed at the prospect of losing their promotions, if not their jobs, because of alleged bias in favour of bilingual colleagues (read Francophones); and in Quebec, the PQ Government had just had Bill 101 adopted by the legislature, thereby stoking up the fires of resistance from Anglophones. This was more than just a few critics of the Bilingualism and Biculturalism (B and B) Commission. Occasionally, it got very unpleasant, and those of us on the front lines were at times in a defensive mode. Many people would accept that nowadays a majority of Canadians, in both English and French Canada, support the basic aims of the program. It was not always so, and to this day there are many holdouts. The reality is that, without Prime Minister Pearson’s attempt at least to begin to defuse the problem with the establishment of the Royal Commission in the early 1960s, we would be in much greater trouble than we are now. And further, it has to be recognized that the B and B Commission was unique in the history of such creatures in Canada. Virtually all their 150 recommendations were dealt with as they were published. And nearly all were accepted and acted upon in so far as they were within the capacity of the federal authorities to do so. I know of no other commission of enquiry that has had such a direct and substantial influence on government strategy in a wide-ranging and important area of social policy. There are of course other commissions that have produced detailed and thoughtful analyses of equally challenging problems. An excellent example was the Royal Commission on Aboriginal Peoples, but as it turned out their massive report was pretty well left to wither on the vine. I can attest personally to the fact that the B and B commentary most certainly was not. My duties in the Department of the Secretary of State, from 1969 to 1973, were very heavily influenced by the commission’s work, for unlike much government policy formation, in this case it grew almost entirely out of a reaction to their recommendations, one by one,

Language Rights

27

as the various books of the report were published. It is for this reason that I propose to develop a fuller account of their analysis than might otherwise appear warranted, and why I believe it is entirely justified to set out a thorough review of their conclusions and the course of action that governments undertook in response to them. 1 The Background to Language Reform This is not the place for an extensive historical account of the evolving situation of the English and French languages in what we now know as Canada. Suffice it to say that they have coexisted for centuries on the northern half of this continent, and that they have never been absent as a nagging problem for government policy makers and legislators. For the purposes of this analysis, the question is much less convoluted. What we need to ask ourselves in broad terms is how Canada came to be, some one hundred years after Confederation, in the situation in which it found itself in 1963 when Prime Minister Pearson established the Royal Commission on Bilingualism and Biculturalism. A series of interlocking threads make up the tapestry. To begin with, although there may have been some observers at the time of Confederation who hoped for a reasonable degree of language accommodation, for a country that was roughly 61 per cent British and 31 per cent French, language rights were in fact insubstantial. There were two main elements. First, section 133 of the British North America Act (the 1867 Constitution) guaranteed that English and French would be used in the records of Parliament and the Legislature of Quebec, and that either could be used in debates, as well as in the federal courts. Second, some commentators in the minority communities perceived the confessional guarantee to Catholics in Ontario and Protestants in Quebec as offering indirect protection to the language of instruction in the schools. And that was it. The act did not provide for bilingualism in the legislatures of either Ontario or New Brunswick, despite sizable Francophone populations. And although language provisions were enacted for Manitoba and the Territories, they were later ignored or legislated out of existence for the better part of a century. Section 23 of the Manitoba Act, which followed the language of section 133, was repealed in 1890. Soon afterwards the legislative assembly of the Territories abandoned the use of French by resolution; a similar unilingual regime subsequently applied, however illegally, in the Yukon Territory, and in Alberta and

28

Transforming Rights

Saskatchewan, after they were carved out of the Northwest Territories in the early years of the last century. It was not until unilingual regimes were overturned by the Supreme Court as a result of legal challenges in the 1970s and 1980s that a measure of legally sanctioned bilingualism returned. Elsewhere official bilingualism was essentially unknown. As to education, the guarantee was flimsy indeed. In 1967, the Royal Commission asserted that, ‘Almost without exception, it has been impossible for a French-speaking student outside Quebec to complete his education in French through the elementary and secondary public schools.’ By contrast, Anglophones had access in Quebec to a full range of publicly supported English-language schools, including at the university level. Within the corridors of government, the picture was not dissimilar. It was a commonplace that, in federal offices in Ottawa, if you were a Francophone, ‘you hung up your language with your coat when you came to work in the morning.’ (I personally recall hearing this bon mot from a French-speaking colleague in the Department of External Affairs in the early 1960s.) After all, ‘French-Canadians all speak English – what is the problem?’ Even in Parliament, although section 133 provided that either French or English could be used in debates, this was not very often the case, as French-speaking MPs knew very well that they would generally not be understood if they did. It was not until 1959, going on one hundred years after Confederation, that this situation was changed by the introduction of simultaneous interpretation facilities in the House.1 Service to the public ran along more or less the same lines. If you wanted to get a timely answer to a request addressed to a government agency (or indeed any answer at all), you were better off to write in English. A telephone call was even less likely to produce a reply to a query in French. There was, it was said, ‘no demand’ for Frenchlanguage service. In the English-speaking provinces and municipalities, the situation was the same … or worse. No service in French, and no possibility of working in French. Much the same regime held sway in other areas of civil life. Before the courts, for example, apart from the provisions of section 133 of the British North America Act, the vast majority of proceedings outside Quebec were in English, and a Francophone to all intents and purposes was in the position of a foreigner, granted the services of an interpreter at the discretion of the court, but with no right to be tried or judged in

Language Rights

29

his own language. No more did the federal cultural agencies, particularly the Canadian Broadcasting Corporation (CBC), operate across the country in both official languages, though they provided English-language coverage in Quebec. Finally, outside Quebec, the private sector presented perhaps the most barren terrain of all. Even in communities with considerable Francophone populations, the prospect of service in French in commercial establishments outside certain confined areas (in the district known as Lower Town in Ottawa, for example) was virtually non-existent. Perhaps worse, the prospect of a hostile response to the use of French was sufficiently prevalent to dampen a willingness to use the language on the part of all but the very boldest Francophones. What about Quebec? First of all, there were, and for that matter still are, two Quebecs: on the one hand, the partially English-speaking areas, the Eastern Townships, say, or Montreal, and on the other, virtually unilingual French communities. Anglophones were in the minority across the province, to be sure, but in areas of their relative concentration, some argued, they were accustomed to behave rather more like a majority. How much – or little – truth there was in the allegation that Francophones were in effect told to ‘speak white’ by Anglo-Quebeckers is not the main issue here; what matters is that some of them perceived it to be so, and that they were certainly not offered service in French in many commercial outlets in Montreal. As a result, they could hardly avoid feeling themselves at times to be on the defensive even in their own metropolis. Further, not a few French-speaking Quebeckers believed that this state of affairs was inevitable as long as Quebec remained a Canadian province. Be that as it may, one thing is clear: at that time, services – governmental, judicial, educational, cultural – were freely available to the Englishspeaking community in Quebec in all areas where they were present in reasonable numbers, to a degree that was unthinkable for Francophone Quebeckers’ fellow citizens in other parts of Canada. Combined with a sense of grievance at what some considered a violation of a historical compact, and a sempiternal desire to create their destiny on their own, the unquestionably inferior situation of their language, and the apparent inability – or unwillingness – of Anglophones to recognize that fact, were a more than sufficient response to the question how we came to find ourselves in the ‘crisis’ identified by the Royal Commission. The more difficult question was what to do about it. It was this matter that was placed before the commissioners more than forty years ago, and

30

Transforming Rights

which, since that time, has never been far from the centre stage of public debate in Canada. 2 The Origins of the Royal Commission on Bilingualism and Biculturalism In July 1963, the new Pearson government established a Royal Commission ‘to inquire into and report upon the existing state of bilingualism and biculturalism in Canada and to recommend what steps should be taken to develop the Canadian Confederation on the basis of an equal partnership between the two founding races, taking into account the contribution made by the other ethnic groups …’ In particular, the commission was asked 1. to report upon the situation and practice of bilingualism within all branches and agencies of the federal administration … 2. to report on the role of public and private organizations, including the mass communications media, in promoting bilingualism … and the basic bicultural character of our country and of the subsequent contribution made by the other cultures … 3. to discuss with the provinces the opportunities available to Canadians to learn the English and French languages, and to recommend what could be done to enable Canadians to become bilingual …

The co-chairs of the commission were André Laurendeau and Davidson Dunton, with Laurendeau replaced on his death by Jean-Louis Gagnon, one of the commissioners. The others were the Rev. Clément Cormier of Moncton; Mr Royce Frith of Toronto; Mrs Gertrude Laing of Calgary; Mr Jean Marchand, who resigned in the autumn of 1965, prior to being elected to Parliament, and was replaced by Mr Paul Lacoste of Montreal; Mr Jaroslav Rudnycyj of Winnipeg; Mr Frank Scott of Montreal; and Mr Paul Wyczynski of Ottawa. It is perhaps worth noting, from the perspective of another generation, that only one was a woman, and that all were white, although some semblance of ‘multiculturalism’ was observed through the presence of Messrs Rudnycyj and Wyczynski. The commissioners were to report ‘with all reasonable despatch.’ One wonders in retrospect whether they must not have asked themselves what in the world they had got themselves into. They were not to be long in finding out, as some of their public meetings revealed very

Language Rights

31

quickly the depth of Canadians’ feelings on the issues: ‘Some of those who came expressed their views vigorously,’2 and contributed dramatically to what the Preliminary Report refers to as the ‘shock value of the experience.’3 One element in the mandate with which the commissioners began their work is particularly striking, especially with the benefit of hindsight. In their Preliminary Report, they wrote that ‘In our opinion, the dominating idea in our terms of reference was “equal partnership between the two founding races.”‘4 This idea, notably in its ‘two nations’ variant, was a major feature of the 1968 election, and was to haunt Canadian political discourse for many years, and, for that matter, still does. Politics aside, however, it is unquestionable that the ‘biculturalism’ aspect of the mandate was clearly stated, and doubtless was particularly close to the hearts of some of the commissioners. But it had a shaky future ahead of it. It survived the Preliminary Report, but it was already placed in some doubt in Book I of the main report, where Professor Rudnyckyj’s ‘Separate Statement’5 emphasized the importance of other languages, and their recognition in law. ‘Multiculturalism’ as a full-fledged policy and a legislative and constitutional doctrine was not to be far behind, spurred on by continuing, substantial immigration, particularly to Canada’s largest cities, and the profound changes to our demographic and social makeup that followed with it. In these circumstances, a pure ‘bicultural’ model, with a slight bow to the ‘contribution of the other ethnic groups,’ was unsustainable, however painful that fact may have been for some to accept. Beyond the bilingual-multicultural conundrum, there was another factor at work that deserves passing mention: what one might call ‘Royal Commission overload.’ Once given their skeleton mandate, and told to get on with it, such enquiries tend to expand to fill the time available to them, and time often appears to be no object. The result is often a massive investigation, far beyond what the originators had anticipated, and a sizable number of equally comprehensive solutions. The latter can be pursued, moreover, in extensive detail, to a point that is simply not absorbable by governments and legislatures in the real world, as against the logically rigorous, hothouse environment of the commission and its staff. Such was the case, one may conclude in retrospect, with the B and B Commission. This is not intended, however, as criticism of the commission. To the contrary, it was for the best that it laid the whole problem before the policy makers and the Canadian public. Nevertheless, there was a limit

32

Transforming Rights

to what the authorities might have been expected to be able to swallow, and we should not be surprised as a result that they did not always come through in practice, even on matters where they had accepted the commission’s recommendations and set out to try to implement them. This being said, the commission’s reports and recommendations represent a unique insight into the language situation that Canadians had inherited on the hundredth anniversary of Confederation, and a firstclass attempt to work through the linguistic-cultural-political maze of issues with which they were confronted. That they did not resolve all the problems is hardly surprising. Looked at through the glass of history, however, it is difficult to imagine a more comprehensive or objective legacy of thoughtful analysis. 3 The Royal Commission Recommendations and Government Reactions a) Preliminary Report The commissioners’ first effort, published in early 1965,6 should be compulsory reading for anyone who wants to get a feel for what they set out to achieve, and what they discovered en route, particularly in hearings, meetings, and discussions across the country. It is a carefully crafted piece of social history. It is also a remarkably acute analysis of what the Canadian predicament was all about, much of which holds good more than forty years later. It begins with the unvarnished assertion, to which I have referred above, that ‘Canada, without being fully conscious of the fact, is passing through the greatest crisis in its history.’7 The crisis, in the commissioners’ view, was evidently located in Quebec, where ‘the state of affairs established in 1867 … is now for the first time being rejected …’ In this context, the notion of ‘partnership’ was fundamental to their thinking and never far from the surface in their report. Putting it another way, they observed that ‘it is a matter of seeing how the co-existence of two communities, one French and the other English-speaking, can best be worked out within a single country.’8 At the same time, they were not unaware of the views of the ‘separatists and quasi-separatists,’ the latter being described as embodying ‘a state of mind peculiar to those who, although they have not chosen separatism, probably could do so under certain circumstances … since they were already defining their position almost exclusively from a Quebec

Language Rights

33

point of view.’9 They were also thought of as encompassing ‘undecided or pragmatic persons [in whose] perspective anything which has to do with the rest of Canada is more or less disregarded, or looked on with total indifference, if not indeed with suspicion and anger … [to whom] separatism seems … to be one reasonable possibility … and no longer a strange and incongruous phenomenon.’10 Obviously, in the commissioners’ eyes, the commission’s whole raison d’être was to reset this frame of mind – if it was not already too far gone – through revivifying the partnership structure in the Canadian context. Although it may not have been their own option, they were also alive to the fact that ‘multiculturalism’ was regarded as a viable alternative in Canada outside Quebec. They ran into it time and time again as they met Canadians across the country, and observed that to some degree it was perceived by its proponents as incompatible with ‘the idea of Canada having a dual nature.’ It is, by the way, one of the earliest uses of the term ‘multiculturalism’ that I can recall in a public document. Thus, for example, they reported that ‘Ukrainians in particular … took delight in emphasizing “multiculturalism” as the distinctive characteristic of Canadian society.’ If they ‘vigorously stood up against the idea of “two founding races” it was because they were deeply conscious of having themselves cleared and opened great stretches of territory … and of having contributed in this way to the “founding” of a part of modern Canada.’11 I have to say that I agree with their view that the origins of multiculturalism were to be traced squarely to westerners of non-English, non-French origins: ‘Are we, west of the Ontario border, to be considered second-class citizens?’ The ‘prominent role’ that Canadians of German, Dutch, Polish, Scandinavian, Ukrainian, and other origins played in settling the west made it unsurprising therefore that ‘the desire of these groups to be seen as a special element in Canadian life was strongest on the Prairies.’ A then unforeseeable change is the present-day opposition to multiculturalism in some areas of the country, opposition that is much more likely to be seen as involving individuals from Asia, Africa, and the Caribbean, with the further complications that fact brings with it. Woven into the linguistic-cultural tapestry are additional issues – sometimes directly related, sometimes tangential – that the commissioners discovered, issues that will be as familiar today as they were when the commissioners criss-crossed the country forty-five years ago. ‘Special status’ or even ‘associated states,’ for example, were canvassed as solutions to the persistent problem of relations between Quebec and

34

Transforming Rights

the rest, clearly identified for what they were in an analysis that is no less relevant in our time than it was when it was written.12 Similarly, the discussion of individual versus collective rights,13 albeit brief, remains as apposite as it was then. Particularly instructive is the emphasis they found was placed by English-speaking Canadians on individual rights, and the ‘belief, typical of a majority, that the most important freedoms are personal,’ which made, and still makes, ‘French Canada’s emphasis on group rights difficult … to grasp.’14 Throughout the entire account, a striking characteristic of comments made over and over again to the commissioners is their enduring presence in the Canadian tableau. They could be made today in much the same terms as in the nineteen sixties; and many of the inaccuracies and misperceptions may be seen, although mitigated over the years, to have great staying power on both sides of the language divide. One notion that persists is that ‘education’ is the only answer. For example, one could read in 1970 that, ‘Only when these portions of the population [presumably, those who are ‘confused’] are properly informed of the philosophy and politics behind the government’s actions will there be a chance of legislating successfully on language and related matters.’15 One hears exactly the same argument today. If it were well founded, it would be a recipe for perpetual inactivity: what we need is not more education but more leadership and action. In the case of multiculturalism, the same no-hyphenated-Canadians argument still crops up, albeit aimed more at turbaned Sikhs or Muslim women wearing the hijab than at Ukrainians. As does the foreverreappearing concept of ‘distinct society,’ which surfaced on various occasions on the commissioners’ travels, and of course was accepted by them as an accurate representation of the Canadian reality.16 The picture as some Canadians still see it was therefore set in its essentials more than forty years ago in the Preliminary Report, which ended on the same note with which it began: a Canada with a future in partnership, or no future at all. Or put another way, ‘Canada will live and thrive if there can be a satisfactory matching between the minimum of what French-speaking Canadians consider as vital, and the maximum that English-speaking Canadians will accept.’17 For the commissioners, this meant that ‘English-speaking Canadians have to face the fact that, if Canada is to continue to exist … the partnership must be worked out as between equals … On the same evidence … French-speaking Canadians for their part must be ready to respond positively if there are to be truly significant developments towards a better partnership … to

Language Rights

35

restrain their present tendency to concentrate so intensely on their own affairs … to beware of the kind of thinking that puts “la nation” above all other considerations and values … [to] remember that, if a partnership works, each partner must give as well as get.’18 At the same time, they were clear-sighted enough to observe that many English-speaking Canadians had an entirely different point of view. With the result, as identified by Lord Durham as long ago as 1838, that there existed ‘a world of misconceptions in which each party is set against the other not only by diversity of feelings and opinions, but by an actual belief in an utterly different set of facts.’19 ‘Thus it was,’ the commissioners concluded, ‘that the regional meetings a century and one quarter later, very often gave us the impression of listening not to a dialogue but to two soliloquies.’ Many of these ideas are still commonplace. And what should we conclude from all this? That Canadians are slow about settling their problems? It surely is noteworthy that few peoples would be capable of having a ‘crisis,’ and a peaceful one at that, still going strong after more than forty years. Or that this particular problem will be with us forever? The answers are no clearer today than they ever were. Diehard separatists are still convinced that time is on their side; and federalists are equally firm that, if a fair and honest question is put to Quebeckers, they will answer ‘no.’ For the purposes of this analysis, however, I want turn away from politics and back to language policy, in so far as the two can ever be distinguished. The Royal Commission itself, as is apparent from the observations above, was much taken with the political side of its mandate in the Preliminary Report, but it largely turned to less dramatic (though no less far-reaching) matters in the remaining volumes. Whether this was because of the initial reaction of the commissioners to what they heard on their travels across the country, or to the disappearance from the scene of André Laurendeau, or for other reasons, is lost in the mists of time. Certainly the issue was never far from the surface, and returned in later debates over the Meech Lake and Charlottetown agreements, only to retreat and return yet again, for example, in the sub-text of the ‘Clarity Bill’ and some Quebeckers’ reaction to it, and in the ‘Quebec as a nation’ resolution adopted by the House of Commons in November 2006. But against that background, the language element continued all the while to develop and reinforce itself – in legislation, in the courts, in the organs of the administration, in education, and in Canadian cultural life –

36

Transforming Rights

in such a way as to alter irrevocably the social landscape of the country. It is to these issues that we will turn our attention below. First, however, we must look at the initial commentary and recommendations, in Book I of the report, which provides both ‘A General Introduction’ and the commissioners’ proposals regarding ‘The Official Languages.’20 b) General Introduction Book I of the Royal Commission report may be confusing to a reader who comes to it cold some forty years after it was written. Not only did it follow the Preliminary Report by more than two years, it in fact comprised two texts within a single volume: a general introduction to the entire report, and Book I itself, dealing with the official languages. It is worth underscoring that the two are rather different in their approach. The General Introduction, some thirty pages long, or the ‘Blue Pages,’ as they were usually called (for the rather banal reason that they were printed on blue paper), has long been considered one of the most significant sections of the report. It describes itself as an explanation of ‘The Key Words of the Terms of Reference,’ and so it is. But it is much more than that, for it sets down a number of the major conceptual premises on which the entire report is founded. To begin with, it reconfirms the commission’s earlier observation that Canada was indeed ‘passing through the greatest crisis in its history,’ and that the commissioners saw no reason to alter this conclusion, however much many Canadians may have been ‘shocked’ by the word ‘crisis.’ And it gives continuing emphasis to political constructs like ‘partnership’ and ‘equal status,’ which, as we have seen, played such a significant part in the Preliminary Report. This is not surprising, as the ‘Blue Pages,’ like the Preliminary Report, were heavily influenced by André Laurendeau, a genuine Quebec nationalist, doubtless the foremost proponent of these ideas on the commission, and of course a formidable advocate, owing both to his own talents and to his position as co-chairman. It also returns to various key notions used in the terms of reference, and reflected in the Preliminary Report, that the commissioners subsequently attempted to refine in light of public comment and, indeed, on occasion, severe agitation and criticism. The expressions ‘two founding races’ and ‘other ethnic groups,’ for example, and ‘particularly the use in the English text of the word “race,”‘ had, they admitted, ‘been a source of misunderstanding.’21 It should not in their view have been taken to imply any special place for the English and French vis-à-vis

Language Rights

37

the others. Given the plainly condescending (though no doubt innocent) usage of many years standing in this country,22 according to which ‘ethnic,’ or even more clearly ‘ethnics,’ referred to the non-English, nonFrench elements of our population, this was to prove a difficult line to sell. No doubt the drafters of the commission’s terms of reference and the commissioners themselves did not mean it in that way, but it is easy to see why individuals of Ukrainian or other heritage reacted in a rather different fashion. With the benefit of hindsight, some observers will also be puzzled at the absence of any reference to the Aboriginal peoples and their languages, given the attention paid to the matter, not to say the controversy and pain it has aroused, over the last forty years. ‘We should point out here,’ the commissioners observed laconically, ‘that the commission will not examine the question of the Indians and the Eskimos. Our terms of reference contain no allusion to Canada’s native populations … However, the commission considers it a duty … to remind the proper authorities that everything possible must be done to help the native populations preserve their cultural heritage … [and] to assist the survival of the Eskimo language and the most common Indian dialects.’23 It is also noteworthy that virtually no Native people or groups appear to have submitted written briefs to the commission – the only ones I have noted are Kahn-Tineta Horn, and the Caughnawaga Defence Committee. This should be contrasted with the very broad range of other groups that appeared, from the Communist Party of Canada to the Student Christian Movement. There is no point, it seems to me, in revisionist history, and I do not question this conclusion. There are no doubt reasons why the government did not wish the commission to get involved with Aboriginal languages – not least that it had already bitten off as much as it could chew with bilingualism and biculturalism. Nevertheless, it might have been helpful, had it been able to offer some thoughts on an issue that has troubled Canadians greatly in the intervening years. The whole conception of ‘institutional bilingualism’ is also one that returned to haunt government planners as they sought to deal with the commission’s recommendations. In theory, the idea is simple enough: ‘A bilingual country’ is one in which governments and other similar institutions offer services in two languages, ‘not one where all the inhabitants necessarily have to speak two languages.’24 However, to explain that to the public is quite another matter, and the present writer can attest from rather trying personal experience that many Canadians

38

Transforming Rights

most certainly believed that it did in fact entail personal bilingualism. This in turn was partly responsible for the ‘shoving-French-down-ourthroats’ and ‘bilingualism-today-French-tomorrow’ backlash that has plagued the program for many years. Indeed, the commission itself opened the door to this kind of reasoning from the beginning, when it went on to assert that ‘Naturally a bilingual … country can function efficiently only if there are a sufficient number of bilingual people to maintain contact between the two language groups.’25 For many people, this meant jobs that they saw as being closed to them, and the language planners never succeeded in persuading them otherwise. I shall return to the subject below: it suffices here to say that it may have been no more than a semantic nuance to begin with, but it cost the language reform policy dearly with the passage of time. Incidentally, it is also instructive to compare it with the thesis, accepted pretty well universally in human rights law and jurisprudence, that individuals may have to be treated differently in order to treat them equally – this too is crystal clear to the experts, while it is difficult to convince ordinary mortals that it is not a piece of linguistic legerdemain. The question of human rights will of course be a major component of this study at a later stage. It is worth pausing briefly here, however, to note that the commission apparently made little attempt to draw a connection between language rights and other human rights, a question that was later to preoccupy the Supreme Court of Canada, among others, especially in the post-Bill 101 world. ‘We are not asked by our terms of reference,’ the commissioners reported ‘to deal with these fundamental rights.’26 They nevertheless did allude to those ‘inalienable rights’ as set out in the Universal Declaration of Human Rights, adopted by the United Nations in 1948. And they went so far as to cite the list of prohibited types of discrimination set down in article 2 of the declaration, a list that of course includes ‘language.’ Finally, it is worth observing that the General Introduction returned to a discussion of biculturalism, and of individual versus collective equality. As to the individual, the commissioners asserted that they favoured a ‘realistic approach’: ‘equality between the two dominant languages and cultures cannot mean absolute equality of the members of both groups … it will never be possible for [them] to enjoy the advantages described … throughout the country on an equal footing … [to] enjoy the same services everywhere; this would be absurd in practice … [but] wherever similar conditions are found, similar services will be offered.’27

Language Rights

39

Most Canadians would not quarrel with this scheme of things, and indeed it more or less reflects the situation prevailing at the present time. However, as we know from the views expressed by them earlier, in the commissioners’ eyes there was more to ‘bilingualism and biculturalism’ than this. In particular, they had no intention of abandoning the ‘political dimension’ with which they were so engrossed in the Preliminary Report. It is ‘evident,’ they remarked, that ‘languages and cultures are essentially collective phenomena,’ and that this meant that ‘a culture will be fully experienced only within its own complete society.’ From this it was a short jump to the inference that equality within the Canadian federation required a collective approach, with all that this entailed. ‘Such are the main aspects of the notion of equality which has remained the steady preoccupation of the commission.’ However, this was not to be the preoccupation of the Canadian government in the ensuing years, especially following the election of Pierre Trudeau in 1968, in a campaign in which he dedicated considerable energy to combating ‘collective’ solutions, whether under the guise of ‘partnership,’ ‘special status,’ ‘associated states,’ or other formulations of the same concept. At the same time, Trudeau was very much interested in the linguistic side of the commission’s recommendations, as we shall see in what follows. And lastly, it should be observed, before leaving this subject, that there is a curious omission in the commission’s report. Page xviii of the General Introduction refers to a ‘last Book.’ This volume was to contain ‘the general conclusions of the Report,’ but in the event, it never saw the light of day. It is my understanding28 that it was intended in the early days of the commission that such conclusions would have given even further emphasis to the degree of autonomy that some members, particularly Laurendeau, believed that Quebec needed to make the ‘partnership’ a reality. Others did not share this view, and, following Laurendeau’s death and Trudeau’s election, the project eventually came to nothing. c) The Official Languages Book I of the commission’s report sets the stage, along with Book II on education, for its major proposals in relation to what has been called ‘official bilingualism.’ First, however, there are two matters of a general nature that require further attention. In the initial pages of their presentation, the commissioners returned

40

Transforming Rights

to the important distinction between individual and institutional or state bilingualism. The basic conflict remains, however, and in my view they were no more successful in dispelling it here than they had been in the earlier attempts that are described above. The commissioners once again asserted on the one hand that, ‘The bilingual state is not intended as an instrument for the propagation of individual bilingualism.’29 All well and good. But they immediately proceeded to add that, ‘The bilingual state is characterized by a wide variety of bilingual institutions …’30 Again, that is true. But if one takes the second observation seriously, it evidently follows that some people have to be bilingual, and this in turn raises questions with respect to which people, how many, and how bilingual – with all the bitter debate that these problems brought with them. First of all about jobs, but also about the fundamental character of the country and the place in it that would be enjoyed by Anglophones, Francophones, and those of other linguistic origins. There is no need to dwell further on the point. However, it is important to recognize that the distinction has never been clear in the minds of many Canadians, even those who were otherwise reasonably well disposed to the federal government’s language policies. It also needs to be appreciated that this lack of clarity and the suspicion it generated that the government was trying to hide its real intentions, or, put more charitably, was not fully aware of the consequences of its policy, have resulted in significant fallout for the development of language policy in Canada, and continue not infrequently to trouble the waters. Second, there is a notable conceptual issue, which underlies virtually all serious discussion of official bilingualism, and remains the subject of considerable debate in this country as in other bilingual or multilingual states: the ‘territorial’ versus the ‘personality’ principle. Briefly put, the principle of territoriality ‘limits to specified regions the individual’s right to public service in his own tongue,’31 whereas the personality principle requires that ‘service … be given in the individual’s language no matter where he lives.’32 The arguments in favour of one or the other principle are numerous. It is often suggested, for example, that a territorial system is more realistic, taking account, as it purports to do, of the demographic facts of life. Others insist, to the contrary, that it ignores the needs of the minority, which can only be respected by arrangements that follow the personality principle. Evidently, either option is difficult to sustain in its pure form, although I suspect that there is a territorialist lurking

Language Rights

41

within many people. It appears so much simpler than the personality principle, or the modified version the Canadian authorities have tried to promote, which has remained difficult to market to this day. However, I have to say that my own exposure to Belgium’s unhappy experience with a more rigorous application of the territorial principle, and to the deep animosity it has generated between the two linguistic groups in that country, has been enough to persuade me that it would be a nonstarter in Canada. In any event, most states adopt more flexible variants in practice, mitigating to some extent an entirely consistent application of the principle by the public authorities. Thus, for example, Switzerland, as a federation, provides service in the client’s language at the federal but not always at the cantonal level. And Finland has established ‘bilingual districts’ where services are available in Swedish as well as Finnish, which is not the case elsewhere across the country.33 It should be noted that the Finnish system is particularly important in the Canadian framework, because the commissioners announced their intention ‘to borrow and to adapt [the idea of bilingual districts] into the Canadian context.’ That this idea did not work well in the end relates in good part to the very different Finnish historical context. Presumably the Finns did not have as much of a problem because service had always been provided in Swedish, the ‘higher-status’ language. Even though Swedish speakers had declined from 14 per cent in 1880 to 11 per cent in 1919, the year of the legislation, and to 7 per cent by 1960, they did not find it difficult to formalize that arrangement. In that sense, the Finnish model was not as apposite as the Royal Commission apparently thought it was. The commissioners took the view, as a matter of general significance, that either the territorial or the personality principle might be applicable, depending on the circumstances. For example, the former could be more appropriate ‘when a bilingual country consists predominantly of unilingual regions,’ whereas a personality-based regime might suit better ‘where members of the two language groups are widely scattered across the country.’34 So far as Canada was concerned, however, they categorically rejected the territorial solution. It would lead, they argued, ‘in the direction of an official French unilingualism in Quebec and an English unilingualism in the other provinces.’ This, they continued, would ‘be a triumph for the territorial principle based on the provinces … it would lead to the recognition of only the majority’s rights and the oppression of the official-language minorities … We do not and

42

Transforming Rights

should not approve equality in privation … we reject any such means of trying to lessen the tensions affecting Canada.’35 With these considerations in mind, the commissioners turned their attention to an examination of the linguistic makeup of the country as it then was (on the basis of 1961 census data); to a historical review of the legal foundations of language rights in Canada; and to a brief account of where matters stood in practice as the commission was putting together its report. The latter, I have suggested above, was not an encouraging scene as far as Francophones were concerned. The commission’s analysis had revealed ‘the wholly inadequate way in which present laws give effect to the concept of the country as an equal partnership between two linguistic communities.’36 It remained to describe the measures that would lead towards a regime of linguistic equality, taking as ‘a guiding principle the recognition of both official languages, in law and in practice, wherever the minority is numerous enough to be viable as a group.’37 This they attempted to accomplish in the remainder of Book I, and subsequent volumes. In the matter of official bilingualism, they distinguished, first of all, between the federal and provincial authorities. At the federal level, they recommended that ‘English and French be formally declared the official languages of the Parliament of Canada, of the federal courts, of the federal government, and of the federal administration.’38 This recommendation was not to be given a minimalist interpretation: ‘equality … must be complete and must apply to all bodies and agencies deriving from Parliament and the federal government …’ at home and abroad, with the travelling public, in all communications with the public, forms, notices, publications, and so on. At the provincial level, it was proposed to distinguish between Ontario, Quebec, and New Brunswick on the one hand, and the remaining provinces and territories on the other. The former would declare that they recognized English and French as official languages, accepting the equality of the two languages, their use in the legislatures, in the provision of ‘appropriate’ government services, in the courts, and in education. As a practical matter, the commission recognized that this could not be achieved overnight, that it meant rather ‘setting in motion a process’ that would ‘introduce the system as soon as possible,’ with the ‘degree of effective bilingualism’ depending on ‘the number and importance of the bilingual regions within their borders.’ The other provinces would not embrace so far-reaching a regime, unless the linguistic minority reached a 10 per cent threshold. They

Language Rights

43

would, however, be expected to provide for the use of the two languages in the debates in their legislatures, and for ‘appropriate services’ to their French-speaking minorities.39 It is also worth repeating the cautionary observation of the General Introduction, that ‘it will never be possible for the members of the two main cultural groups to enjoy … advantages … throughout the country on an equal footing.’ In order to give further substance to the regime described above, it would be necessary to envisage not only central governmental services, federal and provincial, but also ‘a set of language practices … within the communities they serve.’ In the view of the commission, the best way to proceed would be by way of creating ‘bilingual districts,’ that is to say, ‘special areas within which a defined language regime would be established for federal, provincial and local jurisdictions.’40 This entailed, first of all, deciding ‘on the rules for setting the boundaries of bilingual districts.’ The criterion the commission chose was a minority population of 10 per cent or more, with the census division as the basic unit. Working within this schema, they came up with fiftyfour census divisions that would qualify, of which forty-three were in the three bilingual provinces they had already proposed. Within the districts, all services – federal, provincial, and municipal – would be provided in the two languages. The exact boundaries, they assumed, would be worked out in negotiations between the federal and provincial governments. But should they fail to produce agreement, the commission envisaged that each level of government would move independently to establish its own districts. The bilingual districts, they concluded, would be ‘the cornerstone of our proposed system.’41 To this would be added a special regime for the ‘federal capital area,’ where the two languages ‘should have full equality of status throughout …’ including all local government bodies, the courts, and the schools. Again, it was assumed that the federal and provincial authorities would ‘discuss and negotiate the necessary measures.’42 Although the question of education was to be the subject of detailed examination in Book II, the commissioners wished to include the broad lines of educational requirements in the overall picture they were developing at the outset. Thus, they recommended as a basic principle that educational systems should recognize the right of parents ‘to have their children educated in the official language of their choice.’ This would be particularly important, as they saw it, in bilingual provinces, in bilingual districts wherever they might be established, and in large urban centres. At the same time, it should not be neglected elsewhere,

44

Transforming Rights

even when the minorities were situated in isolated areas, where more imaginative solutions might have to be found. It remained for the commissioners to set out their proposals for governmental changes that would be needed to create the new regime that they were proposing. In their estimation, the changes would involve both legislation at the federal and provincial levels and constitutional amendment. As to federal legislation, the principal building block should be an Official Languages Act,43 which would ensure that Canadians could deal with federal administrative and judicial bodies in either language. It would also provide for the appointment of a ‘Commissioner of Official Languages,’ with the responsibilities of a ‘linguistic ombudsman,’ to oversee the effective implementation of the legislation. And it would give the federal government the necessary authority to negotiate with the provinces broader provisions for access to bilingual services. They also proposed an addition to section 93 of the British North America Act,44 to provide for minority-language education. And they recommended a new section 133 that would confirm the status of English and French as the two official languages of Canada. The latter would set down the requirements entailed by that status at the federal level, for the provinces of Ontario, Quebec, and New Brunswick, for other provinces that might be declared bilingual, and for the bilingual districts. Provincial legislation would involve, for ‘each officially bilingual province,’ a regime essentially similar to that proposed for the federal government, in particular the adoption of an Official Languages Act and the establishment of a post equivalent to that of the official languages commissioner. Taken together, the proposals described in Book I, and the constitutional and legislative measures designed to bring them to fruition, would amount, in the commission’s view, to ‘a new charter for the official languages … founded upon the concept of equal partnership.’ Thus did the commissioners again lay out their dual prospect for a renewed Canada – enhanced recognition for the French language, and equal partnership. It will be seen below that the second half of this prescription, with all that it entailed for the social and political makeup of the country, proved much more difficult to swallow than the first. the federal response With the appearance of the commission’s Preliminary Report in 1965, the linguistic fat was in the fire. The federal government had appointed

Language Rights

45

the commissioners; now it had to decide what to do about their recommendations. We should not suppose, however, that it was totally inactive in earlier days. On the contrary, the cabinet had authorized in 1963 the formation of an interdepartmental committee of senior officials to report on measures designed to promote bilingualism in the public service. And in the spring of 1966, Prime Minister Pearson had made the far-reaching statement on the same subject that is recorded below. Indeed, it was so far-reaching that there is serious reason to doubt, some forty years later, whether the stated goal, that it would be ‘normal’ for internal communications to take place in either language, ‘in the knowledge that they will be understood,’ has yet been realized. Other measures were beginning to be put in place as well. For example, as far back as 1964, the first public service language school opened, and the Public Service Commission established a research bureau on language teaching. And a French-language study program was later established in Quebec City that the clerk of the privy council, the most senior public servant,45 took part in to show the government’s seriousness of purpose. But it is fair to characterize the program then existing as less than effectively managed, not to say chaotic. As a result, a special secretariat was established in 1966 to ensure better coordination. It was, however, situated in the Privy Council Office, not an ‘operational department,’ and therefore not thought to be well suited to this kind of responsibility. By the time I moved from External Affairs to the Secretary of State’s Department in 1969, there was still some debate about a permanent home for the language-policy dossier. After much toing and froing, it was finally transferred to my new department, and we began to set up a more coherent effort. The other agency in the running had been the Treasury Board Secretariat, which some thought the best fit, as the government’s ‘manager.’ It is vaguely amusing to note that there was none of the customary bureaucratic infighting about who was to take over the new responsibilities. On the contrary, the board was not really interested, and was happy enough to see it pass to the Secretary of State’s Department. We naturally could not get the necessary arrangements in place overnight, but we moved reasonably quickly through the bureaucratic maze. We first had to scramble for a suitable number of positions with appropriate ranks attached to them – all-important in the public service, but not, I confess, a matter of great personal interest to me. We then had to decide on a structure to encompass these people: to deal, for

46

Transforming Rights

example, with the provinces on the matter of education subsidies, and with the official-language minority groups, together with a small component to wrestle with policy questions. We had good cooperation from the minister’s office, and from the under-secretary, and, I like to think, a moderately successful operation got underway. the trudeau commitment By this time the new prime minister had been in office for more than a year, and had brought with him a deeply rooted commitment to language reform that remained to the end of his days. Even though political pressures may have led him to temper his approach somewhat in his later years in office, it never left him. When I suggested to him, during one of my periodic calls as language commissioner, that the effort was slowing down, he replied half jokingly that some of his ministerial colleagues were of the view that he never thought about anything but bilingualism. In any event, much later on, he could still insist to Cité Libre46 that, ‘In my opinion, Canada will either be bilingual or cease to exist.’ Gordon Robertson is quite right to observe that Trudeau did not invent bilingualism. However, even though ‘it was not a policy created by Pierre Trudeau,’47 he gave it two defining characteristics that were never far from the consciousness of officials charged with trying to make it work. First, as Robertson also observes, ‘Trudeau’s real contribution was in giving his full authority as prime minister to the “B and B” recommendations and in attaching the highest priority to them.’48 He went further by making it plain to his colleagues, as a cabinet document of the time reveals, ‘the importance of the role to be played by Ministers personally in implementing the government policy on bilingualism, and the desirability of their active support for the policy, both from the point of view of their departments and of the country as a whole.’49 A message in those terms was hard to ignore. Second, and perhaps just as important, the typical Trudeau logic was applied in dealing with the whole issue. This was not to be the habitual, take-it-easy, respond-when-you-get-around-to-it approach to the report of a royal commission. The recommendations would be dealt with in order,50 and the cabinet would reach decisions, positive or otherwise, on the large majority, including all the most significant among them. The manner in which the commission’s recommendations came out, book following book, with a decent interval between them, also lent itself to a sensibly organized approach to the issues. And once those

Language Rights

47

who were working on the problem got past matters like ‘partnership’ – in any case, not a proposition that appealed to Trudeau, one that he associated with a two-nation, distinct-society approach to Canadian political institutions – attention was concentrated for the most part on day-to-day problems raised by specific recommendations: to begin with, the main practical proposals of Book I of the report – the adoption of a federal Official Languages Act, the creation of bilingual districts, and appropriate constitutional changes. During the same time frame, another player in the language reform tableau was being pushed to centre stage: Keith Spicer was appointed official languages commissioner in 1970, and he quickly set about making waves. Spicer was not the only name Gérard Pelletier, as minister, looked at as a candidate for commissioner. The important thing was to find an Anglophone who spoke French well. (We were all agreed on that – the climate surrounding bilingualism was unfortunately such at the time that a Francophone would inevitably have been considered biased by English-speaking Canadians.) And of course to find an individual who was devoted to language reform and would have the intellectual and emotional character to bring it off. Spicer was an excellent choice, especially as the first commissioner, with his characteristically colourful manner and considerable talent in dealing with the media and keeping the bilingualism dossier up front in the public mind. The foundations of a full-blown federal reaction to the B and B recommendations were therefore in place by mid-1970. We now need to look more closely at exactly what was involved in the language reform strategy legislation The Official Languages Act is probably one of the most successful pieces of societal legislation to emerge from the federal administration since the war. No one should jump from this comment to the conclusion that I have forgotten about unemployment benefits, health care, education, family-related legislation, and other profoundly important changes that make this country what it is. I am not seeking to compare apples and oranges, and I hope no one else does. But even with this caveat, it will doubtless jolt many readers to hear any such thing about language legislation, given the enormous controversy and frequently negative press reports that ‘official bilingualism’ has generated over the past forty-odd years. However, in fact, it has brought about very significant change with a minimum of disruption.

48

Transforming Rights

Moreover, it is worth emphasizing in this context that, with the exception of one group, the principle was not the subject of partisan debate at the time of its adoption by Parliament. The exception was a relatively small number of Progressive Conservatives, close followers of Mr Diefenbaker. Otherwise, it commanded the support of all parties, and indeed of the vast majority of members of the House.51 Changes were proposed by the Opposition in the special parliamentary committee considering the bill, and several were agreed to by the government. For example, a clause was added to make it plain that the Criminal Code would not be applicable with respect to violations of the act. One might well ask who could have thought it would be; but the Opposition insisted on having it spelled out. And another was inserted to ensure that nothing in the act would ‘diminish any legal or customary right’ enjoyed by other languages in Canada. On the whole, however, careful consideration by the committee revealed no insuperable problems. In substance, the act met all the recommendations of the Royal Commission so far as the federal level of government was concerned. English and French were declared to be the ‘official languages of Canada for all purposes of the Parliament and Government of Canada.’ Members of the public were to receive services from the government in both languages. Decisions of the federal courts were to be issued in English and French, and persons appearing before them should be able to give evidence in either language. The Office of the Commissioner of Official Languages was established and the commissioner was empowered to investigate alleged violations of the act, either on his own initiative or as a result of a complaint. And bilingual districts were to be established (notionally in conjunction with the provinces) on the recommendation of an advisory board to be established for the purpose. At the same time, the government also had to accept that bilingual service could not be universal or unconditional. It would be offered in the National Capital and in ‘principal offices’ in the bilingual districts, and elsewhere where it ‘is feasible … [and] where there is a significant demand.’ Similarly, the courts could decide to issue a decision unilingually if a ‘delay prejudicial to the public interest’52 would otherwise result, and oral decisions in only one language were not prohibited. Finally, decisions of the commissioner would be recommendations only, with no executory force, and in the case of non-compliance would be reported to the government and Parliament. It should be added that this is normal practice for an ombudsman.

Language Rights

49

In 1988, a new act,53 which extensively revised and improved the original version, was brought forward by the government of Prime Minister Mulroney. Among the changes introduced were new parts V, VI, and VII, relating to measures on the language of work and the equal participation of French- and English-speaking Canadians in federal institutions. Provisions were also added with respect to ‘enhancing the vitality of the English and French minority linguistic communities … and supporting and assisting their development,’ particularly with respect to services and education in their language. And in the latter context, the federal authorities were to encourage the provinces and the private sector to undertake appropriate measures as well. The new act also provided that a remedy could be sought in the Federal Court, by a complainant or by the commissioner, in the case of a complaint that had not been adequately followed up. It was further stated that the act would have primacy over other federal legislation.54 And the responsible ministers, the president of the Treasury Board and the minister of Canadian Heritage, were required to report annually to Parliament on their official-languages responsibilities. Further amendments were introduced in 200555 to provide that federal institutions were obliged to take ‘positive measures’ to ensure the implementation of commitments to enhance the ‘vitality of the English and French linguistic minority communities’ and ‘the full recognition and use of both English and French in Canadian society.’ As a result, no one could argue that successive federal governments have fallen short in adopting the kind of legislation envisaged by the Royal Commission. Effective implementation of a number of the measures contained in the two statutes and associated federal policies is altogether another matter that we will need to look at, but any student of government will confirm that there is always a gulf between one and the other. bilingual districts Even in respect of the proposed bilingual districts, the Trudeau government could not be faulted for want of trying, although in the end they felt obliged to throw in the towel. The reader will recall that, in the eyes of the commission, the bilingual districts – federal and provincial – were thought to be ‘the cornerstone of our proposed system.’ What they would involve in practice was ‘special areas within which a defined language regime would be established for federal, provincial and local jurisdictions.’ Using the 10 per cent minority requirement they had decided upon, they had come up with fifty-four census districts

50

Transforming Rights

in which federal and, it was hoped, provincial and municipal services would be offered in both languages. As it turned out, none of this would come to pass, and indeed bilingual districts as a concept were eventually removed in the drafting of the 1988 Official Languages Act. But those of us who were working on these matters at the time were not clairvoyant, and most were optimistic to begin with, as the Bilingual Districts Advisory Board got under way at the beginning of the 1970s. Based on 1961 census data, the board’s report recommended the creation of thirty-seven districts, including all of Quebec and New Brunswick. (No districts were proposed for either Newfoundland or British Columbia.) Public reaction was not encouraging. Although Francophone minorities in the English-speaking provinces were in favour, as might be expected, their Anglophone compatriots leaned rather more towards indifference or outright hostility, and the majority response in Quebec was generally negative. Provincial government reactions were not dissimilar. New Brunswick’s attitude was reasonably positive. Quebec’s varied from apparent willingness to consider a province-wide district, at least in private communications to the federal authorities, to eventual publicly proclaimed hostility. Ontario also showed some interest, but later backed off. And Saskatchewan and Alberta, particularly the latter, were largely negative from the beginning. It should be noted, moreover, that the provinces, like the public, consistently confused proposed federal districts and potential provincial ones. This is perhaps not surprising since, although the latter were never really in prospect, the Royal Commission itself had spoken of them as going hand in hand. As a result, there was a negative attitude not only to the ‘invasion’ of provincial jurisdiction but also to the whole idea. Put more bluntly, people simply did not believe the line that federal bilingual districts were just that, and no more than that. As in the case of the argument that ‘institutional bilingualism’ was different from ‘individual bilingualism,’ many thought they were being had. In the circumstances, some federal ministers and officials began to get cold feet. The Department of Justice in particular saw administrative and political difficulties – with the provinces, the English-speaking public, and the civil service unions. Their minister, John Turner, wrote to the prime minister in early 1972 to call into question ‘the whole concept of bilingual districts and whether … that concept is one that is now necessary and desirable and should be fully implemented.’56

Language Rights

51

Further, for the doubters, many of whom had been far from enthusiastic to begin with, there was another excuse for backing off. The 1971 census figures would be coming out in the summer of 1972, and it could be argued that it made more sense to get an up-to-date demographic picture before deciding one way or another. The delay involved, so the reasoning went, would not be substantial. This last argument was not altogether accurate, and was also to a degree disingenuous. After all, a new board would have to be appointed, organize itself, hold consultations and hearings in the provinces, and prepare a report, which would then have to be considered by officials and by cabinet. In the view of those working on the matter in the Secretary of State’s Department, all this could put off a decision on new districts by a couple of years or more. In any event, politically expedient procrastination looked as though it could plausibly be explained away – at least to some observers – as no more than common sense. So it came about that the government decided to appoint a second advisory board, under the chairmanship of Professor Paul Fox of the University of Toronto, to re-examine the matter in light of the 1971 census data. Though hardly courageous, the decision was probably inevitable, given the warning signs for bilingualism that were then apparent. And not only the naysayers were troubled about the districts. Even the stoutest proponents of language reform themselves had their doubts. Perhaps the most striking was Keith Spicer, the commissioner of official languages, who subsequently weighed in with a negative appraisal.57 According to Mr Spicer, the districts might be ‘unnecessary,’ because service to the public could be adequately protected under Section 9(2) of the act, which provided for service in the two languages wherever there was ‘significant demand,’ a factor that had perhaps been lost sight of, in his view, by those who had been ‘excessively fascinated by the notion of bilingual districts as a cure-all.’58 As it turned out, the report of the Second Advisory Board was not published until November 1975. It recommended the proclamation of thirty districts, at least one in every province but British Columbia. It also proposed the provision of services, though not formal districts, in certain large urban areas, and suggested that Montreal ‘should continue to offer its residents federal services in both official languages,’ as it had always done.59 By this time the government probably had little stomach left for the whole enterprise. Nevertheless, it did commit itself to ‘the principle of

52

Transforming Rights

proclaiming some districts’ and to treating Quebec on the same terms as other provinces in regard to the criteria to be used in establishing districts. Spicer observed rather tartly that he remained of the view that ‘the political and psychological disadvantages of bilingual districts still probably outweigh their symbolic value,’ and wondered aloud whether the government’s ‘apparently agonizing review’ of the concept might not lead it to drop its commitment.60 In the end, this is precisely what happened. Many years later, Gordon Robertson concluded that ‘the government finally decided that establishing the districts as a matter of law would be more provocative than helpful.’61 By mid-1977, in a major policy statement on language,62 the government reconfirmed that bilingual districts had been abandoned as a concept that the federal authorities would seek to sell to the provinces and the Canadian public. Instead of looking to the establishment of districts ‘where … services were to be provided in both official languages,’ the government asserted, federal agencies were in fact ‘now providing [such] services in virtually all areas of the country that might be so designated.’63 There was some truth in this contention, and indeed something resembling such districts was later to emerge in other guises and with other names, at the federal and even provincial levels.64 The question remains, however, whether the districts as such, as originally conceived by the commission, would have made a genuine contribution to the linguistic reforms envisaged by their proponents. In a word, would they have made a substantial difference? The short answer is probably not. It was not bureaucratic constructs that were needed, however sophisticated, and however successful their progenitors had seemed in Finland. What was essential – and remains so every step of the way – was a clear commitment from government, and this rose and fell with the political tides. In any event, for the moment, as I put it in my 1978 report to Parliament as official languages commissioner,65 the notion of bilingual districts had become ‘moribund,’ a situation that my predecessor had described as ‘unlikely to upset many.’66 constitutional negotiations – the victoria conference Meanwhile, on the constitutional front, it was the best of times; it was the worst of times. Once again, in June 1971, a hardy band of first ministers, ministers, and officials had sat down together, this time in Victoria, British Columbia, to try to hammer out a solution that had long eluded their predecessors. In spite of earlier setbacks, and the not altogether encouraging federal-provincial first ministers’ discussions in the late

Language Rights

53

sixties and at the outset of the seventies, there was a determination to try again. And in spite of Prime Minister Trudeau’s initial misgivings about constitution making, he was prepared to give the effort his personal commitment and the characteristic combination of reason and energy that he brought to measures he considered significant for the future of the country. After lengthy preparatory discussions between the minister of justice and the provincial authorities, the hope of a deal was more tangible – or so it seemed – than it had been for some time. It will be recalled that the commissioners had recommended that English and French be declared the official languages of Canada, and that section 133 of the British North America Act be extended to provide for their use in the legislatures and courts of Canada and the provinces of Ontario, Quebec, and New Brunswick, and in other provinces reaching a threshold level of 10 per cent minority population. They also proposed that measures be agreed for the establishment of bilingual districts and English-French services on the basis of similar criteria. And finally, they recommended an additional section 93A of the British North America Act, to provide for the extension of English and French minority-language schools. The package worked out in Victoria, though not as extensive as the commission’s proposals, was nevertheless a good starting point, and would have served as a foundation on which to build a more substantial edifice with the passage of time. It proposed, as the commission had, that English and French be recognized as the official languages of Canada. It went on to provide for the use of the two languages in the debates of Parliament and seven of ten provincial legislatures,67 and for federal and provincial statutes to be published in both languages. If a province printed them only in one language, the federal government would accept the responsibility of publishing them in the other. In Quebec, New Brunswick, and Newfoundland, both ‘versions shall be authoritative.’ Individuals would be able to plead in either language in federal courts and those of Quebec, New Brunswick, and Newfoundland. Services could be obtained from the ‘head or central office’ of federal government agencies and those of Ontario, Quebec, New Brunswick, Prince Edward Island, and Newfoundland. They would also be provided by federal offices where there were ‘substantial’ minority-language communities, it being understood that the government would define the limits of such areas and what constituted ‘substantial’ numbers.

54

Transforming Rights

Finally, it would have been agreed that Parliament or provincial legislatures could provide for ‘more extensive use’ of the two languages ‘within their respective legislative jurisdictions.’68 There had also been lengthy discussions, within the federal government, and at various federal-provincial meetings, of the possibility of including a provision in the draft text with respect to minority-language education. In the end, however, it was not possible to reach agreement, and the clause was dropped. This was undoubtedly a major setback in terms of the emphasis quite naturally accorded to instruction in the minority language by the commission, but it cannot be thought surprising in the circumstances of the late sixties and early seventies. Indeed, minority-language education in French, and to a degree even in English, was to remain among the most intractable problems with which governments and the courts would have to deal for some time to come. Regrettably, none of this was to come to pass as a result of the Victoria round, for the proposed charter was rejected by the Government of Quebec in late June 1971. The immediate point of disagreement concerned social policy programs and was not directly related to language policy. Looked at more broadly, however, it doubtless had as much to do with the overall negative reaction in nationalist circles in Quebec, which in turn was linked in part to their unwillingness to agree to any pan-Canadian constitutional reform. Whatever the reasons, the country was to wait more than a decade before decisive action was finally taken. constitutional amendment and the charter of rights and freedoms In 1982, after a series of political alarums and excursions – premiers’ conferences, parliamentary committees, draft bills, and declarations – agreement was finally reached. Nine provinces and the federal government brought forth a constitutional text containing a Charter of Rights and Freedoms, encompassing a number of the language guarantees that the Royal Commission had sought. Section 16 of the 1982 document asserts that ‘English and French are the official languages of Canada,’ having equal status for all purposes of Parliament and the Government of Canada. It establishes a similar regime for New Brunswick, and provides in consequence, in sections 17, 18, and 19, for their use in the two legislatures, in their statutes and records, and in their courts. In 1993, by

Language Rights

55

a further constitutional amendment (subsection 16.1 of the Charter), the English- and French-speaking communities of New Brunswick are declared to have equal status, and are entitled to distinct educational and cultural institutions. The Charter also accords members of the public the right to federal services in either language from head and central offices, in areas where there is a ‘significant demand’69 or where the ‘nature of the office’ makes it ‘reasonable’ that they be made available. (Note that ‘areas with a significant demand’ moves in the direction of bringing back bilingual districts under another name.) In New Brunswick, they would have the right to service from any government office in the province. Further, it is stated in section 21 that nothing in the preceding sections, 16 to 20, should derogate from any rights with respect to English or French existing by virtue of other provisions of the Constitution. A separate section 23 offers guarantees on ‘Minority Language Educational Rights.’ In areas where they are in the linguistic minority, citizens of Canada whose mother tongue is English or French, or who themselves received their primary education in English or French in Canada, or who have ‘any child’ who is receiving or has received primary or secondary school instruction in English or French, have the right to educate ‘any or all’ of their children in that language. The second and third of these criteria apply in Quebec, but the first – mother tongue – will not until so decided by the legislature of that province. It also is worth pausing to look at other aspects of this formulation. First, the limitation of the right to ‘citizens’ has caused problems, as has the qualification ‘received primary or secondary education,’ and the meaning of this phrase for individuals living in Quebec who have studied in immersion French schools elsewhere. These and other complexities were to cause continuing difficulties for minority language speakers. In all cases, the provision of minority-language education is subject to the qualification that there must be ‘sufficient numbers’ of children to benefit from it. It is also specified that, ‘where numbers warrant,’ such instruction is to be provided in ‘minority language educational facilities.’ This last provision, especially as it has been elaborated upon by the courts, has been of major significance in the slow progress of minority-language education rights, in some instances to a degree beyond what even the commissioners envisaged. Section 27 provides that ‘this Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.’ This statement has come a very long way

56

Transforming Rights

indeed from the original mandate of the Royal Commission, citing the ‘basic bicultural character of our country and the subsequent contribution made by other cultures,’ and comments made by the commissioners with regard to this same subject. In the nineteen sixties, when the commission was undertaking its enquiries and preparing its reports, the constitutional entrenchment of multiculturalism was far from their thoughts. Such a fundamental change of perspective in a relatively short space of time is nothing short of remarkable. Finally, it is interesting to note that section 33, the so-called notwithstanding clause,70 which enables the federal or provincial governments to set aside certain rights ‘notwithstanding a provision’ of the Charter, does not apply to language rights or to minority-language education rights. Some observers may find this puzzling. After all, section 33 does apply to various ‘fundamental freedoms’ – for example, freedom of expression – and ‘legal rights’ – life, liberty, and security of the person – and they might consider them more significant than language rights, insofar as one can establish a hierarchy of rights. All this was to the good. Except that the Government of Quebec was once again odd man out. If opinion polls are any criterion, the Charter is and always has been popular with the people of Quebec. But it was bound to fail with the separatist government then in power, and fail it did. The whole sorry story that ensued – attempts to forge agreement in the abortive Meech and Charlottetown accords; further efforts towards interprovincial understanding; yet another referendum, and threats of more to come; in a word, twenty-five years of dispute that has at times hidden genuine progress in the field of language law and policy – is largely beyond the scope of this study. What is my concern, however, is to try to assess how far the federal and provincial authorities may be said to have gone to meet the recommendations set out in the Royal Commission report, and to live up to their own constitutional and legislative commitments. making language reform work The Federal Administration – Service to the Public As I have noted, an Official Languages Act was brought in by Parliament in 1969 that by and large met the goals described by the commissioners. Indeed, the advances achieved in the revised 1988 act probably surpass anything they proposed. From this perspective, the federal report card is a good one.

Language Rights

57

Although execution has often been spotty and slow, there have nevertheless been vast changes since the early days. As Language Commissioner Dyane Adam observed in 2004, ‘Until the 1960s, English unilingualism was viewed as a rational and efficient way to operate within the federal public service.’71 In the forty-odd years since then, among other things, ‘bilingual capacity has increased’; ‘various ways of serving the public have been designed’; ‘consumer products carry bilingual labels’; and ‘the right to be heard in either official language in court has been established.’72 In other words, in the area of assistance to the public, we have been moving, albeit slowly and at times uncertainly, towards a relatively bilingual regime. While not all federal services are available in both languages, it is rare that someone writes for assistance today and does not receive a reply in the same language. Telephone service may be more problematic, but it is much better than it was. At the same time, the commissioner of official languages has repeatedly identified shortcomings that the federal authorities seem at a loss to overcome, however much they may announce and re-announce their good intentions. The problem remains the persistent gulf between principles and practice. One can pick up a government document published at any time in the last thirty or forty years – there are literally dozens of them – and one will find that Canada’s ‘linguistic duality’ is a pillar of our federalism that ‘lies at the heart of Canadian identity’ (Speech from the Throne, 2001). Equally, one can pick up any one of dozens of the commissioner’s reports over the same time frame and read that implementation is lagging. This was true in my time as commissioner, beginning some thirty years ago, and it is true today. Thus, for example, the commissioner’s Report on National Service to the Public in English and French73 concludes on the basis of a four-year study, including visits ‘to more than 500 federal offices designated bilingual,’ that ‘despite some limited progress, the delivery of bilingual service, and especially service in French by designated offices, leaves much to be desired.’ And equally a constant refrain of the commissioner’s office over the years is that, ‘despite the willingness of most managers … to take the necessary corrective measures … very few federal institutions have succeeded in offering service in fact.’74 Looking at the broader picture, there have also been repeated admonitions from several language commissioners to the effect that ‘The government must strive to place the provision of bilingual service at the very heart of the service ethic in the public service and at the heart

58

Transforming Rights

of the culture of its institutions as a whole.’ For ‘Recognition of English and French is part of the federal basis of our country and this fact must be recognized.’75 Both of these statements, I might add, could have come straight out of the reports of the Royal Commission itself some forty years earlier. The problem with all of this is the mistaken notion (often unconscious) that proclamations can be identified with reality, that because a Throne Speech says that something is important, or the clerk of the Privy Council reports to the prime minister that something is a priority, there will in fact be results at the working level. Statements and assertions about priorities are not without significance, of course, but they are worthless unless they are followed up by measures that are politically tough to undertake. A concrete example: the commissioner’s study reported that the Canadian Centre for Management Development,76 the pinnacle of the government’s effort to push all the correct management-training buttons, had been offering courses for some time for aspiring and often quite senior management, in the best modern style. But it noted that a review of the curriculum showed that ‘little time is offered to the values related to linguistic duality.’77 One course for management trainees, it appears, ‘has a section on the official languages,’ but ‘no other course includes all the elements relating to the foundations of Canada’s linguistic duality.’ What does this reveal about the reality of the senior mandarins’ priorities? One thing is clear: they do not offer pride of place to official languages, whatever they may say about them on ceremonial occasions. I might add that a more recent high-level task force report to the prime minister on the ‘the renewal and future development of the Public Service of Canada’ also makes little or no reference to the bilingual character of Canada and the consequences of that situation for its public service.78 The closest I can see to any interest in this matter, or indeed anything other than process-related considerations, is a passing reference, in a section of the report entitled ‘What Next,’ to ‘the importance of having a Public Service workforce that draws on a diversity of origins, cultures, ideas, experiences and perspectives from all regions of Canada.’ Even here, there is no concern shown with Canada’s status as a country with two official languages. What must never be lost sight of, if the truth be told, is that we are not really talking about ‘bilingualism’ but about the problem of dealing with the French language in the public service. In other words, hid-

Language Rights

59

ing behind all the bureaucratese – ‘imperative staffing,’ ‘designated offices,’ and a style of discourse, even from the commissioner’s office itself, that suggests that organizational structures are the key to the puzzle – lies the reality that ‘the problem of equality of services in both official languages is, above all, a problem of availability of service in French.’79 This may seem blindingly obvious to the uninstructed, but it is far from it for those who give the appearance of believing that organizational-management prestidigitation can resolve all problems. Or that high-sounding statements about ‘values,’ ‘planning,’ ‘mission,’ ‘accountability,’ and so forth, can substitute for substance. To take one other simple illustration: ‘active offer of service’ in the client’s language has been a buzzword in government language circles for many years. In practice, it is very simple: it must begin with appropriate signage in both languages and, as the new language commissioner has put it, ‘a bilingual greeting by an employee when communicating with a member of the public.’80 I am sure that many Canadians can attest from personal experience that hearing the two languages in a telephone or face-to-face greeting makes it much easier to go ahead in the language of one’s choice, even if one speaks both, let alone if one is hesitant in one or the other. And yet, despite mountains of information and exhortations to this effect, both Mr Fraser and his predecessor have reported that this type of service is actually dropping. As Ms Adam remarked, ‘active offer’ of service, is still the ‘Achilles heel.’81 Similarly, having bilingual people in jobs where both languages are needed – telephone answering, say, or a reception desk – is an equally obvious requirement. People in management positions and in personnel branches in bilingual regions, senior executives, ambassadors, and generals should also pull up their socks. It is simply unacceptable in a country with two official languages that these individuals should be unable to supervise their subordinates in their language or represent their country or operate in the most highly placed areas of government without an adequate knowledge of English and French. I cannot emphasize too much, however, that this does not mean that any and all jobs in a government office must entail knowledge of both languages. There is no need to take a doomsday view of this requirement, either in terms of the famous ‘merit principle’ or with respect to areas of the country where people do not have ‘an opportunity to learn French.’ No manager in his right mind wants to hire someone who is not fully competent just because he can handle both languages, any more than he wants to hire an incompetent relative. Of course there are

60

Transforming Rights

exceptions, but as a general rule, the merit principle is not in danger in this country, for either linguistic, or political, or nepotistic reasons. And with regard to Canada’s regional differences, it is simply a myth that there are large numbers of bilingual positions in areas of the country where they are not necessary. Bilingual positions outside the National Capital and certain areas of Ontario, Quebec, and New Brunswick are in fact small in number and moreover are quite closely related to the statistics for the minority population. Don’t worry – Canada Post personnel in Red Deer and Rimouski are not in danger of creeping bilingualism. A sufficient number of people to meet the public, and effective office arrangements to make sure that they are not all off on coffee break when they are needed, are all that is required to provide bilingual service. This is not rocket science, but the authorities have been wrestling with the problem for forty years without flooring their opponent. In other words, the key to the operation is ‘bilingual staffing’ or, in plain words, having some people in place where the clientele uses both languages who actually speak English and French. Remember once again, this is a simple matter, even if the politics of the solution is not. And, once again, dressing the matter up with fancy administrative arrangements is not the way to go. Take the matter of ‘bilingualism advisers,’ the prosaic title they once enjoyed, or ‘official language champions,’ as they are now rather romantically called. These individuals are supposed to monitor implementation of the language reform program in a government department or agency and generally to encourage getting on with the job. But their successes and failures are dependent not on what one calls them but on how close they are to senior management, especially the deputy minister, and I am not convinced that this is the case in many ministries. I think Commissioner Adam suspected this too when she said, ‘If the champions raised their profile in their organizations, they could play a much more active role in the implementation of the official languages program and also exert greater influence on their deputy ministers, who are responsible for the program.’82 And, as she went on to note, employees must also ‘be reminded regularly, and not just once or twice a year … that the language aspect is an integral part of service delivery.’83 This reminder, I should add, must also come from the top or close to it. Of course, especially having been there myself, I am very much aware that deputy ministers and heads of various government agencies are plagued with a plethora of demands – from the auditor general, the lan-

Language Rights

61

guage and human rights commissioners, the privacy and information commissioners, and a host of other watchers and helpers – as if it were not already enough to run their organization and look after a demanding minister. But the government cannot have it both ways: if official languages are a major priority at the heart of our national character, as the authorities say they are, then they have to be accorded that place in practice. And that means effective implementation or it means nothing. To quote the commissioner’s conclusion in the study I have just been citing, ‘leadership and unambiguous commitment’ are essential.84 But they have to be present elsewhere than in exhortations from that office. The Federal Administration – Monitoring Performance The Royal Commission made it plain that for language reform to work would require the creation of an agency with a mandate to monitor the implementation of the Official Languages Act, and to keep an eye on government performance generally. That agency would also need to exercise an ombudsman function by taking complaints from individuals who believed their language rights to have been violated or, as necessary, launching an investigation into the state of language rights and reform in a given institution and preparing a report on the results. The Trudeau government’s response was positive, and the position of official languages commissioner was created by the Official Languages Act in 1969. As I have noted above, the commissioner began his work the following year. In my time as commissioner, we ran a smallish shop by government standards: a staff of a couple of hundred, with a number of them at a half-dozen regional offices. As commissioner, I was both an administrator, responsible for making the office work, and an itinerant preacher going about talking to editorial boards, non-governmental organizations (NGOs), universities, open-line shows, you name it, trying to get people to understand, if not to convert them. But we did not have policy responsibilities, as had been the case in my time at the Secretary of State’s Department. The commissioner is required by the act to ensure that the status of the two official languages is respected by government departments and agencies, to take complaints, to conduct studies, to make recommendations, and so forth, but not to develop government policy. The Office of the Commissioner of Official Languages (OCOL) has always presented an interesting split personality. On the one hand,

62

Transforming Rights

dealing with complaints sometimes presented difficult and intricate problems; others, frankly, could border on the trivial; but all had to be dealt with, and that required dedicated teamwork on the part of the staff. On the other hand, it was crucial that the commissioner try to keep language reform in the public eye and to persuade at least a reasonable proportion of Canadians of its importance to the well-being of the country. The latter, at least during my seven years in the job, took up a great deal of time. In that context, my travels were in some degree a novelty (although my predecessor also travelled extensively), in the sense that there is nothing in the law that speaks directly to this aspect of the job. I tried to cover all the bases in each province. I thought it was central to the selling side of the job, and to promoting understanding, in so far as one could in a sometimes-unfriendly environment The office of the commissioner has now been in existence for more than thirty-five years. I hope I can say, without self-promotion, that it has enjoyed at least a modest degree of success. In part, this is due to the clear-sighted judgment of the Royal Commission, which saw that the commissioner must be entirely independent of government. This means, in the first place, that he should be an officer of Parliament, appointed with the consent of the opposition parties, and dismissible only by parliamentary resolution. It also means that he should report directly to the speakers of the House of Commons and the Senate, rather than to, or even through, a minister. His term should also be long enough that he will not have to be worrying about his next job. Seven years with the possibility of reappointment was recommended by the Royal Commission, and agreed to by the government. The auditor general serves for a ten-year term, without the possibility of reappointment. I have often wondered whether this would not be a better arrangement for the languages commissioner and other ombudsman-like officials, such as the privacy and information commissioners, both of whom also serve for seven years, renewable. In any event, I can agree that seven years is a reasonable compromise: the important consideration is that such persons be dismissible only by Parliament. And finally, the commissioner’s salary should be fixed at the level of that of a judge of the appropriate court, rather than decided by the government, if it is to be clear that he cannot be influenced through his pocketbook. Doubtless all this seems quite straightforward, to the point of being obvious, but in fact the government has not consistently applied these principles, with different offices subject to different arrangements. The human rights commissioner, for example, did not initially report to Parliament directly, although that has now been recti-

Language Rights

63

fied. However, his salary – unlike that of the language commissioner – is still in the hands of the prime minister, and so can be used as a means of expressing displeasure towards the incumbent. The Provinces – Service to the Public It is ‘unfortunate,’ Justice Michel Bastarache has observed, with a touch of understatement, that ‘only New Brunswick has agreed to be bound by sections 16 and 20 of the Charter … since the majority of services provided to the public are provided by provincial institutions.’85 The resulting situation is very uneven. Quebec, as we are all aware, is governed by Bill 101, which provides that French is the official language of Quebec but does allow for certain services, signage, and so on, ‘in another language.’ In Ontario, the French Language Services Act86 ‘goes a long way towards official bilingualism, but does not actually make French (or English) an ‘official language.’87 It provides that ‘a person has the right … to receive available services in French’ from government head offices and any other office that is ‘located in or serves an area designated in the schedule,’88 a provision that includes Ottawa and Metropolitan Toronto, among others. This is all very well in principle, but if I were a Francophone, I would not want to test that promise too often. And where does all this leave us in practice? It is impossible to go into the details of the language aspects of the vast range of government services offered by each of our provinces without going far beyond the limits I have to set for myself in this essay. However, we can, I think, sum up with the observation that the three provinces do reasonably well in regions where the minority is concentrated – northern New Brunswick, for example, or Montreal and the Eastern Townships, or areas in Ontario along the border with Quebec. Elsewhere, the regime is much more spotty in practice, and likely to stay that way. Still, to be fair, even that reflects a considerable degree of progress from the state of affairs that existed, say, in Moncton under the administration of Mayor Jones in the 1960s or the situation in Ottawa not so very long ago. Beyond those three provinces, the situation for the language minorities can only be described as less generous than they are entitled to. Even so, there have been improvements, as we shall see below with respect to education. For it is of course education in their own language that is by far the most important ‘service’ that the provinces can provide to their linguistic minorities. The Private Sector – Service to the Public I shall return later to the language regime in Ottawa, in discussing the commission’s recommendations in

64

Transforming Rights

Book VI, The Federal Capital. Outside that region, in cities like Montreal and Toronto, it is difficult to generalize. In Toronto, my home town, I have the impression that service in French is available in the odd restaurant or hotel, provided one chooses the right ones, but not as a general rule. Nevertheless, French is heard more frequently on the streets and in public places (no doubt because Francophones are less insecure about using it), and of course there is a much more active Francophone network of cultural and other amenities than there was in the past. Montreal is a special case. When I was language commissioner, I was continually being told on open-line shows and by members of editorial boards outside Quebec that it had become ‘impossible’ to get anyone to speak English in that city. My own experience has been very different. I have never had a problem being served in English in hotels, restaurants, or department stores, perhaps with the exception of a small, out-of-the-way shop where an individual really has trouble with the language. As I shall argue below, it is true that French is the official language, but there is a considerable difference between language law and language practice. Moving west and east, save for parts of New Brunswick, one quickly encounters barren terrain, except within the Francophone communities themselves, and enterprises based on their efforts. Of course, this is an important ‘except,’ for there are many activities of this sort from coast to coast that were non-existent when the Royal Commission began its work and that flourish today. Often enough they have been supported and continue to be by one or another federal grants program, as well as by the provincial authorities. On broader national issues, legislation and regulation have been necessary. To illustrate, there has been very considerable progress on bilingual labelling, progress that would in all likelihood have been impossible without legislation and regulation. There was a good deal of fuss at the time about its being unnecessary and costly. If I suggested as commissioner that the Europeans seemed to be able to manage labelling in several languages without difficulty, I was told that that was different – a matter of commercial response to demand, whereas the Canadian authorities were ‘imposing’ it. Of course, the authorities in Brussels were also ‘imposing’ various regulations, as were national authorities, but this point never seemed to get through to Canadian critics. If I said that health and safety considerations alone seemed to me good reasons for the policy, the answer was that all these

Language Rights

65

people spoke English anyway, and it was just another example of a federal boondoggle. And so it went. But more than thirty years later people appear to have got used to it and seem to be no worse off for having to turn the package around if they are offended by the other language. Cultural Services to the Public If I may call them so, the ‘cultural industries,’ particularly radio and television, are another striking example of progress towards a more equitable language regime. Although there was a battle royal on more than one occasion, particularly in the west, when it came to removing an American TV station, or, heaven forbid, sports programming, in favour of a French-language station, when it finally was done, people got used to it. More or less, I suppose I should add, for it was not so long ago that loud complaints were to be heard about adding another French channel outside Quebec – a reaction that apparently never occurs to English speakers when they tune in English CBC in Quebec City. Nevertheless, I think we can now take considerable satisfaction in the French radio and TV programming available outside Quebec. Where I live, in Ottawa, for example, there are as many French channels available as there are on off-air TV in our other home in the south of France. And once again, I must point out the obvious: there is no lack of English-language programming across the country. The Courts – Language of Service Language reform in Canada would not have advanced at anything like the same pace were it not for the paramount role played by the courts, principally the Supreme Court of Canada. The courts have also made considerable strides in their own working languages, the language of their judgments, and their capacity to provide the latter to the public in bilingual form. To my way of thinking, the Supreme Court was a much less bilingual institution prior to the adoption of the Official Languages Act, and even eight years later when I began my term as commissioner of official languages. The prompt, bilingual publication of judgments is now accepted as commonplace, but there was considerable fretting initially that important issues could be sidetracked if they were delayed for language policy reasons. The answer, very obviously, was not to delay them but to hire sufficient competent staff to ensure that they were translated in a timely manner, and that was subsequently done.

66

Transforming Rights

The use of both languages before the court, and simultaneous interpretation, which remained controversial to a degree even up to the time of Bora Laskin’s term as chief justice,89 have also become routine. And a number of the court’s own judgments, as well as judgments of the lower courts, have improved the lot of minority-language participants in the justice system. That this was not always so is reflected in another in the series of twists and turns to which we have become accustomed in the implementation of language reform. In 1986, in the early days of the Charter, the Supreme Court handed down a judgment with what has been called the ‘curious conclusion’ that, while one has the right to plead in either official language, this ‘does not convey the right to be understood by the tribunal one is addressing.’90 The judgment also put forward the argument that language rights are the result of a ‘political compromise’ and therefore seemingly not quite on a par with fundamental rights. This conclusion has been the subject of ‘practically unanimous criticism,’91 and in subsequent judgments the court has taken its distance from both these ideas, generally adopting a much less restrictive approach to language rights.92 In any event, the matter of the right to be understood was settled legislatively in amendments to the federal and New Brunswick official languages acts.93 d) Education94 The commissioners’ adventure in the world of bilingualism in education begins with the same statement that ended their discussion of language rights in Book I: ‘French language and culture will flourish in Canada to the extent that conditions permit them to be truly present and creative.’95 I use the word ‘adventure’ advisedly, for it is a bold account, one in which the commission gave free reign to its desire to examine in depth the intricacies of each of these notions – language, culture, flourish, creative – all of which find their way into the mix. Some parts of what they had to say have stood the test of time, others less so. ‘Equal partnership,’ they again emphasized, was the ‘mainspring’ of their mandate, and ‘Equal partnership in education implies equivalent educational opportunities for Anglophones and Francophones alike…’ It was an ‘ideal,’ not achievable in its entirety, but ‘it is nonetheless possible to propose measures which can reduce the present gulf between reality and this ideal.’96 The logical outcome was the creation of a net-

Language Rights

67

work of adequate minority-language schools. But it was also understood that the extent to which parents would exercise their right to send their children to such schools in practice would be ‘governed by what is practically feasible.’ Finally, parents ‘should have the option of choosing which school [English or French] their children should attend.’97 The commissioners further observed that this may seem ‘obvious’ to Canadians but needed to be said because it was not the case in some bilingual countries. In fact, exactly who had the right to attend minoritylanguage schools, and the governance of such schools, was in the future to become an issue that was far from ‘obvious’ and that was surrounded by controversy, both in Quebec and in the English-speaking provinces. Viewed from the contemporary standpoint, much of this construct may seem a commonplace, at least for the principles involved; but the picture could scarcely have been more different in the mid-nineteen sixties. The changes that have come about over those years are in fact eloquent testimony to the prescience of the commission; to the willingness of the federal authorities to respond to their recommendations; to the tenacity of the French-language minorities themselves; to the cooperation of the provinces (however grudging at times); and not least to a considerable push from the courts. These elements will be sketched in below; but we must first look briefly at the situation that prevailed at the time. In Quebec, the commission noted, Anglophones had ‘access to complete educational opportunities in their own language,’98 in an essentially separate program extending from the outset of primary school to the university level. Indeed, they went further, quoting the Parent Commission to the effect that ‘no one today … would think of contesting’ this right. This was to reckon without Bill 101, passed less than ten years later, and various restrictions placed on the freedom of parents other than Anglophones who had themselves been educated in that province to have their children educated in the language of their choice. Outside Quebec, the French-language minority at that time was obliged to live with a regime dominated by English. With few exceptions, French-language education was seriously handicapped, not to say non-existent, with what the commission rightly termed ‘fateful consequences’ for the minority. Although there were a few more positive developments to record at the time of their report, in the nineteen sixties, the commissioners observed that it remained on the whole a

68

Transforming Rights

‘gloomy picture’ for most minority children.99 ‘It is obvious,’ they concluded, ‘that major changes will be required …’100 These changes would necessitate, first of all, that ‘public education … be provided in each of the official minority languages at both the elementary and secondary levels …’ in the proposed bilingual districts.101 The minority language would serve as the medium of instruction, and the majority language would be taught as a subject. Outside the bilingual districts, the problem would obviously be more difficult in practice, but parents’ rights should nevertheless be ‘clearly established,’102 and provincial authorities should take appropriate steps to clarify under what conditions local school boards would be required to provide minority-language facilities. Similar arrangements should be made in major urban centres ‘whenever the number of minority-language students … makes this practicable.’103 In all cases, it should be an objective to preserve the ‘linguistic and cultural character’ of these schools; quotas might therefore need to be established, ‘limiting, where necessary, the numbers of majority-language students attending these schools.’104 In this context – the importance of preserving the ‘linguistic and cultural character’ of Francophone schools – it should be observed in passing that, given their usually sceptical attitude towards the good will of the majority, the commissioners were unaccountably optimistic, so it seems to me, in recommending that a single school board be responsible for all schools in a given district, essentially on the grounds of simplicity and administrative efficiency.105 The governance of Francophone schools, and Francophones’ control over their own institutions, has turned out over the years to be one of the most sorely controversial issues in the entire minority-language education dossier, and one that is not fully resolved to this day. That the commission should have skipped over the problem so lightly, in spite of recognizing that a ‘separate school board for the minority-language schools offers greater assurance that these schools will reflect the linguistic and cultural interests of the minority,’106 is surprising. Finally, the commissioners recommended that arrangements would need to be made at the postsecondary level. This could involve reinforcing existing institutions – for example, the University of Moncton. In other areas of the country, measures could be put in train to increase the number of degree programs offered in French – for example, at Laurentian University and the University of Ottawa. And a full analysis of needs might be undertaken elsewhere – for example, in the western provinces, with a view to expanding existing programs. Where other

Language Rights

69

solutions were not feasible, federal grants should be made available to students to enable them to study in French outside their own province. All this would of course need to be financed, and the obvious questions were who should pay, and how much. Although education was a provincial responsibility, whether in the majority or minority language, the federal government had a special responsibility vis-à-vis the minorities, and should therefore rightly be expected to defray the extra expenditure incurred in providing minority-language education.107 These costs evidently could not be established with any degree of precision by the commission itself, but it was their conclusion that a reasonable ‘approximation’ would be ’10% of the average cost of education per student within the province.’108 There should also be a 10 per cent federal grant for teacher training institutions in Ontario, Quebec, and New Brunswick, and for a similar establishment which they recommended be created for the western provinces. And on a lesser scale (10 per cent of the provincial grant), federal subsidies should also be made available to the provinces for additional costs involved in maintaining minority-language universities. second-language learning in canada As the commission perceived the state of second-language learning in Canada in the nineteen sixties, the ‘remarkable fact’ was that a ‘high proportion of Anglophone students are studying French … even where it is not compulsory.’109 Less fortunately, however, it appeared that they were not learning a great deal, for ‘There was general agreement in the briefs presented to us that our English-language schools are not graduating students who can speak French.’110 At that time, the commissioners noted, English was a compulsory subject in French schools in Quebec. Further, one might suppose that, as a minority with language contacts that were often not available to Anglophone students, a somewhat higher proportion would be making reasonable progress with the language. Nevertheless, they thought that it would be unwise to assume that the ability actually to speak English with some degree of fluency was generally within the grasp of young Francophone Quebeckers, any more than for their Anglophone counterparts elsewhere. The commissioners recognized that improved teaching methods would be helpful in dealing with this situation, but their principal interest was to ensure universal access: all children should have an opportunity to study their second official language. They recommended as

70

Transforming Rights

a result that it should not be optional, but ‘obligatory for all students in Canadian schools.’111 The aim should be to improve oral skills, in the first instance, a priority that they believed was ‘accepted by most Canadians.’112 Emphasis should also be placed on the Canadian context, which would enable students to go beyond mere language learning to a better comprehension of the other cultural group, and lead to the replacement of misleading stereotypes by ‘an awareness of the complexity of our two societies.’113 Finally, the commissioners were of the view that language learning should begin early and carry on as long as possible: it should be introduced as early as Grade 1 in Englishlanguage schools and Grade 3 in French-language schools, and should continue until the end of secondary school. The training of second-language teachers was also of concern to the commission. It was therefore recommended that training centres – new institutions designed specifically for the purpose – should be established by the provinces,114 and that an interprovincial bureau of secondlanguage training centres, financed partly by the federal authorities, should be created to ensure coordination. A ‘one-year transfer programme for university students specializing in the second language’ should also be set up, with federal grants covering the costs. And lastly, the federal government should establish and fund a ‘language research council’ that would be responsible for appropriate planning and research and serve as a clearing house and centre for coordination. The overall object of their approach, they concluded, was not controversial. ‘Most Canadians agree that a knowledge of the second official language is desirable.’ The problem was not whether it should be taught, but how best to teach it. Their own conclusions, as we have seen, went towards universal access, and to effective teacher training. ‘Taken separately, none of the recommendations is startling or revolutionary; taken together, they will make effective second-language teaching possible. This in itself will be revolutionary.’115 Perhaps not revolutionary, but certainly a large morsel to swallow, and in the event one that was difficult for the responsible provincial authorities and the Canadian public to digest. education and cultural duality It will not surprise anyone to learn that Book II concludes with a return to what the commissioners perceived as the fundamental notion of ‘cultural duality,’ and the role of education in creating conditions that would permit each culture to ‘survive and flourish.’116 Their observations will be familiar to anyone who has ever been involved in a discussion of

Language Rights

71

Canadian history: ‘by omissions and – more seriously – by cultural biases, we are fostering cultural divisions and animosities in Canada.’117 English-language textbooks were largely Anglocentric, ignorant of or indifferent to the preoccupations of French-speaking Canadians, and French-language texts were equally parochial and, moreover, inclined to see ‘little vitality in the federal union.’ Canadians of non-English, non-French origin were ‘almost ignored’ by both. History books, moreover, were not the only source of misinformation: what the commissioners termed ‘traditional assumptions’ and ‘conventional attitudes’ also needed attention. Put more directly, although education should not be confused with indoctrination, ‘the premise must be that we are a partnership of two societies,’ and education ‘must help to establish this premise as part of the conventional outlook of all Canadians.’118 Not only the schools but the universities and adult education programs had a part to play. Likewise, travel exchange programs had proved valuable, and should be maintained and indeed expanded to include various groups that had not thus far benefited from them. Taken together, the commissioners saw their prescriptions for minority-language education, second-language learning, and other measures to ensure better intercultural understanding as forming an integrated whole. Put another way, preserving and reinforcing the minority language, giving all Canadians the possibility to learn their second official language, and reducing harmful stereotypical assumptions – each in its own way and in concert one with another – would contribute to the resolution of the problem that they had been mandated to study. Education was no more than a part of the solution, and should not be viewed in isolation from the other elements of their enquiry. But ‘the institutions of education are nevertheless essential elements in the concept of equal partnership, and reforms in these areas will facilitate improved relationships between the two societies.’119 The great question mark, were the commissioners to look at the results of their report forty years later, would once again undoubtedly be the notion of ‘two societies’ or ‘equal partnership’ and its political variants. Battered as they have been by the Meech Lake drama and its Charlottetown sequel, most Canadians have become wary of further adventures in that direction, and are likely to remain so for some time. For the rest, however, they would have every reason to be pleased, a conclusion that very few Royal Commissions could draw. government responses The whole history of minority-language education in Canada is one

72

Transforming Rights

about which we should be ashamed. At the time of Confederation, ‘Francophones living outside Quebec generally considered that religious education,’ which they were guaranteed by section 93 of the British North America Act, would also ‘ensure their right to education in their language.’120 In this they were sadly mistaken. The British Privy Council (then the final arbiter of Canadian constitutional questions) would rule in the Mackell case in 1917 that section 93 was exclusively related to religious guarantees, not linguistic communities. ‘The consequence of the Privy Council’s interpretation of section 93 was a long period during which instruction in French outside of the province of Quebec developed glacially and with great difficulty.’121 Even those words convey the situation on the ground conservatively, for in fact the French-language minority was hard pressed to achieve any adequate level of instruction in their own language. Such was the case until well into the twentieth century in most parts of Canada. As a result, as political eyes turned towards constitutional change and patriation in the wake of the one hundredth anniversary of Canada’s Confederation in 1967, and with the election of the Trudeau government in 1968, renewed attention was inevitably given to minority-language education. During the 1970s, proposals for ‘constitutional renewal’ usually included something on this issue, for it was understood that the failure in the nineteenth century to have ‘explicitly enshrined such a guarantee’ in the British North America Act, and the ‘narrow interpretation of s. 93’ had had ‘terrible consequences for official-languages minorities.’122 What was finally achieved in the 1982 Charter of Rights and Freedoms turned out in many ways to have been more significant than even optimists might have anticipated, especially in the manner in which the Supreme Court of Canada has interpreted the rights set out in section 23. As Beaudoin and Mendes put it, ‘The right to minority-language instruction occupies a special place among language rights guaranteed by the Canadian constitutional framework,’123 for section 23 ‘imposes on governments an explicitly positive obligation to act.’124 The general thrust of the section is clear: it is ‘remedial in nature’; and it is intended ‘to preserve and promote the two official languages of Canada …’125 It also creates ‘a social and collective right … [and] an individual right as well,’ and it has always been given ‘a large and liberal interpretation’ by the Supreme Court.126 The collective nature of the right, as recognized in Canada, is highly significant. Language rights are normally understood in international

Language Rights

73

law, and for that matter in the Canadian Charter of Rights, to confer rights on individual members of a minority, in this case, on the parents of pupils wishing to be enrolled in minority-language schools, and of course on the pupils themselves. Nevertheless, ‘these rights by their nature … involve group activities,’127 and ‘can only be fully realized through the development of infrastructures essential to the survival of a language minority as a collectivity,’128 and this conclusion has been recognized in Supreme Court decisions dealing with minority-language education. So far, so good. But implementation has always been the crux of the matter, and, as the cliché has it, the devil is in the details. First, it is crucial that minority-language education be provided in ‘homogeneous schools,’129 that is to say, schools that are distinct, so far as possible, from institutions in which instruction for the majority is offered. In other words, amalgamated schools or schools providing ‘immersion’ teaching in which French-language pupils are included with the majority Anglophones are, on the whole, not appropriate. Second, where possible, such schools should be ‘located in the community’130 and should come under the authority of Francophone parents. The latter state of affairs, the Office of the Official Languages Commissioner has noted, would be a long time coming: ‘it would take the francophone minority another 10 years of court battles to win the right for parents to govern their own schools.’131 Three major cases, Mahé v. Alberta, 1990; Manitoba Reference, 1993;132 and Arsenault-Cameron v. PEI, 2000, were particularly important in ensuring the right of governance for Francophone parents, and also in underlining the fundamental importance of action by the courts in language reform in this country. One observer has commented on the reluctance of governments to meet their obligations ‘unprompted by litigation.’ And added that, in the circumstances, ‘language laws have served as a primary tool’ in achieving this end,133 and that ‘the Canadian experience in respect of the implementation and enforcement of language rights provides a rich foundation for the study of law as an agent of social change.’ Many of these cases have been described, moreover, as ‘monumental to minority language communities.’134 The result of all this has been quite remarkable. In 1971, there were no Francophone-controlled school boards outside Quebec. When the language commissioner prepared her Anniversary Report in 2004, there were thirty, which were managing some 675 French-language schools.135 Even in 1982, when the Charter was agreed to, there were

74

Transforming Rights

‘no French-language schools in half of Canada’s provinces’; today, this state of affairs has been put behind us.136 At the university level, the Francophone component has ‘undergone enormous changes over the past 35 years,’ with French-language or bilingual universities in Nova Scotia, New Brunswick, Ontario, Manitoba, and Alberta. Education is obviously a provincial responsibility, and it is the courts that have pushed the provinces in the right direction as a general rule. But it also bears observing that the federal government deserves credit for a substantial financial contribution over the years to both minority-language and second-language education. This is not the place for a discussion of the details, but it is worth recording that, following the recommendation of the Royal Commission, the Secretary of State’s Department was quick off the mark in raising the matter with provincial ministries. Gérard Pelletier and I took up our pilgrims’ staffs and set out to try to sell the program of subsidies that had been approved by cabinet. Most provinces were favourably inclined on the whole, though not in any hurry to get on with the job. However, there were exceptions, like British Columbia, which initially was reluctant to get involved at all. In the end they all came on board, with the results that I have described above. And what about Quebec in all this? The reader will recall that when the commissioners were writing their report on education137 they were able to conclude that the situation was much more satisfactory than it was in ‘English Canada.’ I think one can still come to that conclusion. Although English-language education in the province has obviously been weakened since the advent of Bill 101, it is nevertheless the case that young Quebec Anglophones can get adequate instruction in their language from kindergarten to the university level to a degree that we are still working towards for Francophones elsewhere in Canada. The situation of immigrants and certain children from other provinces is clearly less satisfactory, although most Francophone Quebeckers appear to accept it as necessary for the survival of the French language, even though at least some of them also worry about the implications for minority rights. Finally, at least as an aside before I leave the question of language education, I should also mention advances in second-language teaching. The commissioners’ recommendations on across-the-board obligatory second-language requirements in the schools undoubtedly never had a hope of being accepted, especially in an intellectual environment where the idea of obligatory subjects of any kind was difficult to pro-

Language Rights

75

mote. Nevertheless, there has been significant progress to report, especially in the area of immersion schooling. It is of course not intended for the minority, but it is directly relevant to their ability to work or be served in their own language and to the health of official languages reform in general. And immersion instruction has been growing since the 1970s, with the result that Canada ‘is seen as a leader’ in the field.138 It has occasioned many complaints, principally about its allegedly harmful results for training in one’s own mother tongue or other subjects such as mathematics, but there is simply no evidence for this conclusion, whatever the public perception may be. The objection that it is ‘elitist’ is so wide of the mark that I see no point in pursuing it. It is more than regrettable that Canadian postsecondary schools have failed to follow suit. Apart from a few praiseworthy but isolated programs at universities like Ottawa and Simon Fraser, and the laudable approach of Glendon College in Toronto, it is pretty slim pickings across the country. I recall visiting many of these institutions when I was commissioner to discuss the prospects of building on the immersion process by following up with courses taught in French (or in English in Quebec, although that is quite a different matter), arguing that young people studying, say, the social sciences or international affairs, could only gain from acquiring skills in their second language along the way. I fear it turned out to be a vain attempt. And then we wonder why some of them later complain that they never ‘had a chance to learn French.’ I observe, by the way, that the latest of my successors, Graham Fraser, does not think the situation is much better more than thirty years later.139 In the broad picture of language rights in Canada that I am trying to sketch out in these pages I believe we may honestly conclude with respect to bilingualism in education, as did Dyane Adam, that ‘Education is one of the sectors that have made solid progress towards linguistic duality over the past 35 years.’140 Or even more dramatically, as Beaudoin and Mendes argue, ‘While they are not perfect, Acts implementing S.23 in Canada’s provinces and territories have evolved in ways which many could only dream of in 1982.’141 I wish one could say the same for the entire program. e) The Work World 142 The opening lines of Book III provide yet another, though somewhat different, reflection on the commission’s thinking on the matter of

76

Transforming Rights

‘partnership’ between the ‘two founding peoples.’ The 1965 Preliminary Report had referred to ‘equal partnership between the two founding races’ as the ‘dominating idea’ in the commission’s terms of reference.143 By 1967, in Book I of their report, the commissioners felt the need to clear up a certain ‘misunderstanding’: the terms ‘founding races’ or ‘peoples,’ they said, were intended to do no more than emphasize the role played by Canadians of French and British origin in 1867.144 The third volume, published in 1969, includes a further weakening of their original position: the ‘partnership’ is now described as ‘essentially one between Francophone and Anglophone Canadians, whatever their ethnic origin …’145 It is not my purpose to look for inconsistencies in the commission’s thinking. They used various formulations at different stages of their work, and one may be dealing with no more than a conceptual evolution that was common at the time. In a country of heavy and increasingly diverse immigration, it was to take up an even more central place in the federal government’s reaction to the commission’s fourth volume, on the ‘other ethnic groups,’146 that appeared some two years later. In any event, their major purpose in Book III was not so much to pursue this theme as to advance the thesis that ‘equality of language has very limited significance if it is not accompanied by equality of economic opportunity.’147 In other words, it has to be able to flourish in the world of work as well as in legal guarantees. In that context, Book III sets out to provide a survey of Francophone-Anglophone socio-economic status as it appeared in the mid-1960s;148 an assessment of the federal public service and the armed forces; and an examination of and conclusions and recommendations relating to the private sector. In this study, if we are not to wander far beyond the limits I have described, our attention must be focused rather more narrowly on the commission’s thinking on matters where a government reaction was possible. As a result, we will be concerned for the most part with part 2, and the forty-one recommendations the commission brought forward with respect to the federal public service and the armed forces, and to some degree with part 4, insofar as the federal authorities were thought to be involved. At this point, I might add only that I see no reason to dispute the commission’s judgment, as they then perceived matters, that the situation of French-speaking Canadians in the work world, especially outside Quebec, should not be considered the ‘result of conscious discrimination’; rather, it stemmed from an ‘atmosphere, culture and language arrangements [that] are such that Francophones

Language Rights

77

are handicapped … in performing their work.’149 To a degree, this might still be described as the case today, though obviously there have been significant changes in Quebec. the federal administration So far as the federal public service was concerned, the commissioners returned at the outset to their familiar distinction between individual and institutional bilingualism: ‘The Federal Public Service itself must be bilingual … therefore some members of its staff will have to be bilingual. However, many will continue to need only one language.’150 That the implications of this statement would turn out to be vastly more contentious in practice than they appeared in the neat constructs devised by the commission has already been alluded to above. We shall have occasion to see later on that they continue to bedevil the smooth working of a bilingual machine to this day. As a general proposition, however, one cannot but agree that language use in the public service was fruitful terrain for identifying the absurdities of a situation in which the majority was apparently quite unaware of the needs of an ostensibly bilingual country, and the minority rather more accepting of that state of affairs than one had any right to expect. This, the commission found, was equally true of the language of service to the public and the language of work. The relationships between efficiency of service and the language of the client being served and between the language normally used at work and the home language of many employees were both largely ignored. To mention only two illustrations, the commission recorded that, throughout the 1940s and 1950s, it was considered too sensitive politically to distribute bilingual family allowance cheques,151 even in Quebec, and it was not until 1962 that their use was extended to all of Canada. Or again, in my own experience, in the Department of External Affairs as late as the early nineteen sixties it was considered normal not to produce a French version of the Foreign Service Regulations. There was no need for it, as ‘all personnel abroad are quite conversant with the English language and there could be little argument of discrimination.’152 Other examples of extraordinary disregard for the French language persisted long after the commission had completed its work. In the parliamentary precincts, for example, one could often not find a commissionaire capable of dealing with French-speaking visitors in their own language. Signs, plaques, and similar material in federal buildings in Ottawa, again including Parliament itself, were not made thoroughly

78

Transforming Rights

bilingual for many years to come, and then only in the face of considerable controversy. I was myself involved, as language commissioner in the 1970s and 1980s, in a number of vigorous debates with the government and at times the parliamentary authorities about just ‘how far bilingualism could be carried.’ Even on the matter of the Books of Remembrance commemorating the dead of Canada’s wars, there was a dispute over ‘bilingualization’ that continued for several years. In the event, we carried the day, but it remains in my mind as a regrettable example of unwillingness to appreciate the concerns of the minority that need never have happened. This was not, be it said, for want of trying, for it was a struggle that had been underway for many years. The commission reported efforts on several fronts by Francophone ministers like Ernest Lapointe (minister of justice in 1935) to represent the interests, and indeed grievances, of French-speaking Canadians, ‘tirelessly but with little success.’153 What looked like a promising initiative, the so-called Lacroix amendment to the Civil Service Act, that required a public servant appointed to ‘a local position within a province’ to have a ‘knowledge … of the language of the majority of persons with whom he is required to do business …’ was adopted by Parliament in 1938. The commission observed, however, that its effects were ‘negligible,’ principally because ‘department chiefs tended to ignore its prescriptions.’ The problem of the ‘merit principle,’ which muddies the waters to this day, was also never far from the surface. An exchange of correspondence between Lapointe and C.D. Howe154 in 1941 will be all too familiar to those who have followed these affairs over the years. Lapointe had written earlier about the ‘virtual exclusion’ of French speakers from Howe’s ‘key wartime department,’ and on this occasion referred specifically to the appointment of a purchasing officer at Quebec. Howe responded that he was prepared to appoint a French Canadian if a ‘person with the right qualifications can be found.’ Lapointe replied indignantly that, ‘out of over three million French Canadians,’ it ought to be possible ‘to find one who is competent in the business of purchasing.’ To my own knowledge, in my time as language commissioner, and well into the 1980s and beyond, the so-called merit argument returned with depressing regularity. We need not pursue a historical review any further: the commissioners’ intentions were clear enough. They proposed to show that there had been a widespread conviction among Anglophone members of Parliament and the public service, and in the Anglophone press, that the use

Language Rights

79

of two languages ‘would weaken efficiency,’ and that ‘greater Francophone participation would harm the system of appointment on merit and endanger morale in the Public Service…’155 In short, ‘What we can consider today as effective discrimination … earlier generations took to be the natural order of things,’ a state of affairs which the commission characterized as ‘a tragic failure of Canadian political imagination.’156 Setting this situation right, as the commissioners saw it, was the major purpose of the remainder of this portion of their analysis and recommendations. Although it was to be a very long time moving from principles to reality, a new era was in fact already in sight when Prime Minister Pearson outlined a general policy on bilingualism in the public service, on 6 April 1966. Within ‘a reasonable period of years,’ he stated, it would be normal for internal communications to take place in either language, ‘in the knowledge that they will be understood’; service to the public would normally be provided in the language of the person being served; the ‘linguistic and cultural values of both English speaking and French speaking Canadians’ would be reflected in recruitment and training; and ‘a climate will be created’ in which both groups would work towards common goals, each respecting the other’s language and cultural values.157

It was also intended that this would be achieved by requiring, by 1970, as a condition of recruitment to the public service, and by 1975 for promotion within the service, a knowledge of the two languages or ‘a willingness to acquire it.’ This was an advance, to be sure, but the commission was still troubled that it concentrated too much on the individual and did not represent enough of a move in the direction of institutional bilingualism, entrenched within the ‘organizational structure.’ Moreover, at least as it was interpreted in practice, for example by the Civil Service Commission, it concentrated more on language of service to the public than on language of work. And even there, the civil service was ‘apparently still a long way from meeting the standards of bilingualism’ it had set for itself, 158 with Francophones outside Quebec being ‘particularly poorly served.’ Furthermore, there had been no real attempt to ‘implement a policy on language of work, and nearly all traditions and characteristics of the Public Service have put pressure on the Francophone employees to become assimilated into an Anglophone environment.’159

80

Transforming Rights

Change therefore needed to take place, both to provide for adequate service to the public and to put an end to discrimination in the language of work, as well as to provide for a ‘central organization’ for the supervision of the implementation of these requirements. Francophone participation, especially at the higher levels in the public service, also remained a serious problem: ‘young Francophone graduates … know its history of indifference to the French fact and are therefore reluctant to seek employment in Ottawa.’ Francophone participation in the federal public service at the time of the publication of Book III stood at 22 per cent, as against 26 per cent in the population at large at the 1961 census. It was considerably lower in the more senior echelons, falling to some 10 per cent in the highest salary band.160 There were, the commission agreed, more recent data suggesting ‘a significant change,’ but they had not yet ‘dramatically altered the long-standing inequities’ – it still remained the case that the public service was essentially ‘une organisation anglaise.’161 The solution, as the commission saw it, was no less than the creation of ‘a bicultural public service … the coexistence and collaboration of the two cultures … this and only this condition can begin to provide for the development of an equal partnership.’162 And this in turn required that ‘the federal government adopt the French-Language Unit (FLU) as a basic organizational and management principle.’163 This schema the commission described as a ‘sweeping proposal’ that would transform the work environment of the public service so as to ensure that French would be a genuine language of work and of internal and external communication. Within the FLUs, the use of English would not be entirely excluded, but it would be sharply circumscribed for both Anglophone and Francophone personnel. ‘Ideally, the unit structure should fully provide for upward career paths in the French language.’ At the same time, there was to be no question of separating the public service into two ‘parallel sectors defined by language.’ The heads of such units, ‘and all those above them,’164 would have to be bilingual in order to make the system work. It is a major understatement to observe that the FLU concept gave rise to serious organizational problems. For those of us in the Secretary of State’s Department who were charged with trying to translate it into realistic administrative dispositions, it may have been a wonderful intellectual construct but probably was always a non-starter in practice. Despite the commission’s assurances to the contrary, some observers did

Language Rights

81

indeed see the units as creating linguistic enclaves, not to say ghettos, an arrangement that would not necessarily work to the advantage of Francophones. In fact, there were those who accused Laurendeau of perceiving bilingualism as two separate unilingualisms, and one can see some trace of this kind of thinking here. Others wondered, if the FLUs were to be staffed to some extent by unilingual Francophones, how those individuals could expect to become sufficiently skilled in the other language to aspire to more senior positions that required bilingualism. In some areas, of course, the FLUs had no need to cause any conceptual problem whatever. There was no reason, for example, why large units in Quebec could not work in this way. They were already in existence and had French-speaking staff; what they required was a reasonable set of procedures for communicating with headquarters in the French language. Indeed, if there was anything surprising, it was that they were not already working in French. As for headquarters offices themselves, the commissioners seemed to sense that implementation might be more challenging, but they appeared to believe it entirely possible to establish such units in all federal departments, along with the ‘service units’ required to support them. For the rest, much of the detailed analysis devoted to the concept of FLUs by the commissioners and their researchers can be of little more than academic interest some forty years later. With the benefit of hindsight, they were very likely doomed to failure from the beginning, at least in the fully developed form envisaged by the commission, although much time and effort were expended in discovering this gloomy truth. Other areas of the commission’s involvement were more fruitful. The improvement of language training in the public service, and an end to the automatic translation of all French texts,165 for example, were two recommendations that could not fail to command support, although they were easier to accept in principle than to guide successfully through a hidebound bureaucracy. The proposal that there should be a ‘Public Service Language Authority’166 charged with coordinating these various initiatives was also accepted, though again it was cause for some head-scratching to determine just who should have responsibility for what. Similarly, recommendations were offered in relation to personnel planning, recruitment, and training, with a view to improving the balance of French and English in the public service, all of which received some measure of attention, though perhaps not with the vigour that the commission might have hoped for.

82

Transforming Rights

‘Doubtless,’ this section concludes, ‘our specific recommendations and other suggestions do not foresee all the difficulties that will arise in the course of the plan’s implementation.’167 That this turned out to be a masterpiece of understatement is not a criticism of the commission. Its role was to lay the problems and its recommendations before the authorities; it was for others to work out measures for dealing with them, or conversely, to show that they were not practicable. It is nonetheless worth observing again that all royal commissions are prey to over-structured, oversimplified solutions, and that this one was no exception. The treatment of language issues in relation to the Canadian Armed Forces was no less comprehensive. The situation the commission found in place in the mid-nineteen sixties was not surprising, but less than encouraging. French Canadian participation was low (some 16 per cent in 1966),168 and even lower among officers. And ‘except for some army Francophones stationed in Quebec, English was the language of work in the Forces.’169 In order to remedy this situation, the commission recommended official recognition of the two languages in the National Defence Act, and various measures to ensure their recognition in practice, measures that essentially followed a number of those proposed for the public service. To parallel the civilian French Language Units, but at the same time respect the ‘organizational and operational methods of the forces,’ the commissioners proposed the creation in Mobile Command of a ‘formation or sector where French will be the military language of work … large enough to provide opportunities for a sizable proportion of Francophone personnel to pursue their complete careers in French.’170 They also suggested the establishment of FLUs at ‘Canadian Forces Headquarters, and in commands other than Mobile Command.’171 There were many additional measures that the military could take to assist in establishing ‘a strong and dynamic French-language milieu,’ they concluded, but the crucial need was to create ‘a French-language sector, since it will provide both a viable base in all activities and large career opportunities for Francophones.’172 the private sector Turning finally to the private sector, the commissioners sketched the outlines of a landscape in which, outside Quebec, ‘Francophones … did not enjoy anything close to an equal partnership.’ Within that province, the situation was more complex, but even there higher-paid individu-

Language Rights

83

als tended to be Anglophones, and ‘English was overwhelmingly the language of work at the top levels.’173 There followed a discussion of recruitment, training, career patterns, and related issues that revealed changes in the work milieu at various enterprises in Quebec; but the overall sentiment remained that Francophones were still at a disadvantage, and that this could only change with substantial alterations to the language-of-work regime. Accordingly, although ‘the ultimate target’ should include all three officially bilingual provinces and the bilingual districts, the immediate concern should be for Quebec. Their proposal for that province carried with it a taste of the future. In the ‘private sector in Quebec,’ the commissioners recommended, ‘governments and industry [should] adopt the objective that French become the principal language of work at all levels.’174 There should also be a place for English, to be sure, as there should be a place for French in New Brunswick and Ontario. And French Language Units and bilingual senior personnel, as well as appropriate recruitment, training, and promotion practices should be developed as required. Only with initial concentration on the ‘acute’ problem in Quebec, however, could viable solutions be found. It should be noted that Professor Frank Scott took issue with the commission’s recommendation relating to Quebec. In his dissenting comment,175 he observed that it amounted to a ‘virtual acceptance of the territorial principle,’ and that the commission should have treated Quebec, Ontario, and New Brunswick equally. The proper approach would have been the establishment of a task force to work out ‘a just and practical policy,’ as it had done in the case of the latter two provinces, instead of setting down ‘rigid rules,’ in effect answering its own question in advance. As in many other areas, Scott’s sense of justice was as deeply rooted as his prescience was remarkable in view of what was to happen in Quebec a decade later. the federal reaction – language of work As I have indicated above, there have been vast changes in the Canadian language tableau since the commissioners began their first pilgrimage across this country in the early sixties. There is no doubt, for all the failures and backsliding, that the progress accomplished is remarkable for anyone who was present then and able to observe objectively the deplorable lack of any French-language presence in Ottawa, let alone Toronto, Calgary or Halifax … or, indeed, Montreal. Within the federal area, the most fragile sector has always been the

84

Transforming Rights

language-of-work regime. The death of the French Language Units, at least as initially conceived, was inevitable, in my view. As was the hope that genuinely bilingual armed forces could be established through the adoption of similar arrangements for the military. However, there is no doubt that there could and should have been more disciplined followthrough on the requirements for bilingual positions and more adequate language training. Much of what seems to be evident about language policy in relation to the language of work – and to have been so since the beginning – can be described very briefly. There are both systemic and human aspects to the problem. To begin with, systemic requirements have always been weaker than they should be. Language achievements, for example, as measured by public service examinations, are no more meaningful as a practical indication of an ability and willingness to use French in everyday circumstances than any other exam-based criterion. People can and do crash-study for them, and then leave them to one side until the next time they are required to prove their competence, for promotion or to occupy a particular position. There is also much game playing about bilingual positions themselves. They may require bilingualism in theory, for example, but in practice some of them can be filled by a unilingual individual because it is not deemed ‘imperative’ to require a bilingual person. There are all sorts of ways to beat the system; and these possibilities need to be reduced to an absolute minimum if the system is to retain any credibility. It is true that the existing policy was changed (again) by the then president of the Treasury Board in her 2003 statement, to require that candidates for bilingual positions ‘satisfy the linguistic requirements of the position when hired.’ This was to be implemented in 2004, 2005, and beyond. And it will doubtless again be criticized in due course by the language commissioner. Does one not get the impression that the wheels are spinning? We shall see – I have heard variations on this theme many times before, for more than thirty-five years, and we are still not there. In spite of the myth that portrays unilingual Anglophone public servants as unable to find jobs or receive promotion, the fact is that, outside the National Capital, there are relatively few bilingual positions. Even fewer are actually staffed by personnel who qualify as bilingual. And of so-called qualified personnel – individuals who have passed an examination at the required level – there are yet fewer who have maintained their second language in working order and use it on a regular basis.

Language Rights

85

All this could have been, and still could be, dealt with by a modicum of firmness at the most senior levels. However, there has been an enduring reluctance to bite the bullet and to accept the political opprobrium that would go with insisting upon genuine bilingual capacity. As I have also noted, the Treasury Board has reasserted its determination to insist upon more rigorous requirements, but it remains to be seen whether something more will come of its new-found firmness. Personally, I would not be too sanguine, as long as the same tired argument is trotted out on the other side – the alleged clash between ‘merit’ and language requirements, to the exclusion of ‘qualified people.’ Of course, personnel should be hired and promoted on the basis of merit. Who would want it any other way? Does anyone wish to take on an employee who is less than competent? Yet the legend persists that unnecessary bilingual requirements are imposed that can only benefit Francophones, who are more likely to know the other language than are their Anglophone colleagues. It is equally manifest that bilingual positions should be created only when and where they are needed. But that is just what the argument is all about. When and where are they needed? In the eyes of those for whom language competence is a frill, whether they admit it or not, they are really not required at all. Even for senior officials who deal with subordinates from both language groups or in positions in which one must deal directly with such individuals: for example, in personnel work. And for the usual reasons – though nowadays usually unspoken: the people with whom they are dealing are really quite competent in English, and there are other, more important considerations that should determine who becomes a manager or a personnel officer and who does not. Those who endorse this way of thinking are quite incapable of comprehending that language skills are an integral part of the job. This does not necessarily come about, I should add, from a conscious discriminatory attitude vis-à-vis Francophones; it is rather an unacknowledged cultural bias that goes a very long way back in this country but that fortunately has diminished over the forty-year period we have been considering in this study. A new wrinkle has, however, been found that I hope will not have the staying power of the merit-principle, everybody-speaks-English-anyway line of argumentation that I have been describing. It is that in some way bilingualism requirements are out of keeping with the multicultural character of contemporary Canada, as they allegedly discriminate against persons whose mother tongue is neither English nor French.

86

Transforming Rights

Indeed, comments I have seen from some official sources are even more curious: they would apparently have it that bilingualism is a particular problem for ‘visible minorities.’176 Why visible minorities, as against all linguistic minorities, one might ask. From the language point of view, why should it be more difficult for a Hindi speaker who already speaks English to learn French than it would be for a native Hungarian speaker in the same circumstances? Both are languages far removed from English and French. Why should skin colour have anything to do with it? In any event, linguistically speaking, it should be the other way round. A person who already knows more than one language should have less trouble, not more, learning another one, than does a unilingual individual. It is interesting to note in this context that, according to the 2006 census results, allophones outside Quebec have a higher rate of English-French bilingualism than do Anglophones, at 12.1 per cent and 9.4 per cent, respectively. Of course, for recently arrived immigrants, there are many other problems in adjusting to a new environment, especially for so-called visible minorities, and they may have little time or inclination to add to them by embarking on a language-learning program. We should be careful not to compound their difficulties by requiring a knowledge of additional languages as a condition of decent employment, even in the public service. But in fact this may often be a straw man. After all, the persons we are talking about, with the level of education and experience appropriate to the positions they aspire to, already know one of Canada’s official languages, if not when they arrive then certainly when they consider joining the public service. In those circumstances, learning the other to a reasonable degree of competence should not be an insuperable problem, and indeed is one that is dealt with all over the planet on a daily basis. This reasoning should be even more applicable to the second and subsequent generations. All this being said, to the extent that this is perceived to be a problem, it should be dealt with in a considerate and nondiscriminatory fashion that will take full account of minority needs. The important point, however, is that it should not be possible for individuals already in the public service to escape language training for years on end. Especially for persons with supervisory and management responsibilities, or in a category that leads to those levels, rigorous language requirements should be enforced early in their careers. As for the human element, leadership is undoubtedly the most sig-

Language Rights

87

nificant factor. The problem is clear: ‘The perception that senior managers are unilingual’ is a major obstacle to the use of French as a language of work. ‘Although the majority … meet the language requirements of their positions, a good number of them do not use French.’177 In the circumstances, Francophones show a tendency to favour the use of their supervisor’s language, ‘so that their performance is more fully recognized … Moreover, English is recognized as the language that offers the best chance of professional advancement.’178 And at the same time, this familiar tale is reinforced by the fact that ‘The lack of confidence in work performed in French encourages Anglophones to resort to English … Anglophones in general do not feel comfortable using French at work.’179 And ‘Meeting a linguistic profile does not necessarily entail that the second language will be used.’180 All of this together makes a lethal cocktail. It is a wonder in the circumstances that any progress is ever made. The saving feature on the Anglophone side is that there are increasing numbers who really do speak, and use, French, and who, in consequence, ‘address their Francophone colleagues and subordinates in French more often than those with weaker skills.’181 In my experience, in these circumstances, Francophones reciprocate; that is, they do not automatically switch to English. Over time, this can create a situation approaching equality, and that is the purpose of the whole exercise. Recognition of this reality is imperative, as it is to accept the fact that many of the statistics on numbers of individuals meeting this or that criterion or level that have been produced over the years often have little meaning. A willingness to do something about it in terms of actual use of the language is the key to the entire operation. As another illustration of the point, we are also told in the study I have been citing that ‘Nearly 80% of supervisors meet the language requirements of their positions.’ But this optimistic observation one must temper with the additional comment I have also just referred to: that ‘a good number of them do not use French.’182 This, in my experience, is the reality. Essentially, this means starting at the top of the public service. Not so long ago, the language commissioner’s office reported that, even at the highest level of the public service, 20 per cent of assistant deputy ministers did not meet the language requirements of their positions. The government for its part claims that deputy ministers and associate deputy ministers do come up to scratch, but these are cabinet appointments, and there are no statistical data to support this assertion. In the circumstances, and with the same difficulties arising at somewhat less

88

Transforming Rights

exalted levels (directors general, for example), it is hardly surprising that the language-of-work machine has sand in its gears. It is clear enough, I think, that the responsibility for doing something about this must start with the clerk of the Privy Council, the ‘Head of the Public Service.’ If he is determined that deputy ministers and agency heads will make their operations run in both official languages, then the chances are greatly increased that they will. (There will always be urgent matters of overriding importance, but I am talking about the general rule – it is now too often the case that so-called emergencies or other allegedly pressing events that place priorities elsewhere or render an individual ‘indispensable’ are a permanent impediment to moving on the language front.) The prime minister must also be involved, or the clerk will not be himself, unless he has a personal bee in his bonnet about bilingualism, which is very rare. Assuming they are, however, there are all sorts of ways to involve others, right down to the lower decks. Linguists agree that ‘motive, opportunity and time on task’ are the key to learning, as I myself know from my efforts to acquire a knowledge of French and other languages. Of these, I venture to say, the sine qua non is motivation. And motivation, after all, is clearly linked to ambition. If one wants to get ahead, and the top echelons of government insist that that means being able to operate in both languages, then – again as a general rule – people will achieve that competence. The point is that, whatever official pronouncements may lead one to believe, it is perfectly possible in practice, in the public service as we now know it, to get to the top (or indeed start at the top, as a cabinet appointment – a deputy minister or an ambassador, for example) without acquiring adequate language skills. The plain fact of the matter is that many of us have known individuals in one department or another in the most senior ranks who do not have any real competence in French – and I mean French, for no one would want to try to advance in the ranks without English. Even in the Department of Foreign Affairs, where one would have thought a knowledge of Canada’s two official languages – especially in a post abroad – would be obligatory, it has been possible to get ahead without it, though less so today than in the past. Perhaps most difficult of all, there also have to be more effective ways of persuading Francophones to use French at work. On its face, it is puzzling that people should need to be pushed to use their own language, but we know this to be the universal story of minority-language speakers. And, moreover, this practice is very difficult to over-

Language Rights

89

come, for there is no logical or fair basis upon which to insist that such individuals use French when they may feel it will cause difficulties for Anglophone colleagues and give them the reputation of being troublemakers. Still, it can be done if the leadership obligations I have referred to are taken seriously, and if those who are responsible for the flow of documentation183 and the organization and chairing of meetings pay attention to these matters. ‘With the support of their managers,’ as one analysis puts it, ‘French speakers must take advantage of their right’ to speak French. ‘Yes, but,’ one must conclude, for if these same managers are not themselves at home in French, how, realistically, are they going to encourage their Francophone subordinates? The answer is not obvious. It is worth noting that these problems are not exclusive to the French language in the National Capital and outside Quebec. The office of the language commissioner has also reported that, while not a mirror image, there is nevertheless a similar phenomenon in ‘federal government departments in bilingual regions of Quebec,’ where ‘many Anglophones report that they do not feel comfortable using English at work and prefer to work in French so that they will receive due recognition for their work.’184 These are obvious, practical considerations that are not going to go away, however idealistic one may remain in principle about the bright, sunlit uplands of bilingualism. Nevertheless, such difficulties can be mitigated to the extent that supervisors and colleagues from the other language group are prepared to offer a helping hand. Finally, in all of this, one must try to avoid gimmicks that are assumed to provide simple solutions to intricate problems. Two illustrations will suffice. First, for more than thirty years, there has been talk about the merits of ‘passive’ or ‘receptive’ bilingualism. Much of this is nonsense. It is clear, of course, that people often understand the spoken language better than they speak it (this is even more obvious for the written language), but that is not the point. The important consideration is that ‘receptive bilingualism’ is unlikely to be a genuinely substantial element of a solution to the problem of equitable language use in the work place. It is simply not realistic to assume that two individuals, one Francophone – and likely bilingual – the other Anglophone – and likely not – are going to be able to carry on an extended conversation, one using French and the other English. (Written exchanges are of course different, and doubtless can work in that way – with awkwardness and problems, it is

90

Transforming Rights

true, but not anything insuperable.) If nothing else, even in a one-on-one situation, it would probably drive the Francophone mad with frustration; and in a group, it could lead to real breakdowns in communication if applied to any great extent. It should be put to one side as a potential panacea. This does not mean that people should avoid speaking their own language in meetings: that is an entirely different matter from trying to train people only or largely in so-called ‘receptive’ skills. Second, in designing a meaningful approach to language training, we should not place too much faith in aptitude tests that are ostensibly designed to show who has the capacity to learn a language and who does not. The fact is that anyone can learn another language if properly motivated. It is no accident that less well-educated individuals – for example, certain minority-language speakers in basic jobs – are often more bilingual than better-educated majority-language speakers. That a middle-aged public servant finds it difficult to acquire a second language, when he feels humiliated at being placed in the situation of a learner, to serve a cause in which he and his circle of friends probably do not have much faith, is hardly surprising. As I have already suggested, the point of attack should therefore be through such an individual’s motivation, rather than through a dubious procedure that is thought to weed out those without the capacity to learn, leaving only a stout band of brothers and sisters to sail ahead towards the bilingual goal. Like ‘receptive bilingualism,’ this is an illusion that can only continue to bring grief to all concerned. The truth is that it is very well known what the shortcomings are. More than three decades of official languages commissioners’ reports, not to speak of innumerable studies and recommendations from the Treasury Board, the Public Service Commission, and the Heritage Department and its predecessors, eloquently attest to this fact. The problem is not a failure of diagnosis; it is a failure to prescribe an effective cure (rather than one that is merely politically acceptable), and to insist that the patient accept and follow the regime necessary to achieve it. People need to understand that they cannot take the word for the deed: they have for too long been persuaded that, if the Speech from the Throne says that bilingualism is important, then it is, and will be given appropriate priority in practice. Unhappily, it is not that simple. We may conclude, then, as does the Round Table on Official Languages,185 that ‘All in all French is underutilized … in the Public Service, and that there is appreciable dissatisfaction with oral, written and hierarchical communication.’186 And consequently, that it is fair to say that

Language Rights

91

Despite considerable progress, we note that the official languages program in federal government institutions has faltered somewhat over the past decade. The language of work is lagging behind when compared to the language of service. Serious problems hampering the use of both official languages persist, especially French, in the workplace.187

the canadian armed forces The Canadian forces have always presented something of a conundrum with regard to language policy. To listen to their side of the story is to believe that they are well aware of the need for a two-language regime, and have been for a very long time. For example, we learn that Colonel Matthew Aylmer, at Militia Headquarters in Ottawa, issued Militia Order No. 12 on February 14, 1899. The order read that because military forces in Canada were made up of regiments drawn from both English and French language groups, officers who aspired to senior positions of command should be able to give their orders to the troops in those troops’ language of choice.188

Yet it is a common perception that the Canadian Forces have traditionally been an English-language bastion, and that this has remained one of the major reasons why French-speaking Canadians have not been drawn to a career in the forces. Probably an objective observer today might offer the comment that they are indeed trying, but that they are not doing all that well. On the one hand, I don’t know how many statements I have seen by the military that respect for the two official languages is essential, and that it ‘must be actively promoted by the chain of command … leadership most effectively occurs in the language of one’s subordinates.’189 On the other, I continue to read reports from the language commissioner that can only be characterized as damning with faint praise. For example, although the commissioner’s office noted, in a 2005 audit of the headquarters operations of the Department of National Defence and the Canadian Armed Forces, that ‘senior management has taken steps that demonstrate some leadership,’ it concluded that: DND and the CF have a long way to go to succeed in creating a work environment conducive to the effective use of French … the environment does not give French its rightful place as a language of work … Only 50% of colonels/captains (Navy) and incumbents of higher ranks

92

Transforming Rights meet the [required] standard … only 39% and 44% of military personnel who hold supervisory and central and personal services positions meet the language requirements of their positions. As a result, the majority of Francophones at Headquarters feel obliged to work daily in English.190

Outside the headquarters environment, there are elements of the Canadian forces that are deemed to be ‘French-language units,’ defined as ‘units whose language of work is French. In other words, personal and central services, supervision, professional training (other than formal military individual training), work instruments and communications are provided in French.’ For certain of these units – for example, the Royal Twenty-second Regiment in Quebec – there seems little reason to doubt that the day-to-day working language is in fact French, though one may wonder whether only mother-tongue or fluent French speakers are posted to the regiment, and what happens when this is not the case. Other French-language units include the Douzième Régiment blindé, an armoured regiment, and the Cinquième Régiment d’artillerie légère, a regiment of the Royal Canadian Horse Artillery, and other units based at Valcartier. I understand that a couple of ships and certain air squadrons are also so designated. But one must again ask how rigorously the rules of the game for French-language units are enforced in these situations. My conversations with Francophone former officers whose good sense I have no reason to doubt, including two at the general officer rank, suggests that the system works well. Others, including me, will doubtless adopt a more sceptical attitude. In any event, regarding the overall state of affairs in the CAF and DND, we might leave the subject with the cautionary note that the commissioner’s 2004–5 Annual Report gives the forces a ‘poor-fair’ rating for language of work, and a comprehensive rating of ‘poor.’ Things are certainly better than they used to be, but National Defence and the Canadian Armed Forces still have a long road to travel. Finally, let me comment briefly on equitable participation by Anglophones and Francophones in the public service, a problem that has also been of major concern. The Round Table reported that Francophone participation in 2002 was some 31 per cent, and 28 per cent in the management category, as compared with 22.9 per cent in the general population.191 Evidently, this is considerable progress from the figures reported by the Royal Commission, even if it remains the case that there are still too many Francophones in administrative positions and too few in program-related ones.192 Under-representation of Anglo-

Language Rights

93

phones in the federal public service in Quebec also remains a cause for concern,193 as does the continuing and substantial imbalance of Anglophone and Francophone bilingual capacity in the public service at large (32 per cent versus 85 per cent).194 For the Canadian Armed Forces, the comparable figures were some 16 per cent in 1966 (fewer for officers) and 27.4 per cent (23.9 per cent for officers) in 2006, also a substantial increase. To conclude in a few words, the whole issue of language of work is a mixed bag. The picture may not, however, be altogether as bleak as it often looks. There are more genuinely bilingual public servants than there ever were, especially among younger people. And there has been substantial progress from the English-language monopoly that existed in the days of the Royal Commission or my early years in the public service. Of course, this cannot alter the iron law of demography – a minority language remains a minority language. However, together with more decisive leadership, it will go a long way towards creating a reasonably bilingual public service, at least in Ottawa, and elsewhere where the two language groups are in frequent contact. f) Other Ethnic Groups195 It was clear to the commissioners that Canada, as ‘an “open” country’ with ‘heavy immigration,’196 could not fail to have been substantially influenced by the ‘other ethnic groups’ – that is to say, groups that were of neither British nor French origin. At the same time, it was evidently their wish to retain the two-societies approach that they had adopted since the outset of their investigations as the fundamental premise in elucidating the Canadian identity. Although the two models are not necessarily at odds with one another, there were nevertheless increasing signs of uneasiness on the commissioners’ part in the face of allegations that they were in fact setting up a hierarchy, whatever they might claim to the contrary. I also very frequently had occasion as language commissioner to experience this sense of resentment. The contention that ‘the French are no more than an ethnic group like any other,’ and therefore deserving of no ‘special treatment’ was widespread everywhere but in Quebec, and often made to me in categorical terms. The Royal Commission’s response continued to be ambivalent at best: we must not ‘overlook Canada’s cultural diversity,’ the commissioners said; but we must also keep in mind that ‘there are two dominant cultures, the French and British.’197 Whether

94

Transforming Rights

or not there was a conflict between these two assertions, it certainly looked that way. The opening paragraphs of Book IV are no exception to the commissioners’ uncertainties on this front. They attempted to explain once again at the outset that immigrants had the right to ‘share with all Canadians … the fundamental duality of Canada,’ and that those of neither French nor British origin ‘should have the same opportunities as citizens who belong to the two societies by birth.’198 Just so. But if it was as clear as all that, why did they have to go on about it? Yet go on about it they did, one must suppose, once again, because there was heavy flak from those very ‘ethnic’ communities that the commission was hoping to see rally round. And, moreover, for whom the government of the day – and their successors – eventually would pull out all the stops in developing a fully fledged multicultural policy, legislation, and a constitutional guarantee, far beyond what the commission had ever envisaged. But we are getting ahead of ourselves. It is sufficient for the moment to remark that, whatever its notion of the place of the other groups in Canadian life, the commission presented its usual thoughtful examination of the immigrant population in the mid-nineteen sixties: a careful historical and sociological review, followed by an analysis of their economic, political, and social situations, and of matters relating to language and education. Its reflections have doubtless been replicated many times elsewhere, and perhaps bettered, but they remain an excellent snapshot of immigrants’ place in Canadian life at the time of the commission’s report, which very much repay reading. However, as was the case with Book II on education, my principal interest is confined to a narrower slice of the problem. The present analysis must focus on those aspects of the commission’s diagnosis and recommendations that were addressed to the public authorities, federal and provincial, and the responses that need to be assessed if we are to determine how effectively governments were able to meet the objectives they set for themselves. Seen in this light, one of the most significant aspects of the commission’s argument, and my own preoccupations, is to be found in their examination of the problem of discrimination. In dealing with the difficulties that inevitably arise when an ‘established population is joined by a wave of newcomers,’ it asserted with no small measure of understatement that ‘Canadians have not always resolved [the] problem with the greatest generosity.’199 So it was that, for many years and in many areas, involving employment, services, education, and even basic political

Language Rights

95

rights, there was persistent and widespread discrimination on grounds of race or ethnic origin. Asians in British Columbia, for example, were excluded from such professions as the law until after the Second World War; and I need not repeat here the details of the disgraceful treatment of persons of Japanese origin during the war. ‘More common than legal discrimination,’ the report continued, was the practice in various parts of the country of refusing to hire members of a particular group such as blacks or Jews or imposing quotas or excluding them from certain training programs or schools. ‘Such practices used to be carried on openly,’ they added. It should also be noted once more in this context that the commissioners observed early on that ‘we have not studied the question of Canada’s native population,’ because it was not covered by their terms of reference. As a result, there is no discussion of discrimination against the Aboriginal peoples, even though it was evidently the most widespread and extreme example, at that time and to this day. In addition, although their terms of reference had not asked them to deal with broader human rights issues, they felt it appropriate to endorse steps towards human rights and fair employment legislation that provincial governments were bringing in at the time. They further recommended that these measures be expanded to include ‘all provinces’ and that provision be made to appoint ‘full-time administrators of their human rights legislation.’200 That they chose to pass over the federal government in silence seems curious in retrospect, since they themselves had alluded to the Canadian Bill of Rights and the Canada Fair Employment Practices Act.201 The government was also a major employer and service provider, and was later to establish comprehensive legislation in this area, not to speak of the largest Human Rights Commission in the country. One must assume that they reasoned that the areas they were primarily interested in – housing and fair employment practices, for instance – were primarily within provincial jurisdiction. Turning to political rights, the commissioners again pointed to widespread discrimination against various immigrant groups, in particular with respect to the acquisition of citizenship and the right to vote. Thus, for example, persons of Chinese or East Indian origin, even if Canadian born, had been denied the provincial franchise in British Columbia for many years.202 Since the Second World War, however, the participation of Canadians of origins other than British or French had ‘steadily increased,’ both in Canadian political life and in various government institutions. Merit, they believed, should always be the criterion in hir-

96

Transforming Rights

ing, rather than setting aside ‘a proportion of the appointments.’203 But the playing field needed to be level, and in many respects it still was not. The commission therefore recommended that this be put right, particularly with respect to the vote and citizenship: ‘the same conditions for citizenship, the right to vote, and to stand for election to public office [should] be accorded to all immigrants, with no regard to their country of origin.’204 Beyond a thorough review of factors affecting assimilation and language transfer patterns, the commissioners’ attention in the remaining sections of Book IV was focused largely on ‘three major areas of linguistic and cultural interest: education, mass media, and arts and letters.’205 They were especially concerned with language training, and with government support for research and for cultural organizations. ‘In each area, we review the present situation and recommend appropriate measures.’206 The ‘present situation’ being now some forty years in the past, I shall concentrate on their recommendations. While maintaining their overriding interest in the official languages, and instruction in those languages for children without an adequate mastery of one or the other, the commission was also interested in the teaching of other languages, from the primary level through the universities. They added to that concern a range of issues related to cultural studies, the humanities, and the social sciences, in ‘areas other than those related to the English and French languages.’207 To illustrate, they thought it important to ensure that ‘other groups’ not continue to be ‘virtually ignored’ in the history books.208 At the same time, in reviewing the situation of ethnic schools, they offered the view that the public schools should not be in the business of passing on to students ‘the total cultural heritage of their parents,’ and that privately sponsored schools with that function would doubtless carry on.209 Their reading of the financial situation of those schools is particularly interesting to consider some forty years on, especially in light of Canadian multicultural policy in the intervening years, and developments in human-rights law. On the one hand, they endorsed the approach of the Montreal Catholic School Commission, which at that time was providing accommodation and subsidies to part-time ethnic or religious schools. But they were opposed to more generalized financing for fulltime ethnic schools, for a variety of reasons. There would, for example, be ‘serious difficulties’ in maintaining standards, they thought, and there would also be ‘a danger that the public school system would suffer … if several cultural groups were to set up their own schools

Language Rights

97

supported by taxes …’ This point of view, it should be added, still has considerable currency. Consider the reaction to the Charest government’s 2005 proposal to increase funding for Jewish schools, and the enormous controversy generated by the ‘faith-based schools’ issue in the 2007 Ontario elections. At the same time, it must be recognized that Quebec has traditionally had a more generous, less discriminatory approach, as have other provinces in the west, than has Ontario. As a result, in their view, ‘Private ethnic schools should receive the same treatment from provincial educational authorities as other private schools.’210 Nowhere does the argument based on religious discrimination between constitutionally sanctioned support for ‘denominational schools’ and other religious schools appear to have been given any weight. And this in spite of the 1948 United Nations Universal Declaration on Human Rights – whose significance they themselves had underlined in Book I – which bars discrimination on grounds of religion and national origin. Among the mass media, the commission commented, the ethnic press provided ‘a number of important services.’ They interpreted the events of Canadian life, for example, to those who were unfamiliar with either French or English, and of course reported on matters of significance within their own communities. These newspapers and periodicals often received indirect financial support from governments, by way of advertising, for instance. The commissioners ‘approved’ of the existing level of support, but they believed that it would be unwise to go much further, as direct subsidies could affect journalistic independence, which was ‘as important for them as for any other publication.’211 Broadcasting in Canada in languages other than English and French was confined, the commission noted, to the private sector, although this appeared to be a matter of CBC policy rather than a prohibition set out in legislation.212 There were also special restrictions on foreignlanguage broadcasting, as to the percentage of time that could be allotted to it, for example, without special permission from the regulatory authorities. The Royal Commission could see nothing to recommend the continuation of either of these differential provisions. It therefore recommended that the CRTC remove any special restrictions on private broadcasting in other languages, and that the CBC do likewise with respect to the existing proscription against such programming.213 It also recommended that the CRTC undertake studies with respect to thirdlanguage broadcasting ‘to determine the best means by which radio and television can contribute to the maintenance of languages and cul-

98

Transforming Rights

tures,’ and that the CBC take part in those studies. Finally, it suggested that research be conducted on the portrayal of other cultural groups in the broadcast media, both public and private.214 Again looking forward to another time and other attitudes, it is worthy of note that the commission was opposed to any notion that persons from other cultural groups ‘should have formal representation on policymaking broadcasting boards.’ At the same time, qualified individuals should of course never be excluded because of their origin, and the authorities that make such appointments ‘should be aware of the ethnic diversity of the Canadian population and the particular interests of the various cultural groups in our country.’215 This is perhaps not all that far from the contemporary point of view, though in an era of ‘employment equity’ there is more overt emphasis placed on the importance of ‘active recruitment’ of such individuals, not to speak of ‘quotas’ that are promoted by some observers and special-interest groups. With respect to film, the commission noted that the National Film Board (NFB) had versions of its productions in several languages other than English and French, largely for use abroad by the Department of External Affairs. They were also available for distribution in Canada, in response to requests, but there was little or no publicity about them, and ‘such requests are rare.’216 In the commissioners’ estimation, the NFB should do more to publicize their existence, ‘particularly in regions where there are concentrations of persons who speak languages other than English and French.’217 The commission also commended the NFB for productions portraying the lives of various ethnic groups, as well as of outstanding individual Canadians from those communities. It recommended that the board should ‘continue and develop the production of films that inform Canadians about one another, including films about the contribution of individuals and groups of ethnic origin other than British and French.’218 Following a survey of the history and accomplishments of the ‘other’ ethnic groups in Canadian cultural life – literature, music, and the performing and visual arts – the commission turned its attention to the inevitable question of financial support. It recommended that the ‘appropriate … agencies receive the financial means they require to maintain and extend their support to … organizations whose objectives are to foster the arts and letters of cultural groups other than the British and French.’ Similar government support, it suggested, should also be made available to the ‘folk arts of the Canadian people.’ And, finally,

Language Rights

99

the National Museum of Man219 should be given adequate space and funds to carry out appropriate projects in these same areas.220 Beyond their formal recommendations, the commissioners put forward a broad panorama of suggestions for further research, which they found sadly lacking, into the history and activities of the non-British, non-French communities. Research on immigration and ethnic relations, for example, and ‘their effects upon our social, economic, political, and cultural life’ should be given a ‘high priority.’ Whereas in the past they had perhaps been of greater concern to Anglophones, they were now of ‘vital concern to both societies,’ and research in these areas should therefore be conducted by Francophones as well as Anglophones. other cultural groups and multiculturalism – government reactions The subject of multiculturalism more properly belongs below, together with my examination of human rights issues, and will be dealt with there more extensively. I refer to it here only to reinforce my earlier observation that it is one area in which governments moved (with some political enthusiasm, it might be added) much further than the commissioners had ever envisaged. It has always seemed to me that the notion of including ‘other cultural groups’ as a subject for study in the commission’s terms of reference was something of an afterthought, probably for both the government of the day and the commissioners. In any event, the original concentration was certainly on ‘the two founding peoples,’ not ‘the others.’ The sole exceptions among the commissioners’ views were probably individual opinions put forward by Messrs Rudnycyj and Wyczynski, whose interest in languages and communities other than English and French was marked from the beginning. Changing demography, however, was eventually to bring about major changes to the ‘founding peoples’ perspective. ‘In 1961, people of British and French ethnic origin predominated within the Canadian body politic … Since then, the proportion of Canadians of British and French origins has decreased markedly.’221 This developing trend was not lost on Canadian political actors, even as the Royal Commission reports were coming in. Thus, for example, the Citizenship Act of 1947, which had provided for a preference for British subjects in the matter of residence requirements for citizenship, was revised in 1967 to do away with that preference, as indeed the commission itself had recommended.222 By 1971, the Trudeau government had gone into high gear with the introduction of a Canadian multiculturalism policy, ‘the first … in the

100

Transforming Rights

world.’223 In so doing it effectively brought down the two-foundingpeoples notion as a practical political approach outside Quebec, even if it was to live on in constitutional debates and among devotees of the abortive Meech and Charlottetown agreements.224 The 1982 Charter of Rights and Freedoms gave multiculturalism the status that only a constitutional document could provide. And the Canadian Multiculturalism Act of 1988 filled in the details and put the final touches on a picture that we will look at further below. In any event, to return to the Royal Commission, whatever its original interests and biases, the analysis in Book IV of its report certainly put multiculturalism on the map, including one of the first known uses (if not the first use) of the term in Canadian political writing. Thus, it is fair to say, as Professor Magnet does, that the work of the commission forms a ‘cornerstone of modern multiculturalism.’225 A number of its recommendations were followed up: for example, that provinces should adopt human rights legislation and establish monitoring agencies to deal with it.226 Others were less successful: its ideas with respect to enlarging instruction in languages other than English and French in schools and universities, for example, largely fell by the wayside as more and more language courses were dropped from the curriculum. In conclusion, I might observe again that the commissioners were certainly not as direct in their approach to ‘the other ethnic groups’ as they were in setting out their views in regard to the ‘two founding peoples.’ Even more strikingly, governments have in effect reversed that situation, as they became considerably more assertive than the commission could have imagined in dealing with the matter of ‘multiculturalism.’ On the whole, the attention paid to ‘the others’ is in no danger today of being seriously eroded, despite apprehensiveness about a lack of sufficient attention to ‘Canadian values.’ And in any event, the push towards integration in the larger Canadian society is always very strong, as illustrated by high enrolment in courses in English and French as a second language.227 In the circumstances, whatever misgivings it may arouse, I would share the view that ‘The multiculturalism principle creates an obligation to accommodate cultural influences in order to allow cultural minorities to participate fully in Canadian society.’228 This can only serve as a helpful contribution to a healthy society. g) The Federal Capital229 The problem of the linguistic character of the National Capital carries

Language Rights

101

on like a long-running Broadway play. At the turn of the century, I joined with others in speaking at a rally to enshrine a ‘Bilingual Ottawa’ in provincial law – some thirty years after Book V of the Royal Commission’s report had presented the same thesis to the various levels of government involved. Citing a study on the amalgamation of the several municipalities on the Ontario side, I reminded those present that ‘Ottawa is unique among cities in this province and country,’ as the capital of Canada, an officially bilingual country.230 It is also worth noting that the concept of equal partnership is more readily justifiable in the context of the National Capital, without the intellectual baggage it may carry elsewhere, in terms of ‘founding peoples’ and its two-nation cousin. Thirty years earlier the commission had told its readers, in much the same terms, that ‘a capital is a symbol of the country as a whole,’231 and should be treated as such. As a national symbol, as the seat of government, as ‘a meeting place for legislators from every constituency in the country,’ the commission went on to observe, the capital must ‘offer a suitable environment for these activities.’ Yet the fact of the matter was that it was ‘like a foreign territory’ to many Francophone residents or visitors.232 It was clear as a result that ‘equal partnership … was not being achieved in the federal capital area.’233 It was to this issue that the commissioners devoted their attention in the remainder of Book V. Their analysis began with the familiar comparative and historical review, moving quickly to the conclusion that there were two major problems involved. First, it was important for the predominantly Francophone population on the Quebec side to ‘attain a position of full participation in the area’s role as federal capital.’ And, second, the Francophone minority on the Ontario side also needed to ‘attain a position of equality with its Anglophone fellow citizens.’ At the same time, although they had detected ‘no major difficulties and relatively few inconveniences’ for those involved, the smaller Anglophone minority on the Quebec side should not be forgotten.234 In passing, I might observe that, in post-Bill 101 times, there are a number of Anglophones who would argue that they have suffered a good deal more than ‘inconveniences.’ For these reasons, the commissioners had already recommended that English and French should have equality of status throughout the capital area.235 Although they recognized that full equality of the two languages in every province, in the sociological as well as the juridical sense, was difficult to imagine, they considered that ‘such a terri-

102

Transforming Rights

tory should exist with respect to the federal capital.’236 And this, they believed, would mean not only the equalization of linguistic rights but that ‘the full range of services and facilities provided to the public [should] be available in both languages throughout the area.’237 Clearly, the federal authorities would have to give the lead, which thus far had not been the case. In virtually every area, from unilingual signs on public buildings to the failure of the Royal Canadian Mounted Police to provide bilingual personnel on Ottawa parkways, federal policy – or lack of it – had worked to the disadvantage of Francophones. This should be put right by the adoption by the government of a ‘direct, positive role in promoting equal partnership’ in the capital.238 It should begin with service to the public and bilingual signage in buildings under the control of the Department of Public Works, as well as a requirement that all lessors, lessees, and recipients of federal grantsin-aid accept an appropriate language-use clause.239 Further, all federal services should be ‘freely available’ in both languages, and not merely ‘exceptionally or on request,’ and all provincial, regional, and municipal services should likewise be offered in English and French. And, finally, the Government of Ontario should extend the use of the French language in courts sitting in the Ottawa area.240 With regard to education, the commission recognized that ‘large scale changes’ were under way in the matter of French-language education, partly in response to its earlier recommendations.241 It was nevertheless still concerned to level the playing field in the matter of funding, facilities, and teacher qualifications, where Francophone pupils once again suffered by comparison with Anglophones. The commissioners also considered it important to allow for instruction in the other official language ‘without religious and financial restrictions’ being placed on parents who wished their children to do so.242 Finally, they believed that the number of postsecondary French-language courses should be expanded, at both the University of Ottawa and Algonquin College. In the matter of coverage by the mass media, the commissioners believed that both communities were ‘basically well served.’ Nonetheless, there were still ‘certain disparities,’ and they therefore recommended that the CRTC should ‘give priority to the principle of linguistic equality’ in granting future licences.243 More generally with respect to private-sector services, Francophones were often at a disadvantage owing to a lack of bilingual staff and professional personnel. As they still are, I might add. They were also in an unequal position, the commissioners thought, in matters like conven-

Language Rights

103

ient access to transportation and communication services, where, for example, both the airport and the railway station were located south of the city of Ottawa.244 Perhaps more important, there was a continuing disparity in respect of the two communities in the location of buildings owned by the largest industry, employer, and landowner in the region. The federal government therefore had the premier responsibility in all these areas to promote the cultural and economic well-being of the minority, although the cooperation of the provinces and the municipalities would also be required. It was necessary as a result, the commission concluded, to establish appropriate machinery to ensure effective coordination among the three levels of government. They therefore suggested the creation of a ‘Tripartite Agency to be charged with the responsibility for detailing coordination of the programme we have outlined for the federal capital area.’245 Such an agency, they believed, could begin with ‘developmental programmes,’ and move, through ‘an evolutionary process,’ to exercise certain delegated responsibilities, to regional administration, and even, in a final stage, to ‘quasi-autonomous jurisdiction’ over a variety of activities of regional interest. the federal capital – government reaction That the political arrangements I have just described were not to be realized cannot be laid at the door of the commission. Its mission was conceptual: It was to make recommendations, and its recommendations were on the whole quite reasonable. The responsibility for failing to bring them to fruition must fall on others in the political world, where federal-provincial affairs were not the most productive terrain. A particular area of interest, principally though not exclusively in the National Capital, is service provided by businesses operating in buildings owned by the federal government. A study conducted by the language commissioner’s office in 2004246 concluded that more than half their spot-checks in Ottawa revealed that written material was available in English only, though results were better for telephone and inperson services (70 per cent and 60 per cent, respectively). Across the river in Gatineau247 ‘telephone and in-person services were provided in all cases,’ though not all written material was available in English. An earlier recommendation of a 1997 parliamentary committee, that such service was the ‘direct responsibility’ of the federal government, was never followed up, apparently because an election intervened.

104

Transforming Rights

And despite the parliamentary committee, and thirty-five-odd years of cajoling and encouraging from her predecessors, Commissioner Adam has reported that she was ‘equally concerned today, because in more than one-half the cases in Ottawa, signage and other written material still appears in English only. In Gatineau, the situation is far better … though written material in some cases was available only in French.’ She concludes that ‘the National Capital Commission and Public Works will have to play a more proactive role.’248 What is true in government buildings is all the more so in other private enterprises, particularly for service in French in Ottawa, where I can attest that casualness is the order of the day in far too many establishments. It is true that some larger firms, in parts of the city with sizeable Francophone populations, provide service in French, as they always have, but elsewhere it is a chancy business. Even where one might have imagined that the vocation of ‘the nation’s capital’ would carry some weight, it is all too frequently possible to watch a French-speaking customer being taken care of by a resolutely unilingual English salesperson. Nor does this seem likely to change. Across the Ottawa River in Gatineau, however, as I have pointed out with regard to government buildings, the capacity is certainly there in most stores and other businesses, and, on the whole, sensible commercial practice dictates that the service is provided. As it has developed, however, the situation is by no means all bleak. As the commission recommended, federal buildings have gone up on the Quebec side of the Ottawa River, and a handsome museum has been constructed as well. One also hears more French spoken in the capital. Services are much more readily available, certainly from the federal government, and to a degree from the provincial and municipal authorities as well. What has been achieved can hardly be characterized as allowing the Francophone minority to ‘attain a position of full participation in the area’s role as federal capital,’ as the commission put it, but it nevertheless is no mean thing; and it can continue to be built on with a modicum of goodwill on both sides. h) Voluntary Associations249 Unlike other parts of the Royal Commission report, Book VI contains no recommendations. Nevertheless, the matter of voluntary associations is an important segment of the language-equality picture, and their failure on the whole to treat the two languages equally has had

Language Rights

105

unfortunate consequences. The commission put the matter accurately when it observed that the alternatives, generally speaking, were either acceptance by the minority of an inferior status or reform of the organization in question. Otherwise, division into two or more branches or even quite separate entities was virtually inevitable. On the whole, progress towards reform over the years has been very spotty, and the results predictable. Since there has naturally been little government involvement with the voluntary associations, as compared with other aspects of the language problem, their relevance to this study is less direct. But the part played by these organizations is nevertheless considerable in Canadian society, and their relative inability to cope with a dual-language environment has had a ripple effect going considerably beyond the immediate difficulties it may have occasioned for their members. It is true that they had never been a truly mass phenomenon, the commission noted, but ‘the generally more favoured groups within the population’ that made up their membership were precisely those ‘which are particularly influential in making many of the important decisions affecting … contemporary society.’250 It was therefore more than usually significant that, in such a context, the official-language minority group was ‘unlikely to accept a permanent position of inferiority.’ Equal partnership required that ‘virtually all the social institutions … play their part, including, of course, voluntary associations.’251 In the commission’s view, ‘playing their part’ entailed more equal participation by the two groups, and both language and cultural problems worked against the realization of that objective. In fact, one could argue, ‘Most of the difficulties arise essentially from the fact that in many common associations, unilingual Anglophones predominate,’252 and Francophones benefited less from their membership as a result. Beyond linguistic complications, issues of substance could also raise problems, if the policies and objectives of the association were defined by the majority without sufficient regard for the minority. Whether the solution lay in decentralization, for example, or even in procedural innovations like a double majority vote on resolutions253 need not concern us here at any length. Any of these devices could have been helpful if the leaders had been able to reach a cooperative modus vivendi; but without ‘strenuous efforts to overcome obstacles and grasp the opportunities open to them,’ they were unlikely to succeed.254 At all events, whatever stratagems might be attempted, the problem of communications would remain. If national associations were to

106

Transforming Rights

maintain any sense of unity, then someone was going to have to be able to perform in adequate French, with a minimum of linguistic gaffes, which only irritated already sensitive Francophones.255 Bilingual staff, executives, and elected representatives, and simultaneous interpretation or other devices, all would need to play their part in varying degrees, according to the association and its capacities. But one thing was clear in the commissioners’ eyes: ‘The solution of the language problem is a necessary first step for the creation of equal partnership,’ a step that must be taken in conjunction with greater cultural sensitivity and a willingness to understand these realities.256 If the members of such associations were unable to bring about appropriate reforms, they might be tempted to ‘evade or resolve’ the problem by ‘separating to form two associations’; but this could be ‘an expensive solution’ and one that ‘makes the whole country poorer.’257 Moreover, if Canadians became ‘increasingly segregated into respective ghettos’ in their ‘associations, economic enterprises, and artistic and intellectual concerns,’ they would also ‘find it more difficult to collaborate at the political level.’258 Thus, as seen at the time, the stakes were higher than some might have imagined, and, in the commission’s estimation, certainly worth a substantial effort to accommodate the minority. Voluntary associations were of course private institutions, and must be allowed to ‘carry out their affairs without interference by the state’; for that reason, the commissioners made no recommendations. Nevertheless, they expressed the belief that governments, and particularly the Department of the Secretary of State259 at the federal level, could doubtless assist the associations – for example, with such matters as interpretation. They therefore suggested that discussions towards that end should be put in hand. Other federal departments that already offered assistance to voluntary associations, and the provincial authorities, should also participate. For some associations, measures designed to change language-use policy, and to achieve greater cultural sensitivity, might well require a ‘radical reorganization.’ Nevertheless, they were ‘essential to improving relations between the two groups,’ and to demonstrating ‘the will of Canadians to live a life in common.’260 Even though the commission made no formal proposals, it is worth noting that the government at the time did not ignore their preoccupations, and indeed made an attempt to encourage reform. For example, in my time in the Secretary of State’s Department, we established a program to provide grants to finance interpretation, and some organiza-

Language Rights

107

tions made use of it. Nevertheless, old habits die hard, and there were few that showed any enthusiasm or were prepared to look at minority participation with a more generous eye. With the result that, as foreseen, various institutions split apart, with predictably negative results for a national outlook in their areas of interest. And with few exceptions, English continues to dominate whatever national organizations remain, and most national conferences continue to be held predominantly in that language. Further, an ungenerous attitude persists, as do many of the old excuses: ‘Everyone understands English; why pay for unnecessary frills like interpretation?’ can be heard from some Anglophones today as much as in 1970. And in contemporary Quebec, I regret to say, much the same comment will not infrequently be made about French as a language of conferences within that province. 4 Summary of the Royal Commission’s Proposals and Government Reactions Taken together, the Royal Commission’s design for dealing with Canada’s ‘crisis,’ and governments’ responses to its recommendations, form a substantial and complex picture, historically, legally, and in terms of their effect on everyday Canadian life. As a result, I think it worthwhile to review briefly what the components were about. For such an immense piece of research into an equally multifaceted Canadian problem, going to the heart of our history and weighing so heavily on our future, the report comes down to relatively few fundamental themes. Apart from a valuable historical analysis of how we had got to where we then were, and an equally perceptive comparative assessment of solutions adopted elsewhere, what the commissioners gave us in essence amounts to a careful examination – a sociolinguistic MRI as it were – of the Canadian body politic, a diagnosis of the illnesses besetting the system, and a set of proposed remedies. The commission’s examination revealed what must have seemed, at least to many Francophones, a crushingly obvious set of problems of which they had been aware for donkey’s years. That their language was virtually invisible in the corridors of power, to the extent that, more than a century after Confederation, putting it on government cheques was considered a bold political move. That they had to expect to leave it in the cloakroom, as they put it, when they arrived at work. That their education system and cultural mindset were apparently perceived as so deficient that a major government minister or the head of an impor-

108

Transforming Rights

tant crown corporation could wonder about the availability of French Canadians sufficiently competent to be hired into a senior position. In short, that their entire approach to modern life was simply not taken seriously by English-speaking Canadians. On the Anglophone side, the symptoms took more subtle forms. Of course, there were those who were openly anti-French, but most were more likely to have fallen prey to indifference or ignorance. After all, a Pelletier or a Leblanc spoke English so well – what was the problem about their working in that language? Furthermore, English was the language of North American business, and for that matter of international intercourse, and they should get used to living in the real world. French might well be used in Quebec, although even there one wondered about a cosmopolitan centre like Montreal. But it was not practical to suppose that it could coexist with English on a pan-Canadian basis in the latter half of the twentieth century. ‘Two solitudes’ is quite literally no exaggeration. It is small wonder, in the circumstances, that the commissioners asserted that Canada was passing through what they called ‘the greatest crisis in its history’; and moreover, that most Canadians were not ‘fully conscious of the fact.’261 And further, that the source of the crisis lay in Quebec, where ‘the state of affairs established in 1867’ was ‘for the first time being rejected by the French Canadians’ in that province. If this was their diagnosis, their remedy was twofold. First, recognition of the overriding significance that attached to accepting the notion of ‘equal partnership’ between the ‘two founding races.’ And second, a series of proposals which, as they saw it, would contribute to the establishment of that state of affairs. The principal measures for achieving it that the commission placed before government and the latter’s responses (in italics) are reviewed very briefly below. a) The Constitution Section 93 of the British North America Act should be altered to provide for minority-language education. Section 133 should apply to New Brunswick and Ontario, as well as to Quebec and the federal authority. It should provide, as appropriate, for the establishment of bilingual districts. Minority-language education was provided for in the 1982 Constitution. New Brunswick has been declared a ‘bilingual province,’ whereas Ontario and Quebec have not. No constitutional provision was adopted concerning bilingual districts.

Language Rights

109

b) Legislation The federal government should enact an Official Languages Act, declaring English and French to be Canada’s official languages, and providing for equality of status of those languages in federal institutions. The provinces of New Brunswick, Quebec, and Ontario should do likewise. A commissioner of official languages should be appointed to ensure respect for that status. The officially bilingual provinces should take similar steps. A federal Official Languages Act was enacted in 1969, and subsequently amended in 1988 and 2005. New Brunswick also adopted an Official Languages Act; Ontario passed a French Language Services Act; and Quebec adopted legislation establishing French as the official language of the province. Federal and New Brunswick commissioners of official languages were appointed; Ontario appointed in 2007 a commissioner of French language services, who reports to a minister rather than being directly responsible to the legislature; no similar action was taken by the other provinces. c) Government Administration Bilingual districts should be established in census divisions with a minority population of 10 per cent or more. In those districts, and in the National Capital, services should be made available in both English and French, at the federal, provincial, and municipal levels. No federal bilingual districts were established. Services are, however, provided in certain of these regions, at the federal, provincial, and municipal levels d) Education Minority-language education should be provided in officially bilingual provinces, in bilingual districts, and in the National Capital. Similar arrangements should be made, where ‘practicable,’ in major urban centres. Outside the bilingual districts, the conditions under which parents could exercise such rights should be specified. French-language education at the university level should be provided where potential enrolment made it feasible. The federal government should accept the responsibility to defray the additional costs entailed in providing minority-language education. Minority-language education is provided across the country. Federal subsi-

110

Transforming Rights

dies are also provided. Minority-language education at the postsecondary level is accessible in several provinces. Second-language instruction should be compulsory in Canadian schools. Provincial governments should establish training centres for second-language teachers, and an interprovincial bureau of secondlanguage training centres should be created to ensure appropriate coordination, with federal financial assistance towards meeting operational costs. The federal authorities should meet the cost of a one-year transfer program for students specializing in the study of the second official language. Second-language instruction is available across the country, but is, generally speaking, not a compulsory subject. Federal assistance has been provided, but the administrative structures envisaged by the commission were not created. There are private exchange programs, some of them at least partially subsidized by public funds. e) The Work World In the federal public service, French Language Units should be created, and should be seen as ‘a basic organizational and management principle.’ A Public Service Language Authority should be established to ensure coordination. A French-language ‘sector’ should be established in the armed forces in Mobile Command, and French-language units set up at Headquarters and elsewhere as appropriate. No French Language Units were created, although similar entities were established, with mixed results, in both the federal public service and the armed forces. In the private sector in Quebec, French should become the principal language of work at all levels. Under Bill 101, French is the language of work in Quebec in most cases, although it remains a mixed language regime in others, especially where contact with business or industry outside Quebec is frequent. f) Other Ethnic Groups Fair employment and human rights legislation should be extended to all provinces, and should be monitored by full-time commissions or specialized agencies. With differences of approach from one jurisdiction to another, this has been achieved provincially. Appropriate legislation has been adopted at the federal

Language Rights

111

level as well. Human rights commissions operate at both federal and provincial levels. Conditions for citizenship, and the right to vote and stand for office, should be the same for all individuals, regardless of their country of origin. This is the case, both federally and provincially. Private schools teaching in languages other than English or French should continue with appropriate support, but there should be no generalized program of public financial funding for such schools. Indirect subsidies for the ‘ethnic press’ should continue. The CRTC and CBC should remove existing restrictions on broadcasting in languages other than English or French. Private school subsidies meet the first recommendation, though not equally in all provinces. ‘Indirect press subsidies’ continue. According to the CRTC, Canada’s broadcasting system now provides several third-language programs, on both radio and television. g) The Federal Capital The two official languages should enjoy full equality of status, and all federal, provincial, regional, and municipal services should be ‘freely available’ in both English and French. No legislation creating English and French as ‘official languages’ has been adopted by the provinces of Ontario or Quebec, or the municipalities of Ottawa or Gatineau. However, many services are provided in both languages. A ‘Tripartite Agency’ comprising representatives of the federal government and the provinces of Quebec and Ontario should be established to ensure coordination. No such agency has been created. h) Voluntary Associations No formal recommendations were made, but the importance of equal partnership, language reform, and cultural sensitivity in these organizations was emphasized. The federal government has offered subsidies for interpretation and translation to various voluntary associations. Such were the salient elements of the prescription devised by the

112

Transforming Rights

Royal Commission to remedy the problems they had identified, and the legislation and other measures adopted by the federal and provincial authorities. As a general observation, it is worth noting that the proposals of the Royal Commission were on the whole both reasonable and practicable. They never expected that the two main linguistic communities could ‘enjoy … advantages … throughout the country on an equal footing.’262 In other words, the ideal had to be tempered with realism; and panCanadian bilingualism, on the basis of identical treatment for both groups, whether in government services, the language of work, or education, was not feasible. Even less was genuine individual bilingualism – Canadians able to speak both languages, in significant numbers and from coast to coast. Thus, whatever the shortcomings of the commission’s recommendations or government reactions, the simplistic argument that ‘bilingualism has failed’ because such objectives were not met is simply to misunderstand (deliberately, perhaps, in some cases) what was intended. Much of the reaction to the commission’s reports was positive. Much was not. Matters that seemed controversial at the time no longer do. Other issues continue to trouble the political authorities, the media, and the general public. It should not be forgotten that the whole Royal Commission process lasted longer than the biblical seven years: it encompassed all Lester Pearson’s years in office, and the first term of Pierre Trudeau’s regime. And it coincided with the gathering storm that broke over Trudeau in the 1972 election, a storm that many Francophone observers blamed in no small measure on the Anglo reaction to his bilingualism policy. Certainly Gérard Pelletier and Jean Marchand, two of Trudeau’s closest associates, who spoke to me after the election, were of this opinion. Perhaps too was the Prime Minister himself, and some of the steam went out of the program as a result, though his personal commitment to the principles never wavered. The endeavour was nevertheless carried forward by the Mulroney and Chrétien governments, and to a degree by Paul Martin’s with regard to amendments to the Official Languages Act. However, I sense that a comfortable resting on the oars has now replaced the vigorous efforts of earlier days. And, regrettably, I have no reason to think this will change during Prime Minister Harper’s years in office, even though the government has introduced a ‘road map’ for further language reform and reaffirmed its ‘renewed commitment to Canada’s linguistic duality’263 over a five-year term. At the same time, the achievements at the consti-

Language Rights

113

tutional, legislative, and administrative levels have been very considerable, perhaps more than in any other country in the Western world, with fewer problems and more political peace than many of us would have expected. Viewed at the end of the commission’s work, and perhaps indeed to this day, a second overarching question nevertheless remains, as to whether the measures for language reform that the commissioners proposed can be followed through without necessarily accepting the dualistic principle that at least some of them regarded as fundamental. I obviously believe they can, but others doubtless see the matter differently.

This page intentionally left blank

PART THREE Human Rights

1 Introduction For most purposes, it is sufficient to trace our contemporary thinking about rights to Locke and Rousseau and the eighteenth-century American constitutionalists. Looked at in more comprehensive historical terms, one could of course carry the search for a rights foundation backward in time almost without limit. The Sophists wrote more than two millennia ago, for example, about equality of rights for all, just as Antigone spoke of ‘unwritten laws which live always and forever, and no man knows from where they have arisen.’1 And we used to learn very early in life that one should render unto Caesar what is rightfully Caesar’s. Indeed, outside Hobbes’s state of nature, human intercourse without rights and reciprocal duties is difficult to comprehend; so much so that the Hobbesian war of all men against all men is conceivable only as an intellectual construct designed to explain the need for and usefulness of society. The etymology of that word is no accident: men and women cannot live in total isolation from one another; they cannot exist except as partners, that is to say in ‘society.’ And society, however rudimentary, entails rights and obligations. If one person is to help another dispose of a wild animal in return for a haunch of meat, then in some sense he has a claim to that haunch, and his hunting partner a duty to provide it. This is true not only for reasons of abstract morality but because such hunting would otherwise be impossible. No particular set of rules is necessary to sustain mankind, but rules there must be: humanity in the total absence of any accepted, conventional patterns is unthinkable, indeed virtually meaningless. What we are talking about, therefore, when we speak of notions of

116

Transforming Rights

rights that go back to the eighteenth century is something more ambitious. It is a manner of discourse, a way of conceiving a rights regime that places it at the head table of human values. Consequently, it is important to give it greater credibility by conceiving of it as antedating man-made laws, as having been set down by the Creator, or as a part of the natural firmament. As a result, it is no accident that we are told, for example, that ‘all men are created equal,’ that their rights are ‘unalienable,’ and that these truths, like eternal and immutable axioms, are ‘self-evident.’2 It follows that this situation is not one that can be established – or taken away – by any government. Nor is it of any consequence that the rights in question have, as often as not, been honoured more in the breach than in the observance. Virtual genocide in relation to the Aboriginal peoples in post-Columbian America; slavery and persistent discrimination against blacks; the inferior position assigned to women; racist immigration laws; indeed, an almost endless list of affronts to equality and human dignity down the centuries in no way affects the unassailability of the ideal. For more than two hundred years there has been essentially no change to the principle that ‘all human beings are born equal in their rights and dignity.’ But change there has been in practice, both in the extension and refinement of our ideas about rights, and in the mechanisms that individual states and the international community have established to monitor and enforce them. The ‘rules of war,’ adopted to begin with in the nineteenth century and developed in the twentieth, the emergence of international humanitarian law at the end of the First World War, and the inter-war interest in minority rights in Europe are only a few of the more obvious illustrations. However, the major changes came about as a result of the Second World War. When the United Nations Organization was founded in 1945, the promotion and protection of human rights was one of its fundamental goals. The U.N. Charter proclaims unequivocally in its opening lines that ‘the peoples of the United Nations [are] determined to … reaffirm faith in fundamental human rights ... and to promote social progress and better standards of life in larger freedom ...’ It goes on to urge the United Nations to promote ‘universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.’3 On that foundation, there developed one of the major accomplishments of the international community in the postwar era: the acceptance and enshrinement of guiding principles of human behaviour, which, whether honoured or

Human Rights

117

not in practice, constitute goals and objectives that are a beacon for all humankind. Foremost among these achievements is the Universal Declaration of Human Rights, adopted in 1948. It is interesting to note that Canada almost voted against or abstained in the vote on the Declaration. There are commentators who attribute this to very sinister motives indeed, but most observers seem to be prepared to accept the more prosaic proposition that it was fear of intruding in provincial jurisdiction that was worrying the federal mandarins. In any event, in the end, good sense prevailed: Canada voted in favour, and thus avoided finding itself in bed with the Soviet bloc states and one or two others. The principle endorsed in that text, ‘as a common standard of achievement for all peoples and all nations,’ once again reinforces the belief that ‘all human beings are born free and equal in dignity and rights.’ From that beginning, the Declaration goes on to reaffirm the fundamental freedoms – political and social, individual and collective – that we have come to accept as the defining characteristics of civilized society. However, it is just that, a declaration, not a treaty: the world was to wait another twenty years for binding agreements on human rights. The Universal Declaration gave rise in the nineteen sixties to two wide-ranging human rights covenants or treaties, dealing with civil and political rights and with economic, social, and cultural rights. Adopted by the U.N. General Assembly in December 1966, they came into force in 1976. At the time of writing, 160 countries were parties to the Covenant on Civil and Political Rights and 156 to the Covenant on Economic, Social and Cultural Rights. 2 The Universality of Human Rights Norms For many years, however, it has been argued by some that these norms are not genuinely universal, because they fail to take account of wide cultural differences across the world. Or because they were adopted at a time when the United Nations comprised only some fifty-five countries, many of them colonial regimes or Western or Soviet-dominated governments whose experience was and is irrelevant to the hundreds of millions of people who constitute the majority of our global population. At one time, there was considerable truth in this argument, but it now has to be taken with a sizable grain of salt. First of all, because the

118

Transforming Rights

same principles were reaffirmed in 1993, at the World Conference on Human Rights in Vienna, at which the vastly increased membership of the United Nations was represented.4 And, second, because they were approved unanimously despite the obvious cultural, economic, and other differences among the states involved. Moreover, they include the explicit statement that ‘human rights are universal,’ and that, while ‘the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all fundamental rights and freedoms.’5 What the world community has in fact put together is a body of internationally endorsed norms, of more than half a century’s standing, repeatedly reinforced by further treaty obligations that are binding on most members of the United Nations, including Canada. This does not mean, of course, that anyone would argue that they are universally and consistently implemented, or indeed, in some states, that they are implemented at all. Human rights workers may be idealists, but they are not blind to reality. We all know that these principles are often ignored in practice, but that does not mean that they are rejected as principles. And furthermore, in spite of what one may read in the Western press, there are few, if any, countries that are prepared to challenge them directly. My own experience as a member of the U.N. Human Rights Committee suggests that they rarely, if ever, contend that they are no more than Western values that are irrelevant to their situation. To the contrary, I have heard country after country – some of them very difficult to hold up as human rights defenders – come before the committee and assert that, while discrimination against women, for example, or female genital mutilation, may be hard to eradicate in practice, it is illegal in their country, and that equal rights for women are legislatively or constitutionally guaranteed just as they are elsewhere. And within the framework of their laws and traditions, they mean it, as far as I can see. They may be deluding themselves, but they are not deliberately lying. There is a difference here that the West would do well to bear in mind. 3 Perspectives on Human Rights From the international precedents, there have also arisen various constitutional provisions and laws guaranteeing the rights of Canadians: provincial labour laws and human rights codes, for example; pro-

Human Rights

119

vincial ombudsman legislation; the Charter of Rights and Freedoms; the Canadian Human Rights Act; the federal Employment Equity Act; and a wide range of rights-related statutes, both federal and provincial, in areas as diverse as language, privacy, access to information, and employment equity. And several agencies have been established to monitor and enforce these arrangements. Taken together, they form one of the world’s most comprehensive and effective instruments for the protection of human dignity and equality, and there are few nations that are as well endowed with human rights protection under the law. That this is not the whole story will also be clear as we proceed. a) Narrow and Broad Approaches First of all, however, it is important to note that when the term ‘human rights’ is used in the context of Canadian law, what is usually meant is the right to be free from discrimination – for example, because of one’s age or sex or racial origin. These ‘prohibited grounds’ of discrimination, as they are called, differ among various federal and provincial jurisdictions, but they are largely similar in intent. The statutes in which they are set down would be more accurately described as antidiscrimination legislation rather than human rights laws, for there are other rights that are protected by the international covenants or political and legal rights enshrined in the Charter with which they do not deal. As in many areas, Quebec is different: the Quebec Charter of Rights covers political, legal, and other rights, as well as the equality rights that are the subject of the federal and other provinces’ legislation. Most human rights observers would argue further that where there is a right, there ought to be a remedy, and some would also say that where there is no remedy, there is no right. The first of these propositions has a very long legal pedigree, enshrined in British law for centuries,6 and expressed in the Latin tag ubi jus, ibi remedium: where there is a right, there must be a remedy. It should be added that it has also been affirmed by the Supreme Court of Canada in stating that ‘the Charter … ought to be interpreted purposively … A purposive approach to remedies in the Charter gives modern vitality to [this] ancient maxim.’7 On the other hand, although the second dictum follows from the first, it seems to many people to be trickier to handle, and, as a result, they find it difficult to accept. They feel that somehow it is not as it should be that, because no remedy is available, there is no accepted right in

120

Transforming Rights

relation to such matters. It is easy to appreciate why they react in this way, and the solution to the apparent conundrum probably lies in distinguishing areas where a remedy should be available, even if it is not in practice in a particular place or at a particular time. So, for example, even though a woman may have no recourse against forced marriage in certain societies (no remedy in practice), she ought to have such a remedy in principle, and the right itself is thereby recognized. But one consequence of this way of thinking is that the expression ‘the right to’ can move towards a very broad construction indeed. With the result that the relatively restrictive approach of most Canadian human rights agencies is in direct contrast to the exceedingly vague interpretation given to the term ‘rights’ in public discourse. The latter notion has been expanded to include all manner of things, to a point where the word has at times been virtually emptied of meaning. Some will claim, for example, that there is a right to get to work in the morning, as I once heard during a bus strike. ‘The public has a right to know’ is a doctrine much promoted by the media. ‘If diplomacy fails,’ we sometimes hear, ‘the United States reserves the right to use force.’ There is even the right to go bare-breasted in public, as I have seen argued by young feminists. I am not necessarily advocating a narrow use of the term ‘rights’ on all occasions, and there is perhaps no harm in any of this, except for accuracy of thinking. However, it does need to be recognized as the unspoken and unexamined context in which the rights debate is carried on in Canada, and it can occasion a degree of confusion when an overly broad use of the term takes on some currency. b) Rights and Responsibilities In much of my time as human rights commissioner, I heard more often than I cared to that ‘people go on and on about rights; they never talk about responsibilities.’ And indeed there is some truth in this idea: to a degree we have become a society whose members view themselves as victims when something goes wrong: we are not responsible – we have been done a bad turn by our genes or our early childhood or the circumstances in which we find ourselves. This is no doubt at least in part another illustration of the action-reaction paradigm to which I have referred elsewhere, a response to earlier, less charitable ways of looking at the human condition. According to which, for example, poverty was one’s own fault, and indebtedness a good enough reason for throwing a person into prison. Or single mothers had ‘no one to blame but them-

Human Rights

121

selves.’ This kind of attitude goes a long way to explaining the ‘rights industry’ as we know it today, and the ‘responsibilities’ controversy is no exception. We need to look more closely at some of the issues involved – but not to the extent of joining in the concerns of professional philosophers and their immensely complex peregrinations in the forest of ethical and social theory. It is not that the musings of moral theorists about the intricacies of the meaning of ‘rights,’ ‘duties,’ ‘obligations,’ ‘responsibilities,’ and their interrelationships are not relevant to the debate. They are. But in another sense they are beside the point. I simply do not believe that that kind of analysis can explain why ‘rights’ have trumped ‘responsibilities’ in the years since the war. Rather, it seems to me, the rationale is at once simpler and more fundamentally human. In a word, it is that rights are endangered and responsibilities are not. The one needs protecting; the other does not. One of our first obligations, after all, is to obey the law. And most of us do, most of the time. And those who do not are punished for it, even those who may have refused to do so for what they perceive as good, moral reasons. If, for example, a person declines to pay taxes because a part of them are used for military spending, others may sympathize with the offender, but that will not keep him out of court. Even moral responsibilities, while they may be shunted aside on one pretext or another, are generally respected if they have societal support. And the obligations of one person vis-à-vis another may be enforced through contracts, or if the contractual element is missing, as something that society expects will be respected. Rights, on the other hand, have been consistently threatened down the years. Whether we are talking about fundamental rights, legal rights, or equality rights, it is clear that there have been and continue to be violations, globally and on a frequent basis. There are huge swaths of human society where free speech, for example, is not possible. Or where women’s rights are ignored. Or where racial or ethnic minorities are treated with contempt. Which, to come back to my initial point, is why they need protection. Hence the vast network of initiatives designed to achieve this end that have grown up in the last sixty-odd years: the Universal Declaration, the human rights covenants, and the domestic constitutional and legislative measures that have formed the foundation of the world-wide approach to human rights in the last half of the twentieth century and will continue to do so in the years ahead. As will human rights agen-

122

Transforming Rights

cies, courts, tribunals, and other monitoring agencies, without which grand pronouncements would be meaningless. And with all of which Canada is equipped as generously as any country I know. Of course, one may offer the rejoinder that none of this goes to the significance of recognizing responsibilities as well as rights. One could evidently put together a lengthy treatise on this subject as well. But I hardly think we need a Universal Declaration on Responsibilities or a Charter of Duties. They are manifest in their own way, and largely selfenforcing. That they may tend to be ignored in parts of modern society is another matter and perhaps one of major consequence for humanity. But that does not mean that we should confuse them with human rights and the need to protect them, in both international and domestic law. c) The Pendulum Effect and the Rights Industry The rights culture as we know it in North America has developed as an almost inevitable reaction to the excesses of earlier years. Not so very long ago, the authorities could and sometimes did behave in an almost totally arbitrary manner. The internal discipline of the armed forces, a law unto themselves, was a perfect example, but certainly not the only one. Doctors and pastors (usually male), teachers, lawyers, indeed almost anyone in a position of authority, could act arbitrarily with virtual impunity, pretty well unquestioned in all but the most egregious circumstances. In reaction to that situation, ombudsman offices, human rights commissions, access-to-information agencies, and similar machinery were slowly put in place across the Western world. Now, a few decades later, that same world – or at least the North American portion of it – has been turned on its head. Extreme versions of affirmative action or quotas based on race or sex have become commonplace in some areas. Watchdogs of all sorts and sizes (some not far from being as arbitrary in their procedures as the Ancien Régime) have been set up to monitor the workplace and the university campus. And lobbyists of all kinds are in action everywhere. On top of which there has developed a degree of ‘political correctness’ that some find more than a little disturbing and a ‘rights industry’ (together with special interest groups that are an integral part of it) that appears to believe that it is the squeaky wheel that gets the grease. In this context, the wild accusations that swirl about Canada’s human

Human Rights

123

rights agencies and the courts are hardly surprising, however inconvenient they may be for the players. d) Rights and the Press Many of these phenomena result in some measure from the attention given in this country, indeed in all Western countries, to free speech, as compared with other rights, and the role of the press in promoting it. There is obviously an intimate connection, a persistent tension, between various individual and group rights, on the one hand, and freedom of expression on the other. There are legitimate arguments to be made on both sides; and there ought to be some possibility of intellectual accommodation among people who are reasonably objective. Partial exceptions are the media, which play a huge role in the whole affair, and not always an entirely neutral one. A free press is ‘the bulwark of democracy,’ as the media are fond of reminding us. By and large, that is true. But this role brings with it significant responsibilities with respect to accuracy and objectivity that are too often ignored. Many of the problems of the human rights world are exacerbated by written and electronic media that thrive on exaggeration and sensationalism and have little regard for accuracy when it suits them not to. The tricks of the trade are well known. First of all, a story has to be put together. Often this entails finding a quotation to give an air of verisimilitude to whatever thesis the journalist is trying to promote. In my time as language commissioner and human rights commissioner, if I obliged with a zippy one-liner, preferably critical of those in authority, I took my place among the various ‘experts’ whose opinions were being sought. But if I took a more cautious approach, to the effect that perhaps the matter was not as straightforward as it seemed, that this or that ‘politician or bureaucrat’ might not be totally foolish, then I was simply eliminated from the picture, and the journalistic investigator passed on to the next source until he found someone who fitted in with the sketch he was developing. Some time ago, the editor-in-chief of the Globe and Mail offered this comment on the same subject: ‘some reporters in some news organizations either are lazy in using their Rolodex to round a story with quotes from the usual indifferent sources, or indulge in the greater sin of intentionally colouring news through quoting someone who shares their views.’ Or as expressed in another way by a highly respected former journalist,

124

Transforming Rights

the late George Bain, ‘there is no real freedom of speech if the media do not provide an outlet for other viewpoints more nearly equal to the outlet they reserve for their own …’8 Another approach is even simpler: it has been described succinctly by Margaret Wente, herself a columnist, in relation to a minor contretemps at the Canadian Television Network (CTV) that regrettably resulted in the loss of a newscaster’s job. ‘The way it works is this: you catch someone out, then you phone all the interest groups, point out the offending remark, and print their horrified reactions.’9 The ‘right of free speech’ also makes a good club to beat the establishment with, and the ‘public interest’ can sometimes get confused with ‘what interests the public,’ that is, what sells newspapers. One must never forget that the business of the press is just that, and that there is an inherent conflict of interest in any argument to the effect that freedom to publish the gory details must inevitably take precedence over any other consideration, whether individual privacy or even what used to be called ‘civility’ in a world long since disappeared. Together with this, a fascination with uncovering secrets has profoundly influenced the way the media go about their job. ‘In every young reporter in America,’ Alan Fotheringham has remarked, ‘there is the burning desire to find another Watergate, and thus fame and fortune …’ Or as it has been put in a slightly different manner by the New York Times columnist Thomas Friedman, ‘Hell hath no fury like journalists with a compelling TV story where they get to be the heroes and the government the fools.’ All this cannot but have an impact on consideration of public issues, especially controversial matters like human rights – careful consideration of complex questions does not sit well with shoot-now-and-think-later journalism. Finally, an objective assessment of rights issues can only suffer from the antics of media and political figures, who are locked in a symbiotic embrace, each feeding on the other. To take only one example, ritual references in Parliament and the press, repeated over and over, to the issue of public safety and a burgeoning crime rate cannot fail to undermine the more accurate message that crime is not going up, it is going down … that parole works … that there are better ways to deal with dysfunctional behaviour than putting the individuals concerned in prison … and so on. This in turn reinforces a negative public environment in which reason cannot win, for one can never ‘get tough’ enough in this kind of contest. In a world of this sort, human rights agencies and even the courts are perceived as little more than victims of extremist special

Human Rights

125

interests. It is not a happy arena in which to practise the human rights trade, but the one in which all players must learn to operate. I would not want to leave this subject without making it clear that I have no personal animosity towards the media, electronic or print. On the contrary, in my time in both commissioner jobs, I was treated very fairly. Moreover, we have many first-class columnists and journalists in this country. The fact remains, however, that we also have sloppy or indifferent ones who can do great harm in complex and emotional areas like human rights, and in demeaning important principles in the name of freedom of speech. e) Conflicting Rights I have already discussed the perceived conflict between rights and responsibilities. But differing sets of rights themselves are often felt to be at odds with one another, and fierce battles persist over which should prevail. It is worth stopping for a moment to consider whether and why that should be so. There are, however, so many possible categories and so many illustrative examples of each that we need to circumscribe the terrain if we are ever to emerge from the jungle. As a result, I will try to look very briefly at a few broad groupings: first, what one might call conflicting social objectives; second, individual versus group rights; third, the question of collective rights; and finally, social and economic rights versus political rights. To choose only one simple illustration from the first category, one might look at freedom of speech versus the prevention of hate propaganda. Clearly both are desirable in any civilized society, but they are often seen as being in conflict. Need this necessarily be so? Except as between unrepentant hate mongers, on the one hand, and over-committed freedom of speech freaks (or unconditional promoters of the First Amendment, to look south of the border), on the other, I do not see why they should be. I think we can all agree, to begin with, that incitement to violence is rightly prohibited. People cannot be allowed to harangue a crowd to work up passions for a lynching, to put the matter crudely. And the closer one gets to that limit, the less likely is free speech to appeal as a defence to reasonable observers. Yet there is a grey area in which it may seem to some that anything goes. That the guns have yet to fall silent over these disputes in Canada has been amply illustrated in the recent wrangling over human rights

126

Transforming Rights

complaints launched by three Muslim law students over allegedly anti-Muslim articles, and one in particular by the journalist Mark Steyn, published in Maclean’s magazine and on their website. A furore has been generated around this affair in the press, for the complaints appeared to be directed against the media themselves. And absolutist freedom-of-speech partisans who believe that ‘the right to express hatred against people, ideas, groups or communities is fundamental’10 are at loggerheads with those who take the view that some limitations must be accepted. Canadian human rights agencies have been trapped in the crossfire, for the Canadian and Ontario commissions and the B.C. tribunal have all been seized of the issue. Both the federal commission and the B.C. tribunal have dismissed the complaint; the Ontario commission has also said it could not deal with it for want of jurisdiction. Meanwhile, the Canadian commission launched an independent review by Professor Richard Moon, of the University of Windsor, into section 13 of the Canadian Human Rights Act, the key clause that forbids the dissemination ‘by means of the facilities of a telecommunications undertaking’ of ‘any matter that is likely to expose a person or persons to hatred or contempt’ on the grounds of race, ethnic origin, or other ‘prohibited ground of discrimination.’ Professor Moon’s report was released on 24 November 2008,11 with his major recommendation being that section 13 should be repealed and hate speech dealt with under the Criminal Code. Failing a decision to that effect, the section should be amended to tighten up its language and to eliminate ‘complaints from private parties,’ leaving the commission with ‘the exclusive right to initiate an investigation in section 13 cases.’ Following further consultations, the commission intends to make its own report and recommendations to Parliament. It is worth noting that section 13 is not a new prohibition, for it has been included in the act since its inception more than thirty years ago. It is a more recent amendment designed ‘for greater certainty’ explicitly to include the Internet, with all the wide-open communications that it involves, that has exacerbated the whole issue to an extent that was never anticipated. Furthermore, it should be emphasized that the Moon report itself observes that only a very small percentage of complaints addressed to the commission (seventy-three, or some 2 per cent in the period 2001–8) involve section 13; and that an even smaller number were sent to a human rights tribunal and judged to have been in violation of section 13 (sixteen, or roughly 0.04 per cent). And finally, the

Human Rights

127

report notes that, of the few cases sent by the commission to the tribunal, almost all involved ‘extreme and hateful’ expression, rather than harmless jabs, as one might conclude from some media reporting on the matter. In the circumstances, and given that the Supreme Court of Canada has upheld the section’s constitutionality, I fail to see how the public interest would be served by repealing section 13. At the same time, I do not doubt that it may be useful to re-examine it, in a parliamentary committee, for example, and perhaps to introduce amendments that would clarify its meaning. Although there has also been extensive dispute before the Canadian courts regarding the matter of overly broad statutes, particularly the Criminal Code, that may go too far against freedom of expression, the courts have generally accepted that free speech cannot be seen as an absolute that trumps all other rights considerations. Especially in a country like Canada where so much attention has been given to equality rights and multiculturalism, it would be a ‘perverse contradiction,’ in the words of Justice Cory in the Andrews case,12 to use the Charter to overturn legislation designed to protect those very values. Although the American courts often appear to go in a different direction, I think it is safe to say that legislation and jurisprudence in most comparable societies are in concord with Canada’s view of the matter. For my own part, I believe that while most of us uphold the right of free speech as important in a democratic society, particularly in the Internet era, we also believe that ‘hate speech’ can have serious consequences and cannot be exempt from any limitations whatever, simply because it has been carried in the mass media. As one human rights commentator has put it, ‘The media should not enjoy more rights or immunity than any one else.’13 After all, just how far is speech as such removed from inciting people to take action against vulnerable groups? And where has that led in the past with, say, blacks and Jews? I cannot believe that throwing aside the worldwide condemnation of that kind of conduct – in the Universal Declaration of Human Rights, the U.N. covenants, and even our own Charter of Rights and Supreme Court decisions based on it – would be acceptable to Canadians. On the other hand, it strikes me that the slightest disparaging remark about, say, an ethnic or racial minority or even a joke (so-called) in bad taste is in a different category. It may be just that, in bad taste, but is probably not inadmissible in an open society. In the Steyn case, and recognizing that such judgments are always somewhat subjective, I

128

Transforming Rights

should say that I have read his article and do not find it entirely beyond the bounds of tolerable, if tainted, comment, or believe that I would have taken a decision other than to dismiss the complaint, had I still been serving on the Canadian Human Rights Commission. One last observation: individuals who are in the public eye who make such remarks, or indeed stray very far at all from the politically correct, pay dearly, as we have seen often enough. However unfair that may be, and I believe it commonly is, it was their own choice to place themselves in a position where they chance the public wrath, and I suppose they must be prepared to live with the consequences. With regard to individual versus group rights, although many interpretations of human rights principles insist that they are confined to individuals, and that the international covenants and even our own Charter may be read in that way, we in Canada nevertheless have great regard and support for group rights. That is to say, rights that can be enjoyed only as a member of a group, of which the clearest example is probably language rights, including minority-language education rights. I recall from my time on the U.N. Human Rights Committee that colleagues would consistently remind me that we should always speak of rights in terms of the individual person. And that this maxim should prevail even in the case of rights like those guaranteed in article 27 of the Covenant on Civil and Political Rights, which explicitly refers to minorities that ‘shall not be denied the right, in community with the other members of their group, to enjoy their own culture and practise their own religion, or to use their own language.’ We in Canada have come to look at the matter rather differently. Chief Justice McLachlin has observed that ‘Recognition of group rights is bred in our soul.’ It is certainly not American, and ‘not in the European constitutional tradition.’ But as far as Canada is concerned, ‘It is the stuff that constituted us as a nation and the means by which we have managed to stay together.’14 I think that is a fair statement of the facts, even though the Charter speaks at several points of ‘every individual’ or ‘everyone.’ Especially in relation to language rights in the schools, the rights may well accrue to the individual parent (or child), but it is hard to see what meaning they could have in practice unless they are enjoyed together with other members of the same language group. In any event, all this strikes me as something of an intellectual red herring: the rights are guaranteed, they are guaranteed in the schools, and they carry with them the right of minority-language parents to have charge of the governance of those schools. Those are the important considera-

Human Rights

129

tions, and their implications are clear for the individual-group rights debate. As to the question of collective rights, although I am aware that others may find my reaction unsustainable, not to say downright eccentric, I nevertheless feel that the perceived conflict here is to a degree another artificial construct with little to commend it. Think of language rights (or indeed the right of free speech) in the context of Quebec language law (Bill 101). The argument in its defence has often been to the effect that it is necessary for the survival of the Francophone collectivity – as it happens, the majority in the Province of Quebec – even at the cost of certain individual rights on the Anglophone side. To me, the real situation is a willingness on the part of the majority to override the rights of a minority: Anglophones who wish to put up English-language signage to identify a shop, for example, or otherwise to make use of that language as their means of public expression. In other words, one collectivity against another, not a conflict of differing types of rights or groups against individuals. And it appears to me that this is very often the case in situations that are described as involving a divergence of this kind, for example violations of article 27 of the Covenant on Civil and Political Rights. Finally, there is the matter of social and economic rights versus political rights, sometimes also referred to as positive versus negative rights.15 Here, there does appear to be a conflict, at least on the surface, and one that has preoccupied social and moral philosophers for many years. More important perhaps, from the point of view of the practitioner, it is one that that has traditionally divided developed and developing countries. Consider the attitude of the United States, for example, where ‘economic rights’ are considered in some circles not to be in the same ballpark as political rights, or worse, an attempt by the crazy left or the equally crazy Third World to invent unrealizable goals, as if they were authentic rights.16 The Covenant on Economic, Social and Cultural Rights is unpopular for similar reasons, and the United States is still not a party to it, although 156 states are, and economic rights are widely believed in the developing world – which is, after all, most of the world – to be even more fundamental than their political counterparts, on the grounds that the latter are largely irrelevant if one cannot put bread on the table. Of course, there is possibly a more serious argument here, especially in a domestic context. ‘In a behavioural or empirical sense,’ one commentator has observed, ‘rights exist only if they are recognized by public

130

Transforming Rights

authorities. One can argue for a moral theory of rights … [but] a moral right with no support from public law and authority is not an effective or practical right.’17 Or looked at in another way, some would argue that social and economic rights are not really justiciable, that is to say enforceable through the human rights system or the courts. And that may well be so, at least the way things work in the present-day world. But I see no reason in principle why, for example, everyone should not enjoy ‘the right to work … to gain his living by work which he freely chooses … [and] just and favourable conditions of work …’18 And for the public authorities to ensure, one way or another, that that right is respected, just as they require, for example, that children acquire a certain level of education. Hence my qualification that a conflict appears to exist ‘at least on the surface.’ For I cannot help but believe that, in something resembling a morally acceptable world, both sorts of right would coexist side by side and would be recognized as equally important and realizable. Of course, one might observe, we do not live in such a world; and even rights defenders would have to agree. Nevertheless, if the Universal Declaration and the covenants mean anything, they must entail an effort in that direction, and one that is not impossible of achievement. To the extent that that is so, the whole theory of conflicting rights, on which so much effort and ink have been expended, is perhaps less threatening than it might appear. Or at least so it seems to me, from the perspective of one who was actively engaged in this area for a number of years. 4 The Canadian Experience a) Policy Objectives We have already had cause to see, in relation to language, that it is of the first importance to have a clear grasp of exactly what objectives those who designed the policy had in mind before we can judge in what measure they may have succeeded in achieving them. In other words, if the framers of federal language policy never had it in their heads to make everyone speak both English and French (as they certainly did not), then it is senseless to argue, as some commentators would have us believe, that they ‘failed’ because this kind of ‘bilingualism’ has not been achieved. This is equally true in the case of human rights, which need to be placed in the context of what was really envisaged as the objective for

Human Rights

131

a rights-based approach to Canadian domestic law and, eventually, for the Charter of Rights. In the first place, it is often observed, not least by people who should know better, that ‘You cannot legislate morality or successfully order people to love each other.’19 Of course, you can’t; but that is not the issue. The late justice Walter Tarnopolsky put the matter very wisely some thirty-five years ago when he observed that human rights legislation cannot eliminate bigotry and prejudice, but it can put an end to the public manifestations of such feelings. The object of human rights legislation is not to force people to like Negroes or Indians, or Jews, or Catholics, or Scotsmen, or Irishmen: it merely requires that equality of access be assured to all people, regardless of race, colour, religion, sex, ethnic or national origin.20

In my personal belief, the law, as it takes root in society, does in fact bring social change along with it as well, however slowly, and in the end attitudes do change as a result. But to judge the success or failure of the policy on those grounds is beside the point. Second, those who set out to develop a framework of human rights law in Canada were not on the whole preoccupied with legal rights or fundamental rights like free speech; their concern lay with equality rights. The reasons were simple enough: although Canada was no paragon in these matters, it was true that individuals could expect a fair trial in this country, for example, or that they could speak their minds without getting in deep trouble. Not that we in Canada were entirely immune from the McCarthy virus, but we were not as affected the Americans were, for all their sense of superiority in matters of free speech and First Amendment protections. But in much of the world, it hardly needs saying, freedom of speech or fair treatment before the courts are to this day at the very heart of the matter, and in my experience it is these and similar problems which are the major issues confronting international bodies like the U.N. Human Rights Committee. In any event, it was most certainly not the case in Canada that one could expect equality or a fair deal if one were non-white or a Jew or a woman. Until well into the nineteen fifties or sixties one might well have had trouble getting housing or service, let alone admission into a social club. (Indeed, on the last of these, the doors are sometimes still not open.) And if a person were disabled, he or she would have been lucky to escape an attic room or a sheltered workshop.

132

Transforming Rights

And so it was with some measure of common sense that social reformers in Canada, if one may so call them, concentrated their attention on equality rights. As a result, the purpose of legislation in this area, both federal and provincial, was to achieve a non-discriminatory regime within their respective jurisdictions that would be as comprehensive as possible, having regard to the temper of the times and what the traffic would bear with the voting public, and to provide for an effective system of monitoring and adjudication. As the opening words of the Canadian Human Rights Act express it, ‘the purpose of this Act is to extend the laws of Canada to give effect … to the principle that every individual should have an equal opportunity … to make … the life that he or she is able and wishes to have … without being hindered … by discriminatory practices …’ Similar language is to be found in provincial statutes. As matters now stand, although one province’s legislation is not identical with another’s, their policies remain essentially similar. Even during the term of office of an avowedly right-wing regime like Ontario’s Harris Conservatives, human rights legislation and its Human Rights Commission were retained intact. Although there have been changes in recent years – for example, in British Columbia, which eliminated its Human Rights Commission, or in Ontario, where the adoption of Bill 107 provided for direct access to a tribunal – they are on the whole procedural rather than substantive, and an examination of prohibited types of discrimination in federal, provincial, and territorial legislation reveals a core of grounds, common to all, which includes race, religion, age, sex, and disability. Differences obviously also emerge. For example, several provinces include ‘political belief,’ or ‘source of income’ (often deemed to mean being in receipt of one type or another of public assistance) as prohibited grounds, while others do not, but it is clear that the major issues are covered by all or virtually all. Even ‘sexual orientation,’ which was and remains by far the most controversial, is covered in most provinces and in federal legislation. And ‘same-sex marriage,’ an unthinkable concept only a few years ago, has been adopted by the federal parliament. In any event, as we look at policy issues, the significant considerations are that the principal requirements are essentially the same across the country; that they are limited in nature and scope; and, perhaps most important, that democratically elected legislatures, not ‘unelected judges,’ have on the whole been responsible for putting them in place. The rights picture in Canada is of course completed by the Charter of

Human Rights

133

Rights and Freedoms, which not only sets out fundamental freedoms and political, legal, and democratic rights, but also asserts that ‘every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination …’ With the constitutional guarantee of Charter supremacy and access to the courts – together with legislative enshrinement of human rights codes and commissions and administrative tribunals to monitor their implementation – the Canadian system undoubtedly provides a substantial measure of effective safeguards. There are, in short, few countries that are as well endowed as ours with human rights protection under the law, or nations with more talent, devotion, and economic means to carry that protection into reality. So much for the policies. How well they have been implemented is another matter. b) Implementation Although the philosophical framework of human rights in the Western world has hardly changed for 200 years, constitutional guarantees and human rights legislation, as well as monitoring and enforcement systems, have altered quite radically, and with them the matter of getting rid of discrimination in practice. As the French representative to the U.N. Economic and Social Rights Committee has expressed it, ‘We know very well that principles are worth very little unless they are applied in practice. Follow-up mechanisms are therefore essential, failing which the cause of human rights would be nothing more than a catalogue of abstract principles lacking any reality.’21 The Supreme Court of Canada took a similar line when it observed that ‘[h]uman rights remedies must be accessible in order to be effective.’22 We should therefore look at the various Canadian institutions that are responsible for making human rights a reality in this country. In what follows, I will examine more closely their responsibilities, functions, and accomplishments, but I want first of all to clarify very briefly the differences between the two main players. The Canadian Human Rights Act is designed to cover equality rights in federal jurisdiction: for example, the federal government, crown corporations, and federally regulated private sector companies such as telecommunications undertakings like Bell Canada. The Canadian Human Rights Commission was set up to administer the act, and the Human Rights Tribunal to adjudicate complaints. At the provincial lev-

134

Transforming Rights

el, human rights legislation and provincial commissions and tribunals play essentially the same role. In 1982, the Canadian Charter of Rights and Freedoms added a new dimension to human rights protection. The Charter is different from the federal act and most provincial human rights laws in that it covers a broad range of fundamental human rights issues as well as equality rights;23 it applies only to acts of government and the creatures of government – the private sector is excluded; and its provisions are enforced through the courts. Thus, Canada has a two-track system of human rights protection: human rights commissions and tribunals on the one hand, and the Charter and courts on the other. Both tracks have contributed to the development of human rights jurisprudence and to defining what is meant by discrimination and equality rights, and Canada is in this respect probably as well as or better equipped than most countries to deal with the multiple range of human rights problems that present themselves in contemporary society. c) The Charter, Legislation, and the Courts I have already discussed some of the achievements and failures of the Charter and federal legislation with respect to language rights. I have also suggested that, on the whole, fundamental freedoms – freedom of religion, for example, or free speech – are not threatened in contemporary Canada, and that it is for that reason that discrimination has been the major target of human rights legislation in this country. Not that there never have been direct threats to vulnerable minorities. Obviously, and shamefully, there have been openly hostile actions in the past towards Jews, to take only one of the most egregious examples. And it remains the case today that anti-Semitism represents a real threat, though I should have thought a diminished one, despite numerous cases that are identified by B’nai Brith and others. Of course, the position of the State of Israel in the turbulent events in the Middle East has brought out different critics who are also sometimes accused of being anti-Semites. Doubtless some of them are, but there are others who are critical of Israel on grounds that have little or nothing to do with religious intolerance. One might say much the same with regard to Canada’s Muslim population. This difficult situation is rendered more complex by considerations of race and colour, but some of the indignation on the part of other

Human Rights

135

Canadians clearly relates more to unacceptable, violent behaviour outside Canada. The two should not be confused, just as evidence of violence or potential for violence on the part of some Muslims should not be generalized to the Muslim community as a whole. As to freedom of speech, it appears to me that most Canadians would agree that they are not prevented from speaking their minds on virtually any subject. On the whole, it is only when one’s expressed beliefs clash with others’ that problems arise. What some call ‘hate speech’ is a good example. The right, as some see it, to freedom of sexual expression versus what others perceive as unacceptable pornography is another. But on the whole most Canadians are not involved with or bothered by any of these matters. Does that mean they are too passive to care? I do not think so. They are going about their business and hoping to be left in peace. But societies are not judged by what ‘most people’ do or think. They must also come up to scratch on their treatment of minorities, racial or religious or those who diverge in other ways, by their sexual orientation, for example. Even single-interest groups that promote far-fetched, indeed objectionable ideas have a place in an open society. People must have a right in civil life to behave differently, provided they do not trample on others’ rights. And again, on the whole, I believe that contemporary Canadians are reasonably good at just that. That it has not always been so, one might argue, is not relevant: continually revisiting the past serves no purpose. But of course it is significant, if only to help explain the background to all the huffing and puffing about rights in today’s Canada. And above all, the right to be free from discrimination that has occupied so much time and energy in the six decades since the Second World War. Beginning with provincial legislation on fair employment and accommodation practices,24 moving to general human rights legislation at both the provincial and federal levels, and finally to Charter guarantees, this has been a major part of the story of the rights movement in Canada during those years. Perhaps the most prominent development at the federal level in earlier days was the Canadian Bill of Rights, launched in 1960 with much sincerity and with high hopes by the then prime minister, Mr Diefenbaker. In the end, however, it was more of a failure than it probably ought to have been, with an ‘impact that was disappointing, because of confusion over whether the Bill could be overruled by later statutory pronouncements.’25 Some observers have gone farther, condemning it as ‘not even a qualified success in protecting equality rights,’ and

136

Transforming Rights

even more severely as resulting in a series of court decisions that ‘were more remarkable for their conservatism than for the cogency of their reasoning.’26 Indeed, another commentator27 has argued that, ‘In large measure, it was dissatisfaction with the equality provisions of the statutory 1960 Canadian Bill of Rights that provided the impetus to an entrenched Charter.’ The Bill had resulted in some successes, notably in the Drybones case,28 but was generally a source of disenchantment, as the courts were basically not willing use it to strike down other legislation. They chose rather to regard it as ‘concerned with … “rights and freedoms” as they existed in Canada immediately before the statute was enacted’ and were in this view ‘overly concerned with the supremacy of Parliament.’ Probably none of this is surprising, given the temper of the times and courts that were hardly likely to push an aggressive human rights dossier – on its face, a far cry from what some commentators condemn as what they call ‘activist courts.’ But perhaps less so on closer examination, for pre-Charter conservative judge-made law could be ‘activist’ in its own way. As, for example, in a 1939 case29 in which a court decision stated that freedom of commerce meant that a proprietor could refuse to serve a black person at the Montreal Forum. Or when the courts decided in 1975 that the non-financial contributions of a wife ‘were part of what she’s supposed to do as a wife without any compensation,’ and then overturned this view three years later.30 At the same time, in the period 1978 to 1981, the law in this area was also being refashioned in virtually all provinces in a manner that considerably improved prior legislation in those jurisdictions. In any event, times change, and even the courts change with them, to a degree that the role of the courts vis-à–vis that of the legislature – the one elected, the other not – is often totally misunderstood. Except for those who regard the notion of a constitutional democracy as an oxymoron, it ought to be perfectly plain that the ultimate act of legislative sovereignty entails setting down fundamental principles in a constitutional framework. Not only is it usually agreed by a special process involving higher hurdles than ordinary legislation, but thereafter it cannot be changed except by equally exacting amending procedures. Further, it is the legislatures that explicitly give the power of interpretation to the courts. The Canadian people, through their elected representatives, have made these choices, and their continued approval of the Charter of Rights has been shown by opinion polls time and again since it was adopted.

Human Rights

137

Constitutional protections are particularly important in the defence of minority rights. Without them, the most vulnerable sectors of our society are continually open to the tyranny of the majority. They can of course be protected by legislation, but for many years they most certainly were not in Canada. And in any event ordinary legislation can be changed by ordinary legislators acting against the interests of minorities or at least failing to act in their defence. Furthermore, in Canada as in most countries, there can be exceptions to both legislative and constitutional guarantees. Emergency measures in time of war are the most obvious example and are accepted in all countries and in international law, with a very limited range of exemptions for ‘non-derogable’ rights, such as the right not to be held in slavery or tortured. But ‘emergency measures’ in times of war or national catastrophes of one sort or another can unfortunately be given a very broad reading, and the magnificent language of the U.S. Constitution was of no more comfort to Americans of Japanese origin during the Second World War than was their situation in Canada without a written Charter of Rights at the time. The present ‘war on terror’ presents another striking illustration of what can go wrong when panic sets in. The United States, of course, is the most egregious example, though by no means the only one. What has happened in the Guantanamo Bay detention cells or has been vividly shown in television images of Abu Ghraib Prison is totally inexcusable, by any criterion of international law, or indeed by domestic U.S. standards. Whether the focus is the humiliating treatment of prisoners or the requirements of a fair and timely trial, or principles to be respected in regard to enemy combatants (however they may be defined in the devious lexicon employed in public statements by American officials), it is clear that these actions are grossly inconsistent with U.S. commitments under the covenants on human rights and torture and the Geneva Conventions. As is deportation to countries with the death penalty or a record of torturing prisoners. However, sad as this truth may be, it is far from clear what can be done about it. And finally, in Canada, we have provided a special bolthole to which legislators can escape if court decisions appear too confining. Known as the ‘notwithstanding clause,’ section 33 of the Constitution explicitly provides that a legislature may act to override certain sections of the Charter for a period of five years (renewable) when it deems it desirable to do so. Only once, however, has this provision been used with respect to

138

Transforming Rights

equality rights: in Quebec in December 1988, in respect of legislation relating to the language of signs,31 following a decision by the Supreme Court that Quebec’s French-only sign law violated the Charter right to freedom of expression. On that occasion, Premier Bourassa was quoted as saying that ‘using the notwithstanding clause to enforce a language policy goes against the traditional attitude of tolerance and openness shown by Quebeckers … It means suspending civil liberties pure and simple.’ But, with a slam at Mr Trudeau, who ‘did not protect the section guaranteeing freedom of expression from the notwithstanding clause,‘ he went on to conclude that he ‘was only following the law of the land.’ Be that as it may, the reaction in Manitoba was immediate: the following day, Premier Filmon called the Meech agreement into question, thereby leaving it open in due course to the procedural gambit that brought about its failure to pass the Manitoba legislature, and its ignominious demise, with which we are all too familiar. I think it will be difficult to invoke the notwithstanding clause again on a rights-related issue. Especially in light of the Alberta government’s experience in the early months of 1998, when it twice considered using it (first in regard to limiting damages to be paid to victims of sterilization and then in reaction to the court’s decision regarding homosexuality in the Vriend case), only to decide against it in the end. A prudent political leader will think twice before risking allegations of indifference towards minorities. Perhaps the language issue in Quebec is unique in this respect, but I doubt that a federalist leader would move in this direction, and the separatists have bigger fish to fry. A further significant point in all of this, however, is perhaps a more general one. The courts may diverge from time to time from the current of public opinion, but on the whole they have been cautious. Thus, for example, it was possible for the U.S. Supreme Court to defend the ‘separate but equal’ doctrine for many years in respect of American blacks. In the same time period, our own courts went along with restrictive covenants or other actions against blacks and Jews. During the McCarthy years, so called Communists were persecuted in the name of ‘national security’ in the United States with little censure from the courts, and while recent events have brought judicial criticism, the courts have yet to put a stop to them. Despite the exaggerations of the press, judges are not oblivious to what is going on around them, and they are not revolutionaries. The fact is that widespread allegations of unacceptably ‘activist’ courts are largely the stuff of urban legend, at least in Canada. An activ-

Human Rights

139

ist court decision, as far as I can see, is a judgment one does not approve of; if one does approve, the court has shown good sense or proper deference to the legislature. Or as Madam Justice Rosalie AbelIa has put it, ‘what has changed is not what judges do, but how what they do is described by people who do not like their decisions.’32 Often enough regarding the same decision, especially from the Supreme Court of Canada, we have academic and media commentators firing from the sidelines in all directions at once. The court has gone too far (it is ‘arrogant’ as the Globe and Mail put it about one judgment). Or it is pusillanimous and has not gone far enough. Or it has got it more or less right, but the question is one that should really have been left to Parliament. The fact is that we have a realistic group of individuals on the Supreme Court who have on the whole produced sensible decisions on difficult and complex problems that are not of their own making but have been handed to them by the federal and provincial legislatures. As a result, even with all the constraints surrounding their activities, the courts have unquestionably played a major role in advancing the human rights dossier. Of course, they have not been working in a vacuum – federal and provincial legislation and eventually the Charter were essential construction blocks. But without the courts, the master builder would have been missing. At the same time, rather curiously, the history of court action has at times been a patchwork affair, markedly conservative for many years, and coming round only rather slowly to a more rights-oriented approach. One might compare, for example, the Supreme Court’s antediluvian decision in the 1979 Bliss case,33 where it was held that denying unemployment insurance(UI) to a pregnant woman was not discrimination because ‘any inequality between the sexes in this area is not created by legislation but by nature’ and any ‘differential treatment was of pregnant persons, not women.’ A decade later, this reasoning was overturned in a decision written by Chief Justice Dickson, on the grounds that it was the UI legislation, not ‘nature,’ that was discriminatory, with explicit recognition of ‘pregnancy discrimination as an obvious case of sex discrimination.’34 Other ‘conservative’ or at least not rights-oriented decisions, as I see them, were handed down, for example, in the Bhinder case35 in 1985, where the Supreme Court held that it was acceptable to require that hard hats be worn on CNR work sites, rejecting allegations of discrimination by a Sikh whose religion required him to wear a turban. This judgment was effectively overturned five years later in a landmark

140

Transforming Rights

decision36 setting out the requirements for ‘reasonable accommodation’ of minorities. In yet another decision, in a 1990 age discrimination case,37 the court held that mandatory retirement was not unconstitutional, interestingly enough with a dissent by Madam Justice Wilson (with whom I entirely agree) that such treatment was ‘an affront to the individual.’ In any event, in various instances, including the Government of Ontario, for example, the issue has been bypassed, as the authorities have moved on their own to remove mandatory retirement from the statute books. Or again, in a language case that I have mentioned above, where a decision was handed down by the Supreme Court, to the effect that, although proceedings involving a French-language minority individual had to be bilingual, the judge did not necessarily have to understand the proceedings.38 Nine years later, this judgment was also overturned.39 And finally, a more recent case concerning an allegation of religious discrimination in education in Ontario, involving a father who had had to pay to have his children educated in the Jewish faith, was ultimately taken to the U.N. Human Rights Committee, and is discussed below in that context. Suffice it to observe here that the Supreme Court of Canada had earlier ruled that the existing arrangements were not unconstitutional. In so doing, it chose to give greater weight to a 125-year-old constitutional text on guarantees to Roman Catholics in that province than to modern-day anti-discrimination commitments, both in the Charter of Rights and in international instruments to which Canada is a party. On the other side of the ledger, there are any number of instances in which the Canadian courts have advanced the cause of human rights, beginning with what Irwin Cotler has called the ‘historic trilogy’ of cases dealing with free speech and whether ‘incitement to religious hatred is protected speech …’40 In that context, the author cites then Chief Justice Dickson’s important observation to the effect that restrictions on hate speech do not ‘compromise the values of free speech.’ Or consider the Supreme Court’s decision in Singh,41 where it confirmed that the Charter provides that any individual in Canada, not just citizens or legal residents, enjoys the same rights to a fair hearing. Much to the chagrin, it might be added, of those who believe in playing ‘tough’ with refugee claimants and asylum seekers, who ‘use’ the courts to drag out their stay in Canada interminably. Or turning to discrimination, the O’Malley case, regarding Seventh Day Adventists and the right to work on Sunday; the Andrews case rejecting the requirement of citizenship to be a member of the bar; the

Human Rights

141

Egan case with respect to homosexual rights; the Eldridge case where, contrary to the British Columbia Court of Appeal, the Supreme Court held that the fact that the state was not the cause of a disability did not absolve it from dealing with the effects and providing suitable remedies. And finally, other cases dealing with sex discrimination and sexual harassment.42 On the whole, this is an impressive list in anyone’s book; but it is not the whole story. d) Ombudsman Offices and Human Rights Commissions Even closer to the human rights situation on the ground are the numerous monitoring agencies that have grown up across Canada, a country that is better endowed with such offices than any other one can think of – doubtless because of our federal structure, where eleven is the rule, as against one that does the trick in unitary states. That being said, Canada is most certainly covered, and covered well, on the human rights front. When various human rights institutions and non-governmental organizations came together in Paris in 1991 to assess the prevailing situation and make recommendations for improvements, they adopted a set of principles that were subsequently endorsed by the U.N. General Assembly, and have since been used to evaluate all such monitoring agencies. Both ombudsman offices and human rights commissions were found acceptable within the principles, and in fact one or another – sometimes both – are used in every corner of the planet. Leaving aside other matters with which they deal (various types of administrative abuse, for example), ombudsman offices have proven extremely effective in the human rights area. And they have often given birth to specialized offices – for example, dealing with sex discrimination or children’s rights. They of course do not normally have more than powers of recommendation, but they can be exceedingly influential when backed by public opinion, as they are in the Scandinavian countries. They also have the advantage of being less litigious than human rights commissions on the Canadian model, where serious violations are not infrequently sent to human rights tribunals or the courts, which can issue binding decisions. Ombudsman offices have also found favour in most Canadian provinces. Although they are outside the purview of this essay, my impression is that they have performed well. Even at the federal level, there

142

Transforming Rights

are several agencies that qualify one way or another: specialized ombudsman offices like those of the privacy and access to information commissioners are examples, as are the correctional investigator and the military ombudsman, although the latter two do not have the independence and direct relationship with Parliament that such offices should enjoy. Doubtless the largest, and certainly the most controversial, is the Office of the Commissioner of Official Languages. Why there is no general parliamentary ombudsman at the federal level in Canada is a matter for historical speculation. Some years ago, the Trudeau government looked as though it was ready to move, following a thorough study and report that it had commissioned. But in the end it did not. Perhaps because there was already in existence a Human Rights Commission, the language commissioner’s office, and other specialized ombudsmen, and it was felt that yet another was not needed. I do not have any substantial difficulty with this conclusion, but I am aware that others do. At all events, we have had a Canadian Human Rights Commission for some thirty years that seems to serve the purpose. It should be noted that it is a particular type of commission that has similar, sister agencies in countries like Australia and New Zealand. But nothing of the sort exists, for example, in France43 or other European countries, where the model calls more for broad-ranging commissions with widely representative (and usually numerous) membership that issue comments and criticisms of government activities or failure to act but do not deal with individual complaints as do several Canadian commissions. It should also be noted that the Canadian Human Rights Commission (CHRC) differs from the Office of the Commissioner of Official Languages (OCOL) in that it comprises members of the commission as well as staff. The chief commissioner and deputy chief commissioner (when there is one) are full time, appointed by order-in-council, for a maximum seven-year term. The rest are normally part time, appointed in the same way for a three-year term. Following hallowed Canadian traditions in these matters, there are various factors that have to be taken into account: province of origin, language, sex, ‘visible minority’ or disabled status, and so forth, with of course an admixture of political appointments, but not enough to bother me. In my nine years at the CHRC, we met once a month (except in July and August) to consider complaints and to approve settlements, or to decide whether they should be dismissed or sent to a Human Rights Tribunal. We also discussed commission policy and broader issues such

Human Rights

143

as a government announcement in the human rights area, and whether and how we should react. Although the Canadian commission pronounces itself on all manner of rights-related goings on, the heart of its activities lies in dealing with complaints. On various so-called ‘prohibited grounds,’ or forbidden types of discrimination, including race, ethnic origin, age, sex, disability, and religion – originally ten in number, to which ‘sexual orientation’ was added in 1996. However, individual complaints alone have never been and cannot be the whole story. As a result, the Canadian commission has always expended considerable energy on ‘systemic’ problems, for example, employment and pay equity, which I shall discuss below. It has also taken seriously its mandate to ‘sell’ a human rights approach to various government activities, to sharpen its critical pen when that has been lacking, and to propose changes for the better where it can. My activities as human rights commissioner involved less hostility than language problems had ten years before, but otherwise the two jobs had many similarities. In particular, the only person out front in both cases was the commissioner, who had to carry the ball in parliamentary committees and with the press, and generally keep human rights in the public eye. During my time at the commission, our Annual Reports were the principal vehicle for putting our views before Parliament and the public. In this, I believe that we succeeded reasonably well, at least if media coverage is any criterion. To what extent we may also have changed parliamentarians’ or government decision makers’ minds is quite another matter that I will leave to others to judge. Suffice it for me to say that any large organization (and government and all its agencies are very large) needs a vigorous, public reminder of its failings from time to time, and the Canadian commission provides just that. On the matter of sexual orientation, to take only one illustration, the commission argued for its inclusion in the Canadian Human Rights Act as a prohibited type of discrimination from the beginning. Both in my predecessor’s time, and my own, in our Annual Reports, in other presentations to Parliament, and in public debate, we were, I believe, in the forefront in pushing for this change.44 And eventually, with a massive contribution from the courts, the federal government moved, and the act was amended to include sexual orientation. Whether this would have happened in any case, we have no way of knowing. It certainly would not have come about solely as a result of good will on the part

144

Transforming Rights

of government. The courts are a much more likely source, as I have just indicated. But I like to think that the commission, with the help of various non-governmental organizations and concerned Canadians had something to do with it as well. Similarly, we hammered away at sex discrimination; sexual harassment; racial, ethnic, age, and disability problems; and other forms of discrimination, overt and covert, when and where we saw them. We were not always the leaders of the band, but the commission was never absent from the field. All of which has helped to give body to the image that I have been trying to describe of a society that, by and large, is respectful not only of the theory but of the actuality of a human-rights oriented culture. With the signal and deeply troubling exception of the treatment of our Native peoples, it is not a bad record, though one that is obviously blemished by many shortcomings. In short, I think it is fair to say that the human rights players in Canada, the federal and provincial commissions among them, have helped to move the ball down the field towards the human rights objectives that most Canadians endorse. 5 Discrimination I have discussed above the reasons why Canadian human rights law and practice have been largely concentrated over the years on equality rights and discrimination. We should now look briefly at the manner in which discriminatory practices are identified and at various types of discrimination. I should note to begin with that the elements of the discrimination scene are often interrelated and, as described by assorted experts, human rights commissions, tribunals, and the courts, sometimes take on an appearance that is more labyrinthine than it probably needs to be. There are nevertheless a few basic considerations that need to be flagged. First, although it may seem counter-intuitive to some, it has to be emphasized that a discriminatory action need not entail an intention to discriminate. Organizations or individuals may well believe that they are acting in an objective, non-discriminatory fashion when putting in place an employment-related requirement, such as the hardhat rule at CNR, but the requirement may nonetheless be discriminatory – as it indeed was in the case of Mr Bhinder, whose religion required him to wear a turban. Initially, the Federal Court ruled in his case that the Canadian Human Rights Act did not apply where there was no inten-

Human Rights

145

tion to discriminate. The Supreme Court later decided that the act did apply to non-intentional discrimination, even though it also issued the unfortunate conclusion that the employer was under no obligation in this case to accommodate Mr Bhinder’s special needs. This case and others like it raise the whole issue of indirect or ‘adverse effect’ discrimination. Once again, for many people, the idea may appear not to make much sense: discriminatory behaviour is straightforward and should directly impinge on the individual concerned. Anything else looks suspiciously like a piece of bureaucratic sleight of hand. But consider another illustration: height requirements that for many years have been imposed in various places for prospective police recruits. They may look neutral and fair, even though they obviously have an adverse effect on women and certain racial groups. But, examined more objectively, and without prejudicial baggage as to what women can and cannot do, they quite clearly are not reliable indicators of acceptable performance. And so, slowly, they are being pushed aside, at least in many jurisdictions. The distinction between direct and adverse effect discrimination has been somewhat clarified by later decisions of the Supreme Court, particularly in the Meiorin case,45 dealing with a grievance by a female forest firefighter, Tawney Meiorin, who had been dismissed from her job because she failed one aspect of a fitness standard established for firefighters by the government of British Columbia. The court found that the traditional distinction was artificial, as it was sometimes difficult accurately to characterize discrimination as either direct or adverse effect. The distinction was also inappropriate as, in some circumstances, it could allow the discriminator to choose an apparently adverse effect form of discrimination to avoid the harsher consequences of a finding of direct discrimination. The result was a change in the approach to the bona fide occupational requirement (BFOR) defence, which produces a more unified method for dealing with such matters. In Ms Meiorin’s case, the court found that the B.C. standard was not justified. Further, the difference between individual and systemic discrimination again raises many of the same problems. The former evidently hits the person concerned directly and without argument. But what if the whole system discriminates? What about the so-called glass ceiling, for example, that has prevented women for so long from rising above a certain level in their chosen career? This system-wide or ‘systemic’ discrimination is much harder to come to grips with, when whole segments of society still accept it as normal instead of making a

146

Transforming Rights

vigorous, concerted effort to alter the structure to meet the needs of half the population. Whatever the source or character of the discrimination, the question also arises of how to remedy the victim’s situation. More particularly, beyond any compensation, there is a need to accommodate the individual by rectifying the action or rule that caused the discriminatory situation in the first place. Parliament and the courts have made it clear that employers and service providers have a duty to accommodate individuals who are discriminated against by any policy or practice unless such accommodation would impose undue hardship on the organization or individual who would have to accommodate those needs, considering health, safety, and cost. Finally, when one looks at the problem from the perspective of the practitioner, it has to be understood that an allegation of discrimination must identify the action or rule in question as involving a ‘prohibited ground’ that has been specified in the appropriate legislation. Thus, for example, complaints founded on race, sex, disability, age, and so on, will be dealt with as such. Other behaviour or rules, however distasteful, probably will not, or if they are, they will likely be dismissed as not coming within the ambit of the law. A further twist, and an important one, that has developed in the course of judicial interpretation of the Charter is the notion of an ‘analogous ground’ of discrimination. First set out in the Andrews case, in respect of discriminatory treatment of non-citizens, this principle was designed to deal with ‘discrete and insular minorities’ that have been victims of discrimination, beyond those expressly mentioned in section 15 of the Charter. Probably the best known example of the application of this approach was in the Vriend case in 1998, in respect of the Alberta Individual Rights Protection Act (IRPA), where homosexuals were found to have been denied ‘the protection of the law on the basis of sexual orientation, a personal characteristic which is analogous to those enumerated in s. 15(1).’46 The remedy adopted also affirmed a significant principle, to the effect that the proper solution in the case of discrimination that results from the ‘underinclusiveness’ of a statute may be to read an additional provision into it, in order to remove its exclusion of a protected group. The court therefore decided in this case that because of the ‘underinclusive state’ of the IRPA it ‘denied substantive equality’ to gays and lesbians, and that in the circumstances ‘Reading sexual orientation into the impugned provisions of the IRPA is the most appropriate way

Human Rights

147

of remedying this underinclusive legislation.’47 In justifying this way of dealing with the matter, the court observed further that ‘Reading sexual orientation into the offending sections would minimize interference with [its] clearly legitimate legislative purpose and thereby avoid excessive intrusion into the legislative sphere whereas striking down the IRPA would deprive all Albertans of human rights protection and thereby unduly interfere with the scheme enacted by the legislature.’ Where does all this leave us, one might well ask, when we have worked our way through the process-oriented maze of direct and indirect, covert and overt, adverse effect, individual, and systemic discrimination? Not to speak of subtly differing treatments of accommodation or prohibited and analogous grounds? Have we been making real progress in practice in Canada in lessening if not eliminating discrimination? I think the answer is ‘yes,’ with a big ‘but.’ We have come a long way, but we still have a lengthy road to travel before we can meet the promises of the Universal Declaration, of the international human rights covenants, and of our own Charter and human rights legislation. In that context, we should have a closer look at the performance of Canadian human rights agencies and the courts in dealing with the major types of discrimination that are set out in the Canadian Human Rights Act. a) Women’s Rights and Sex Discrimination48 A decade or so before the turbulent events of the Second World War, Canadian women had been officially declared to be ‘persons,’ although we had to go overseas to the British Privy Council to bring it about, against the better judgment of our own Supreme Court. In 1927, five Canadian women asked the Supreme Court of Canada to answer the question, ‘Does the word “person” in Section 24 of the British North America Act include female persons?’49 After weeks of debate and argument, the Supreme Court decided that the word ‘person’ did not include women. The decision was appealed to the Judicial Committee of the Privy Council, then Canada’s highest court. The Law Lords decided, on 18 October 1929, that women were indeed ‘persons.’ As Lord Sankey eloquently observed on that occasion, ‘the exclusion of women from all public offices is a relic of days more barbarous than ours. And to those who would ask why the word “person” should include females, the obvious answer is, why should it not?’ And so it was done. But one might have wondered, in the light of

148

Transforming Rights

subsequent experience, just what it all meant. It was not until 1945, for example, that women obtained the vote in Quebec in provincial elections. In federal politics, while a few had made it, it was still very much a man’s world. The Supreme Court of Canada would not have a female justice until 1982.50 The federal public service was equally dilatory, with my old department, External Affairs, for example, not permitting the appointment of women as foreign service officers (as against to clerical positions) until 1947.51 Provincial legislatures and public services were much the same. In the private sector, women had been very active during the war, but began at the end of hostilities to withdraw to the home, although obviously less markedly than after the First World War. For those who stayed on, it was a world of blatant inequality, from the shop floor to the boardroom. And sexual harassment was a genuine trial, from jokes in bad taste to attempts to obtain sexual favours, to less-than-subtle stereotyping that placed women in inferior positions with less than equal remuneration. Likewise, on the home front, there was nothing resembling fairness in the male-female game. And there was not likely to be, with the birthcontrol methods of the time, marital rules and social mores that kept women tied down in hopeless domestic situations, and the widespread precept, generally accepted – by many women as well as men – that a helpmate could never be genuinely equal, whatever might be said of the importance of the role of motherhood and the invaluable contribution of women to hearth and home. ‘The problem,’ as judge Abella put it in her 1984 study of equality rights, was ‘one of assumptions, almost religiously held, about the role and ability of women in Canada … [and a] tradition that expects women to behave dependently and supportively towards men.’52 And where have we got to now, in the early years of the twenty-first century? Women who stay at home certainly benefit from a fairer distribution of household responsibilities than they used to do. And marriage and family arrangements, not to speak of divorce settlements, take better account of unpaid work at home. But who can honestly say that men and women are truly equal ‘partners,’ as today’s language expresses it? The optics are good on progress, but when one starts as far back as women did, they are bound to be. Women’s lot in the world of work has also greatly altered, from all points of view. Their presence in government, the public service, the

Human Rights

149

universities (medical and law faculties included), and the private sector has advanced notably. As a result, we like to believe that things are getting better, and so they are – but slowly. The doors are now open, and they lead far beyond the clerical positions that used to circumscribe women’s ambitions. But in the higher echelons, some are still more equal than others. In the last days of 2006, for instance, I read in the New York Times depressing statistics about the lack of women at the CEO level and similar positions in large American corporations. The situation is similar in Canada: while women have improved their position in senior management in the private sector and in the public service, they still have a long way to go. What is being done – can be done – to move ahead? Government initiatives – for example, by way of employment and pay equity programs that have brought about fundamental changes – are dealt with more fully below. Support through court action, using the Charter to buttress women’s rights, has evidently been valuable as well. In this context, the present government’s decision to cease funding the Court Challenges Program was not only mean-spirited but quite out of keeping with the Charter’s endorsement of equality rights, as the program permitted individuals and groups that might not otherwise be able to afford the costs to have access to the courts. The subsequent decision to reinstate it at least partially may be of some assistance overall, although it is my understanding that it is concentrated on the language side and therefore would not necessarily cover other rights. Beyond government programs, a lively women’s movement – one in which men participate, I would hope – can and will promote progress. And the more vigorous pressure there is on the authorities, the better. We should be unrelenting in our efforts to establish genuinely evenhanded conditions for women in the workplace; we should endeavour aggressively to ensure that their participation continues progressively to rise, and that they receive equitable remuneration at every level in the hierarchy. But at the same time, we will probably need to recognize that what often seem no more than stale comments about motivation, child bearing, family responsibilities, and what have you, that are served up to justify the status quo, probably do in some degree suggest that there is an indeterminate but nevertheless outer limit to what can be achieved. Good-faith efforts can indeed help to level the playing field, but they cannot alter biology. It is not the world in which I have spent my

150

Transforming Rights

adult life, and certainly not my wife’s preference, but it would be foolish simply to dismiss the idea that some women may choose freely to remain at home or to lessen the burden of the climb up the greasy pole in favour of what they perceive as a more satisfying family life, as against what some have called the superwoman approach. Well and good. The point, at least as I see it, is that this should be a genuine choice, made in circumstances in which a woman could choose another path if she wished, and not one that has been forced on her by archaic male-devised strictures. I know these words may have a curious ring to them, coming from one who has spent so many years promoting women’s rights as fundamental human rights. Nevertheless, they probably reflect life in the real world. But the real world need not deny equitable conditions for women’s advancement. For example, adequate, affordable day care would help greatly, as compared with the present government’s disguised return to family allowances that do little to permit a woman to participate in the workforce if she wishes to. And reliable early education and care for children of a somewhat older age would also allow her to carry on if she wishes, in more or less as comfortable a situation as a man visà-vis her work and her home responsibilities. Always bearing in mind that, while we can set the parameters for equitable participation and equal pay, we must accept that there are areas beyond that, into which collective action probably cannot take us. b) Sexual Orientation In December 1967, Pierre Trudeau, then minister of justice, observed that ‘the state has no place in the bedrooms of the nation,’ one of Canada’s great political bons mots that has resounded down the corridors of power for forty years. Nevertheless, for all his flair, his outlook on the matter was cautious, as was the approach of his government when he became prime minister in 1968. In presenting legislation dealing with the decriminalization of homosexual acts to Parliament in 1969, John Turner, Trudeau’s successor as minister of justice, described the government’s position as follows: ‘These amendments remove certain sexual conduct between consenting adults in private from the purview of criminal law … Parliament would not, in adopting these amendments, be condoning this type of conduct.’53 This way of thinking was largely representative of the attitude of many parliamentarians at the time, and when the Human Rights Bill was before the House some years later, it

Human Rights

151

was clear that MPs still did not have the stomach to accept a controversial amendment that would have added ‘sexual orientation’ to the types of discrimination to be prohibited by law. As my predecessor, Gordon Fairweather, reported, they ‘agreed not to include certain suggested proscribed grounds … deemed to be contentious, in order not to imperil the swift and unanimous passage of the Bill.’ Mr Fairweather’s response was straightforward: there was discrimination against homosexuals, and ‘on moral grounds alone, the victims … are entitled to the same protection of their rights as the victims of forms of discrimination now covered by the Canadian Human Rights Act.’ He continued: Although moral or religious convictions are relevant to the private lives of individuals, when it comes to job performance or access to services sexual orientation is irrelevant … persons who are being denied equality of opportunity on the basis of their sexual orientation are being discriminated against. It is on this basis that we recommend the addition of sexual orientation as a proscribed ground of discrimination.54

He also observed that a public opinion survey conducted by the commission showed that two out of three Canadians thought that sexual orientation should not be a barrier to employment.55 Be that as it may, governments were apparently not convinced. Not surprisingly, I suppose I should add, for it was not only in Parliament that equal rights for homosexuals were a difficult pill to swallow. ‘Public opinion’ was doubtless as the commission described it, but there were powerful opposition forces that were prepared to resist as long as they could. There was also a long-established practice in the Canadian public service of denying security clearances to homosexuals, on the grounds that they could be blackmailed. On a personal note, I can attest that, in 1958, some two years after I joined External Affairs as a young foreign service officer, a purge of homosexuals in the Department was underway. Never given any attention in the media at the time (in itself an indicator of proper thinking of the day), it was nevertheless known what was going on, and there were colleagues whose careers and private lives were damaged by the fallout. Superficially, there was something to the security argument. After all, homosexual activity was a criminal offence, and anyone involved in it was therefore a security risk who had to be kept away from ‘sensitive

152

Transforming Rights

material.’ Given the way in which External Affairs operated, this pretty well meant leaving the Department, as otherwise an officer’s usefulness would be severely circumscribed, even leaving aside the problem for the Department’s image that might be caused if flagrant examples of ‘moral turpitude’ on the part of its officials were to become public. The circularity of the reasoning involved does not seem to have bothered the authorities. If homosexual behaviour had not been illegal, then of course there would have been no grounds for blackmail, as long as the individuals concerned did not make a secret of what subsequently came to be called their ‘sexual orientation.’ The solution might seem obvious: decriminalize and do away with the security problem … and the discrimination. But life is never as simple as that. Even after such behaviour was removed from the Criminal Code, the problem remained – the security people said it was still unacceptable, and therefore it was. And then, with the passage of time, slowly at first, and then with remarkable alacrity, public attitudes began to change: first to one of ‘don’t ask, don’t tell,’ so to speak, to one of indifference, to recognition that sexual orientation was not an acceptable ground for discrimination, and finally to a willingness to accept that homosexuals should be treated like any other member of the Foreign Affairs Department (as it was now called), or for that matter the public service in general. In the end, it was to take some twenty years before another Liberal government finally worked up the courage to take the fateful step of amending the Human Rights Act. In the meantime, there was much activity in the courts, and pressure from the commission and many interested parties to get on with the job. As I put it in testimony to a Senate committee, ‘the Canadian Human Rights Commission has been arguing in favour of the inclusion of sexual orientation in the Canadian Human Rights Act for some time … The issue for us is not a matter of lifestyle; it is a matter of fairness. Ensuring that all Canadians enjoy the same rights and benefits regardless of their race, religion, sex, age … and sexual orientation is what equality rights are all about, no more and no less.’ By the mid-nineties, this was recognized in the anti-discrimination laws of seven provinces; only Alberta, Newfoundland, and Prince Edward Island did not mention sexual orientation in their human rights legislation. It had also been confirmed by the courts: by the Ontario Court of Appeal in the Haig and Birch decision;56 and by the Supreme Court of Canada in the Vriend case regarding Alberta legislation, and the Egan and Nesbit case.57 In the latter case, all nine justices agreed that

Human Rights

153

sexual orientation was indeed a prohibited ground of discrimination under section 15 of the Charter. In light of these decisions, I was often asked, as commissioner, why an amendment to include sexual orientation as a prohibited ground in the Canadian Human Rights Act was even necessary, since it had already been ‘read in’ by the courts. Our response was that Parliament had a responsibility to legislate, and that Parliament should not abdicate its responsibility just because not everyone agreed with the courts’ pronouncements. We also argued that ordinary citizens should not have to study the courts’ jurisprudence to know that the law prohibited discrimination on the ground of sexual orientation: Parliament itself should make its intention clear in legislation. In the event, the government finally moved in 1996 to amend the Human Rights Act to include ‘sexual orientation.’ And in 2005, again under pressure from the courts and following a reference to the Supreme Court of Canada, it introduced the Civil Marriage Act, whose purpose was to provide that ‘marriage, for civil purposes, is the lawful union of two persons to the exclusion of all others,’58 instead of the traditional reading, ‘of a man and a woman to the exclusion of all others.’ At the same time the new act protected the position of the churches by providing that ‘nothing in this Act affects … the freedom of officials of religious groups to refuse to perform marriages that are not in accordance with their religious beliefs.’ With these few words, ‘the lawful union of two persons,’ what one observer has called ‘a social revolution,’59 came to a conclusion. The Charter had been interpreted by the courts as including ‘sexual orientation’; it had been incorporated in the Human Rights Act as a prohibited type of discrimination; and Parliament had passed legislation permitting marriage between two individuals of the same sex. And all this had come about exceptionally quickly, when one thinks of the usual time frame for significant social change. Moreover, Canada was a world leader on the issue of equality for homosexuals, in fact as well as in the more common phenomenon of our self-estimation. Nevertheless, in the press and among the public at large, as reflected in Parliament, there was still considerable opposition. Thus, pressure built up for the then newly elected Conservative government to reopen the same-sex marriage debate in the House of Commons, a commitment first stated in the party’s electoral platform. In the event, the motion to re-open was brought forward at the end of 2006 and defeated in the House on 7 December by a vote of 175 to 123.

154

Transforming Rights

The issue would therefore appear to be finished as far as law and Parliament are concerned. The qualification ‘in law,’ however, remains an important one, for societal attitudes doubtless do not change so rapidly. Still to be dealt with are proponents of the ‘slippery slope’ argument, who contend, for example, that approving homosexual unions could lead to accepting polygamy. In fact, it is absurd to group polygamy and same-sex unions together. There are long-standing international commitments by Canada to the position that polygamy is unacceptable, because it is profoundly harmful to women. It has nothing to do with protecting equality rights; on the contrary, it is clearly discriminatory against one class of Canadians: women. Canadians are perfectly capable of making that distinction, and I have no doubt they will. Nevertheless, I also think that the controversy is likely to continue to bubble along for some time, at least among pressure groups on one side or the other. A final thought. Would all of this have been possible without a push from Pierre Trudeau? I suppose the short answer is ‘yes,’ in the sense that history moves in its own inscrutable ways, even for proponents of the ‘great man’ thesis, and that it was moving in the direction we have seen in various parts of the world. Nevertheless, in Canada, Trudeau as justice minister and then prime minister evidently deserves some credit for moving the ball down the field, through changes to the Criminal Code and the adoption of the Charter. As do the courts, and the federal and provincial human rights commissions. c) Age Discrimination As with the other grounds of discrimination, we need to have a closer look to determine what age discrimination entails. First, however, we should take a moment to recognize that it can involve the young as well as the old. Indeed, one British study suggests that ‘Young people suffer from age discrimination at work more than older age groups.’60 Or at least they report that they do.61 Yet it is my impression that, apart from special interest groups representing young people, this is not an issue that normally attracts serious concern in Canada on the part of the general population. This is not meant to suggest that there is nothing going on with respect to younger individuals. At the level of the Supreme Court, for example, we might recall the ‘spanking case’ that gained rather a lot of attention not so long ago. The Court decided,62 in brief, that parents or persons

Human Rights

155

standing in the place of a parent were justified in using a reasonable amount of force with children, provided that ‘The force must have been intended to be for educative or corrective purposes, relating to restraining, controlling or expressing disapproval of the actual behaviour of a child capable of benefiting from the correction.’63 As a result, a Criminal Code provision to that effect was judged to be constitutional. Or one might move up the age scale to a case64 involving a young woman in the under-thirties age group who brought an action against a Quebec social assistance regime that paid less than normal benefits to unemployed persons in her age bracket unless they participated in ‘employability programs.’ The court decided that a system of this sort, with the objective of encouraging such persons either to find work or to go to school, was not a violation of equality or personal security rights provided for in the Charter. These are not by any means the only examples of issues involving children or young people. There are enduring themes of debate relating, for example, to the proper age at which one may expect to be able to vote or get a driver’s licence or drink alcoholic beverages, or to the age of sexual consent. But I still come away with the impression that what some social scientists call ‘adultism’ does not engender the kind of indignation that is aroused by other types of discrimination. Perhaps it is because the public senses that genuinely significant examples of unacceptable treatment of children are more likely to be found in brutal violence or child labour or prostitution that exist in various parts of the world. These are not concerns that fall within the compass of this essay, but I hardly need to emphasize that they are all too common worldwide, and that they are deeply disturbing. In any event, the matter of discrimination against older people is enough to keep us going. Everyone ages, and we all have some knowledge of what old age encompasses. One might have hoped that this would bring with it an understanding of, and even sympathy for, the problems involved. But if we were to pay attention to complaints to human rights commissions and similar institutions, we would soon learn that this is not necessarily the case. Over the years, there have been many individual cases, and they are still running at some 6 per cent of the federal commission’s intake.65 In the bad old days, all this was simple. No one paid much attention to age discrimination, and employers, if they so wished, could simply not hire older workers – or could let them go even if they had a lengthy employment record. No reason needed to be given, other than the obvi-

156

Transforming Rights

ous one that the employer had a responsibility to keep his customers happy and to sell his product, and that he needed the ‘right people’ to achieve those ends. With the advent of human rights codes, however, this was not enough. ‘Age’ became a prohibited type of discrimination, and the employer had to make a reasonable case. Nevertheless, I have the sense that a simple reluctance to hire individuals who are perceived as ‘not getting any younger’ remains a fact of life, however well employers may try to hide it, for reasons of political correctness, or because they are worried about being hit with an allegation of a human rights violation. Hence the uneasy search for bona fide reasoning, even if it amounts to little more than a euphemism. Sometimes it is obvious enough, be it said: if you are a quarterback and can no longer pass the ball, you are out; but if you are said not to fit with the style in cheerleaders that management is looking for, there may be a bit of a problem. Perhaps ‘cheerleaders’ is pushing it, but I certainly remember from my days at the Canadian commission problems relating to airline stewardesses (as they were once called) or female TV announcers. And of course it was nearly always females – not the Walter Cronkites of this world. So there can be an admixture of sex discrimination that may complicate the problem. But the age element is sufficient to make the argument. And if one is talking about salesmen or insurance representatives or waiters or any other position where management wants a ‘vigorous’ image, as they perceive it, I think the situation is clear. What to do about it is the question. It strikes me that, just as with the other types of discrimination I have been discussing, all the machinery is in place. Individuals have to be determined enough to use it. And I am well aware that this is much easier for me to write about it than it is to go through the tortuous process of human rights agencies or the courts. Nevertheless, together with group action by interested non-governmental organizations, that is the way to go. And with enough determination, it works. Still, most employers or service providers are going to try to avoid human rights cases if they can. They are bad for business, among other things. And the old reasoning about ‘the normal age of retirement’ and other shibboleths of this sort no longer entirely pass muster, based as they often were on nineteenth-century reasoning about how long people lived and how long they could escape seriously slowing down after starting work in factories or mines at age fifteen or so. The issue of mandatory retirement arrangements provides a further

Human Rights

157

twist on this matter of searching for an acceptable – and accepted – reason for pushing people out of positions they feel they are still perfectly well qualified for. As might be expected in Canada, the situation differs from province to province, with Quebec the leader in banning any compulsory retirement on grounds of age, while others exempt over-sixtyfives from age discrimination under their human rights legislation, and yet others allow for exceptions for mandatory retirement under pension or other agreed arrangements. The fact that mandatory retirement does not exist for about half of the workforce further complicates the matter.66 At all events, the simplified version is that certain institutions, such as universities, can, in some provinces, insist that individuals retire at sixty-five, and this fact has resulted in litigation that has gone to the Supreme Court on more than one occasion. So far, the court has decided that the arrangements in question are not unconstitutional for a variety of reasons, including the effect of denying mandatory retirement on tenure and pension arrangements and the ‘retirement with dignity’ argument, that is to say that professors should not be subject to the ‘demeaning’ requirement of individual performance review to justify termination. In both cases there were dissents, which to my mind are more convincing than the views of the majority. In particular, in the Dickason case, Justices McLachlin67 and L’Heureux-Dubé concluded: The university’s fears about how tenure might be affected should mandatory retirement be eliminated are insufficient … Peer evaluation is a fair and equitable way of assessing professors in good faith, on the basis of their teaching, research and publication records, rather than on their age … The retirement with dignity argument depends entirely on the idea that professors who reach the age of 65 must necessarily fear assessment on the basis of their performance, because that performance has necessarily declined rapidly with age … the evidence conclusively refutes the myth of universal decline 68

It should be observed, however, that all this has to do with university professors. From what I gathered when I was human rights commissioner, from talking to certain labour union leaders, their doubts about doing away with mandatory retirement could well be more convincing in other areas. After all, with due respect to the demands placed on ‘intellectual workers’ like postsecondary teachers – or people like myself, for that matter – it may be that workers on the production

158

Transforming Rights

line need to consider slowing down after forty-odd years and require the protection of pension arrangements that could disappear without union-negotiated retirement systems. A changing world entails evolution with the times, and the federal and provincial governments have been moving away from mandatory retirement in any event.69 Furthermore, as I have pointed out, many workers are not covered by such arrangements, and others seek to retire much earlier if they can afford it. At the same time, to the contrary, the U.S. Bureau of Labor Statistics has reported that the number of employed people who were sixty-five and older ‘doubled from 1977 to 2007.’70 And it could be that Canada Pension Plan benefits may be changed one day to put back the normal pensionable age beyond sixtyfive, which of course could also push workers towards older retirement ages. All of these are issues that affect Canadians, and they may well influence the future of mandatory retirement in that broader perspective. But from the individual’s standpoint, in light of Canadian and international human rights standards, I see no reason to change the conclusion the Canadian commission put forward some years ago: competence, not age, is the only consideration that should be allowed to determine whether a worker is forced to leave a particular job. This is not to slight the notion of well-merited retirement; it is simply to state that those who want and are able to hold their jobs after ‘the normal age of retirement’ should be entitled to do so … there is no compelling evidence to suggest that they cannot be accommodated by a reasonably flexible employment system.71

d) Disability More than once in my time at the Human Rights Commission, I had occasion to describe persons with disabilities as ‘Canada’s forgotten people.’ They may not any longer be put away in an upstairs back room, or confined in an institution, with tacit acceptance that ‘the problem’ is not to be mentioned in polite society, as was so often the case in the past. But they still do not receive the attention they deserve among minority groups envisaged by human rights legislation and practice in this country, or indeed on the part of the general public as a whole. This is certainly not because their numbers are insignificant. According to Statistics Canada, as many as 4.4 million Canadians reported

Human Rights

159

having activity limitations in 2006: a disability rate of 14.3 per cent, up from 12.4 per cent in 2001, with increases observable in all provinces.72 This is of course a very broad measure, and that is doubtless part of the problem. Even so, the figures are impressive. And in addition, according to its 2007 report, the largest number of complaints to the Human Rights Commission relate to disability.73 That some 35 per cent of complaints should be based on that ground is a sobering reminder that something is wrong. Is it a result of less than effective lobbying by the groups concerned? Or of more extensive self-identification? Even where there has been some progress – for example, regarding employment of disabled persons – appearances may be deceptive. One can make up numbers by what I called some time ago ‘creative accounting,’ that is, ‘broadening the criteria for self-identification to the point where people with almost indiscernible disabilities are included in the count.’ In any event, it is counter-intuitive for some people to accept that so many individuals can possibly be ‘disabled’ in what they consider any real sense of that expression. In other words, depending on who is using these and similar terms – and for what purpose – one can reach very different conclusions, and this leads some observers to be sceptical about the whole affair. Nevertheless, the numbers cannot be gainsaid, and the fact remains, whatever the explanation, that not enough has been done to deal with the problem. Gordon Fairweather told a House of Commons committee more than twenty-five years ago that ‘Canada’s failure to meet the needs of the disabled was a failure of the national will,’ and urged the provision of ‘better protection against unequal treatment to the disabled.’74 I think that remains a reasonable assessment to this day. To be fair, it is true that there have been advances, and it is certainly the case that there is much less direct discrimination arising from an unwillingness to put old ideas behind us. Nevertheless, indirect or unintentional discrimination is still far too frequent, in both the private and the public sectors. Does it really matter whether an employer simply will not hire a physically disabled person or that he does not think to provide accessible washrooms or work spaces? The fact is that much of what we deem a disabled person’s ‘handicap’ results not from his or her impairment but from society’s reaction to the disability and its inability or unwillingness to deal with it. ‘A disabled person need not be handicapped,’ as Justice Abella has astutely observed.75 The fact is that, even where direct, open discrimination has substantially diminished, there remains a disheartening tendency on the part

160

Transforming Rights

of some employers and individuals or organizations offering services to put up barriers. In employment situations, this often takes the form of the ‘bona fide occupational requirement’ (BFOR). Of course there may be good reasons – in terms of safety or effectiveness, for example – to cite a BFOR, but equally there are numerous occasions where it is based on outmoded if not disingenuous reasoning. To illustrate, in my time at the commission, we had several cases involving the Canadian Armed Forces where their BFOR defence was essentially arbitrary, for example, the ‘biomass’ measurement of obesity. Too often, the military simply did not justify adequately a refusal to hire or promote an individual, or back up as a reason for dismissal the justification that he was ‘medically unfit.’ Equally, to illustrate the matter of government services, the commission has described the results of a study published in July 2005 to the effect that there is a failure ‘to adequately accommodate the needs of Canadians who, as a result of a disability, cannot use the regular government telephone system.’76 The enquiry found that ‘only 50% of government departments and agencies list TTY (teletypewriter) numbers, and, when tested, only one third of these numbers were operational.’ It is true that the commission adds that the government’s response has been ‘very encouraging,’ but in terms only of promises, and a ‘memorandum of understanding’ with the Treasury Board. I hope I can be forgiven a certain scepticism until the results are in. I have heard far too often of unfulfilled government commitments, even at the highest levels, in regard to language rights as well as human rights, not to entertain substantial doubts. What of the future? The essential building blocks are in place: there are the Charter, legislation, tribunal, and court decisions to cite; there are human rights commissions to appeal to; governments and the private sector know what needs doing. And there is now a new international mechanism in place that will eventually permit complaints to the United Nations on grounds of disability.77 In other words, the structures are there in their fundamentals, whatever adjustments to the nuts and bolts might continue to be helpful as one goes along. What is lacking, as is so frequently the case, is the will – principally, but not exclusively, political strength of mind – to set the priorities and get on with it; and of course the resources, both in funds and personnel, which should flow from that determination. Pointing all that out is easy for any bystander, as I have now become; I am well aware from many years’ experience that acting on these precepts is rather more demanding.

Human Rights

161

e) Race, Ethnic Origin, and Religion When one conjures up the notion of ‘discrimination’ in contemporary society, it probably is the case that, with the possible exception of sex discrimination, racial prejudice and bigotry against national and religious minority groups are what come first to mind. There is a special U.N. convention against racial discrimination; there are racial equality boards in many countries; and much attention has been given to the place of race and ethnicity in the rights hierarchy. This can hardly be surprising, given the appalling history of slavery and genocide that has ‘outraged the conscience of mankind’78 for generations past, and that reached unimaginable depths in the events of the Holocaust. Furthermore, although I do not mean to conflate the three types of discrimination, I believe it makes sense to deal with them together, especially as they are cited together in the Canadian Charter and the Human Rights Act and have always been treated together by the Canadian Human Rights Commission in its reports to Parliament. This being said, on the substance of the matter, we need to observe to begin with that they have been with us since Canada’s beginnings. Bias against Roman Catholics and racial discrimination against blacks and Aboriginal people came to us in our country’s early hours; prejudice against persons of Asian extraction who arrived in the nineteenth century was not far behind; as were anti-Semitism, and anti-immigrant sentiments involving East Europeans who immigrated at the outset of the twentieth century. All have formed a deeply regrettable part of our unfolding history, and one that certainly has not disappeared from our national tableau. At the same time, it is fair to say that we have moved away from those unhappy days; and how this came about, and where we are headed, seems to me to be worth further examination. Once again, the end of the Second World War must be taken as the turning point. However excessive the hypocrisy of the international community, involving among others our nearest neighbour and our two mother countries, in embracing the Universal Declaration of Human Rights while pursuing discrimination against blacks and colonial distinctions between the masters and the masses, the war did throw out a challenge of ideals that could not continue to be ignored. And these ideals eventually formed the basis, both internationally and nationally, of anti-discrimination regimes that we have been attempting to perfect ever since. With the adoption of international covenants and domestic legislation in many countries, direct, open discrimination had to go.

162

Transforming Rights

The shame is the extent of its tenacity, persisting as it did in our country and other Western societies through the fifties, sixties, seventies, and beyond in the last century, and against which we are still fighting a rearguard action in more subtle forms. On religious discrimination, for example, we may have put Orange Lodge marches behind us, but we still find it difficult to offer all religions a measure of equality. I have referred elsewhere to the matter of Sikh turbans and kirpans, or to inequalities in the funding of Jewish education, to choose only a couple of illustrations. To generalize, as my predecessor at the Canadian commission observed in one of his early reports: Canadian laws and customs which go back in time tend to take account of Christian customs and observances, with some lesser accommodation for Jewish religious obligations. But accommodation is not always made for other minority religions, and their obligations are not always easy to harmonize with prevailing social systems.79

It strikes me that, more than twenty-five years on, this is often still the case, although with a push from the courts we have come to appreciate the importance of accepting other religious differences in a number of cases. On questions of race, there have been any number of issues to report over the years. The ‘Chinese head tax,’ and our unacceptable treatment of Japanese Canadians during the last war, are obvious illustrations, on both of which, be it said, an effort has been made by government to set matters right. There have also been numerous individual cases involving blacks, South-East Asians, and other racial groups, and the national or ethnic origin of various individuals, although such cases have diminished over the years.80 If memory serves, we have also been reasonably successful in resolving most of them to the satisfaction of the complainant, though a perfect score is evidently beyond the aspirations of this world. Where both the federal and provincial authorities and Canadian society at large have been less successful is in addressing the equally important systemic problem of fuller integration of racial minorities in the public and private sectors. I shall return to this below in my examination of employment equity, but it needs to be said here that this sometimes devious obstacle to adequate participation of minorities in Canadian life needs to be tackled far more firmly than it has,

Human Rights

163

for all the fine political rhetoric that has been thrown at it. Not long ago, for example, the Ottawa Citizen reported in a front-page story81 that the Public Service Commission ‘is launching a probe into why visible minorities aren’t landing jobs in the public service in anywhere near the large numbers that apply.’ There is no reason to assume that this is the consequence of deliberate discrimination, but the result is similar: lower employment, lower income, and less than satisfactory incorporation into Canadian society. And it cannot be entirely an oversight, given the continuing attention and public criticism on the matter by parliamentary committees, monitoring bodies, NGOs, and the media. The question of discrimination on grounds of national or ethnic origin presents much the same picture.82 Like the others, it has been an objectionable feature of Canadian life for generations. Things are better today than they were, to be sure, especially in regard to open bias against and sometimes contemptuous treatment of newcomers; nevertheless, such discrimination remains part of a familiar pattern of obstacles to employment, especially in fields in which ‘new Canadians’ have been trained in their countries of origin; and with similar results, as the Globe and Mail has highlighted under a headline reporting that ‘Immigrants Battle Chronic Low Income.’83 Governments can and do accomplish something to help potential immigrants before they arrive, as our immigration offices have always tried to do, and as the federal authorities did, for example, by removing a clearly discriminatory ‘landing fee’ for refugees and reducing it for other categories. But that does not resolve the problems they face when they get here, in searching for employment without the benefit of ‘Canadian experience,’ in coming to terms with one of our official languages, and a host of other difficulties. The state obviously cannot assuage everyone’s worries, but the federal, provincial and municipal authorities need to be as vigorous in seeking to smooth the way to integration as they are in seeking workers (and their families) that Canada needs. Some of these problems may be exaggerated by lobby groups, but there are too many reports of PhDs driving taxis, or even of applicants being rejected for being ‘over-qualified,’84 for them all to be false or misleading. At the risk of repetition, I have to say that, in my own view, participation in the work world – and all that goes with it – remains the single most important factor in creating and reinforcing a peaceful and accommodating culture that can avoid the hazards of many immigrant societies. And an anti-immigrant or anti-newcomer attitude, however disguised it may have become in

164

Transforming Rights

light of successful actions by human rights commissions, the courts, and a vigilant public and media, can only leave us with conflict-ridden and indeed potentially violent situations that are all too common across the world. The ‘spectre of an indigestible influx of job-snatching welfare cheats has virtually no basis in reality,’85 and equally has no place in contemporary Canada, where it can only be harmful to our security and welfare. Two overarching problems deserve separate mention. First, ‘racial profiling’ is a system-wide challenge where the public authorities are concerned, particularly with the police but also with other government services such as customs examinations at our borders. In my time at the Canadian commission, the standard defence was that no unjustified assumptions were being made; it was simply a matter of common sense. A ‘reasonable apprehension’ that non-white youngsters in an automobile pulled over late at night were ‘up to no good.’ Or ‘experience’ that caused a non-white person arriving from certain parts of the world to be stopped for further inspection. Maybe. But on further investigation, there was too often reason to cast doubt on this type of assumption-conclusion. And in the case of the police, the unfortunate tradition of self-investigation is one that exacerbates an already difficult state of affairs, and that should be abolished once and for all. And then there is the matter of ‘hate propaganda.’ I want to add here only that, first, it won’t go away, and, second, that we must, if we see ourselves as a civilized society, go after it as forcefully as we possibly can. All the legal underpinnings are there, from decisions by the Supreme Court and human rights tribunals to the U.N. Human Rights Committee.86 The problems are practical ones that have become more multifaceted with technical advances in modern communications, particularly the spread of hate propaganda on the Internet. Difficulties in locating the perpetrators and problems in deciding legal responsibility are complex but certainly not beyond the wit of man to resolve Another aspect of the problem relates to hate propaganda spread through the classroom or by teachers, even outside the classroom, when they enjoy a privileged place in the community and vis-à-vis their pupils. Again, the tribunals and the courts have set legal standards that should provide sufficient underpinning for dealing with these questions in a democratic society, while not undermining the right of free speech. At least in principle. In practice, although I don’t believe one should belittle past achievements, I am not optimistic that we can

Human Rights

165

do away with the problem, given the human propensity for misunderstanding of, and even hatred against, the unfamiliar. I also do not dismiss the free speech argument that hate mongers should be allowed to do their worst in the knowledge that lies will eventually die on the vine if they are not fertilized by publicity. However, I am aware that editorialists who promote this line have newspapers to sell … and are not usually members of the minorities who are subjected to this sort of abuse. To conclude, what I am suggesting is, first, that most of the machinery we need to combat discrimination is in place, and that what is required is the political and societal determination to make it work. Second, that handling individual complaints, especially of direct discrimination, is the easy part; the difficult element is system-wide, half-unconscious discrimination based on vaguely accepted stereotypes. And third, that the most important consideration for minorities is the capacity of society to integrate them in a welcoming and generous manner. These objectives will never be fully and easily within our grasp, but Canadians probably have a better opportunity than most to reach out for many of them. The above review of some of the major types of discrimination, particularly regarding race and ethnic origin, leads directly to the issue of multiculturalism, one of the most challenging areas of public policy in contemporary North America and Europe. 6 Multiculturalism The notion of multiculturalism, even though subjected to considerable battering, seems thus far to have survived intact in our country. Even at a time of increasing unease over what may appear to be hostile reactions, not to say potentially violent action, against ‘Canadian values,’ multiculturalism as an accepted government policy does not appear to have suffered as much as one might have imagined, given developments elsewhere, beyond our borders. And its links with human rights and anti-discrimination seem to have remained relatively untouched. We need, however, to look more closely at those links and at the history of the multiculturalism idea; and we need to ask ourselves to what extent it can spread and take root in everyday life without becoming divisive or threatening Canadian cohesion. The earliest references to the concept, in the work of the B and B Commission, amounted to no more than a rather timid exposition in Book IV

166

Transforming Rights

of their report on ‘the other ethnic groups.’ Nevertheless, it was probably one of the first thoughtful accounts of what was bubbling beneath the surface, and sometimes boiling over, in response to the commissioners’ well-known orientation towards biculturalism as that was perceived in parts of the country outside Quebec, among ethnic groups that did not share the ‘two nations’ perspective – and who asked themselves as a result where they fitted in. Thus began, in the early to midnineteen sixties, the push towards a tradition of a ‘multi’ rather than ‘bi’ cultural approach to Canada, especially among groups originating in Eastern Europe but, in time, with the addition of many others. These somewhat tentative beginnings were to grow on the public stage, essentially for political reasons, until they culminated in their inclusion in the Charter of Rights in 1982, and the Multiculturalism Act in 1988. Let me be clear about one thing to start with: I do not use the turn of phrase ‘political reasons’ in a pejorative sense. We are a democratic country in which many groups have their place, and it is perfectly natural that governments and legislatures should take full account of that fact. In principle and in practice, I might add. All that being said, it must be conceded that the B and B commissioners could have had no idea of where their somewhat diffident comments on the subject were headed. Writing in terms of institutions, for example, they observed that privately sponsored schools should carry on as they always had, but they did not think that public schools should be passing on the ‘total cultural heritage’ of the students’ parents or that the private schools should receive more general public financing. The commissioners also did not believe in the ‘formal representation’ of various ethnic groups in government agencies, boards, and similar public institutions. And they doubtless would have been appalled at even the thought of ‘quotas.’ In short, they did not maintain anything like the same assertive stance in this sphere as they repeatedly advanced in relation to biculturalism. Meanwhile, the rest of us were moving from a narrow British-French tradition to an emphasis on the importance of pluralism, which was seen as combating the unacceptable doctrine of ‘two founding nations,’ and as promoting the role of all ethnocultural groups in the construction of this country. In other words, the government of the day was responding to ethnic diversity. One should also acknowledge, however, that some political figures, notably Mr Diefenbaker and his supporters, were opposed to a policy of multiculturalism from the beginning, as ‘hyphenated Canadianism.’

Human Rights

167

Latterly, we have shifted to a perspective from which some commentators apparently assess multiculturalism as divisive and the creature of special interest groups. The difference, let us be honest with ourselves, relates largely to race and non-Judaeo-Christian religions: huge demographic changes have transformed the concept into one that embraces more significantly the situation of migrants from Asia, the Middle East, Africa, and the Caribbean than those from, say, Eastern Europe. This is evidently a thornier problem of public policy and human relations, and one that brings out the worst in many of us when it arises on our home turf, however proud we may be in principle about Canadian ‘tolerance of diversity.’ In any event, several years of debate and the rapidly changing nature of the Canadian population made all the difference: from Prime Minister Trudeau’s statement on multiculturalism policy in 1971 to the provision of the new constitution a decade or so later that ‘This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.’87 There has naturally been some debate as to exactly how significant this provision is. For example, Peter Hogg has taken the line that it was more a ‘rhetorical flourish’ than anything substantive,88 whereas, to the contrary, another observer has referred to its ‘uniqueness in constitutional law’ and asserted that the courts have used it to shape the meanings of certain rights.89 Nevertheless, however one judges it, there can be little doubt that the political progression from the original B and B Commission’s consideration of the matter represents an enormous step forward. And within half a dozen years, under a Conservative government this time, further legislation was added that enshrined government policy and the Charter guarantee in a number of specific commitments to ‘recognize and promote the understanding that multiculturalism is a fundamental characteristic of the Canadian heritage and identity …‘ Among other things, the legislation states that the Minister shall: (a) Encourage and assist individuals, organizations and institutions to project the multicultural reality of Canada … (b) Undertake and assist research … (c) Encourage and promote exchanges … among the diverse communities of Canada … (d) Encourage and assist full participation in Canadian society, including the social and economic aspects, of individuals of all origins …

168

Transforming Rights

(f) Facilitate the acquisition and retention of all languages that contribute to the multicultural heritage of Canada … (g) Assist [in] overcoming any discriminatory barriers, in particular discrimination based on race or national or ethnic origin … (h) And assist in other projects … designed to promote the multiculturalism policy of Canada.90

Finally, the minister is also required to table annually in Parliament ‘a report on the operation of the Act.’91 Most Canadians are not aware that this is the law of the land. That it is should perhaps be recalled more forcefully when there are complaints about efforts to recruit minorities into the public service or the prominence given to measures to combat discrimination on grounds of race and ethnic origin. For it is here, especially in the emphasis on ‘full participation’ and ‘overcoming any discriminatory barriers’ that the concept of multiculturalism and the fundaments of the Canadian Human Rights Act and employment equity legislation92 come together. Without filling in the details, and without monitoring to ensure that legislation is respected in practice, one is left with no more than fine constitutional words. In this context, it is worth repeating the terms of the introductory paragraph of the Employment Equity Act, which describes its purpose: to achieve equality in the workplace so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and, in the fulfilment of that goal, to correct the conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities by giving effect to the principle that employment equity means more than treating persons in the same way but also requires special measures and the accommodation of differences.93

All this is quite a handful. More than that, it is surprising, at least to me, that it came about so rapidly, under both Liberal and Conservative governments, at a time when very few countries had gone at it with anything like the same vigour. And further, that in more or less the same time frame, the character of multiculturalism (and the immigration policy that feeds it) was also shifting from white European to multicoloured Asian, Indo-Pakistani, Caribbean, and African. And lastly that, for all our doubts and problems, Canadians seem, so far, to have

Human Rights

169

pulled off their ‘multicultural gamble’ more effectively than one might have anticipated. Why should this be so? How, after all, is multiculturalism to be understood? And how far can it go without threatening national solidarity? Many have come to worry about these issues in Canada; and I dare say many more, and more controversially and stressfully, in other countries like Great Britain and France, from which we derive (or at least used to derive) many of our traditional ways of thinking, not to speak of our large neighbour to the south. It is worth noting that other countries have dealt with these issues in exceedingly diverse ways, which often do not resemble the Canadian experience. In theory at least, the Americans have been true to their motto, E Pluribus Unum. Immigrants are expected, except for private purposes, to leave their language and culture behind, where they came from, and become Americans. That this has happened less in recent years, with the resulting linguistic and cultural cacophony that they often fret about, is really beside the point. They ought to see the rightness of the idea, as did the ‘huddled masses’ of earlier generations. They are in fact headed now and in the future in a different direction, towards a society in which, for example, the Spanish language, even though not ‘official,’ is used by massive numbers of people, in California, in the South West, in southern Florida, and even in New York City. It also reflects a mix in which California has a non-white majority, with other states following not far behind. One would have thought these facts would provide a wake-up call. But old ideas die hard, and there is no sign of real change that I can perceive. The French hold even more draconian views on multiculturalism, if one can generalize at all about such an unruly nation. Many moderately liberal French men and women would probably endorse the following observation: To immigrate is not merely to change one’s geographical location; it changes one’s history … When one immigrates, one chooses a new country for one’s children, and thus a new history. When one changes locations while wishing to keep one’s national past, one has not really immigrated.94

One may disagree with this way of thinking, but it represents a point of view that I have heard expressed by French colleagues whose commitment to human rights is certainly as profoundly rooted as that of any Canadian I know. And moreover it is an approach that seemed to work in the past, with the successful integration (indeed assimilation)

170

Transforming Rights

of immigrants from all over the planet. Once again, however, one has to ask what meaning it can have in the current situation in France where the population inflow from North Africa and former West African colonies in the years following the demise of France’s empire has so radically altered the demographic face of significant areas of that country. Hence the long-standing debate in France, for example, with respect to the wearing of Muslim headscarves in the public schools. The French evidently see this as a direct challenge to their perception of ‘égalité’ within a secular state. We in Canada may have difficulty accepting this attitude, but then we do not have the heavy concentration of one racialreligious minority from one part of the world in a few areas of our country. If we did, whether we would be so welcoming as Canadians like to think we are is questionable. Of course, extreme versions of any of these ideas – whether emanating from the LePenistes in France, the skinheads in Germany, or the descendants of Enoch Powell in Britain – are regarded as offensive by reasonable people. But the fact is that more polite versions are common, and no Western society is immune to them. Moreover, although they may have their roots in man’s age-old inhumanity to man, there is no doubt that they also result in part from a simple reaction to change with which many people have trouble coming to grips. At all events, the troubles in France – rioting, demonstrations, and car torching – involving young people from marginalized racial groups, have caused almost mortal damage to the traditional ‘French model.’ Whatever the principle of égalité may dictate, the fact is that these groups do not participate anything like equally in French life, in politics or the media or business or academe. Even the figures needed to assess the extent of the problem are not available, for census data cannot at this time (by law) be collected on racial or ethnic origins. Moreover, an entrenched way of looking at minority participation by French society largely treats ‘affirmative action’ as a pariah, an attitude that ‘has proven a disaster,’ according to one observer.95 Whatever one thinks of quota-driven systems designed to ensure equitable participation in civil life, some form of government-mandated ‘employment equity’ program, as described in the legislation I have just quoted, is necessary if real progress is to be made. Voluntary initiatives, industry consultative bodies, and the like, which have been tried in France, are simply not sufficient. That Nicolas Sarkozy, the French president, seems to have recognized as much, and has also asked for a report on the ethnic statistics question, could, however, foreshadow a major policy shift.

Human Rights

171

In Britain, the focal point of the issue has been British-born young men, ‘radicalized’ by religious belief or perhaps more obscure motives, to wreak terrible damage on innocent individuals of all colours and ethnic backgrounds whose only common characteristic appears to be riding the bus or the subway. And more recently, the debate has taken on a particularly sharp tone over the issue of the niqab, a full-face veil worn by some Muslim women, and whether the interpersonal recognition that this is perceived as preventing is acceptable in contemporary democratic society. Why has this happened, the media ask. Can it be that the multicultural approach to minorities does not pay off after all? I suppose, for my part, it depends on what one means by the ‘multicultural model.’ Looking at an editorial in the Economist,96 I read that it entails ‘leaving them to their own devices, rather than trying to absorb them into the national culture,’ and further, that this way of doing things can lead to a ‘sense of alienation.’ All of this in the context of an essay devoted to what the press calls ‘home-grown terrorists’ that gives the reader a worrying picture to reflect upon. As far as I can see, the purported opposition between ‘multicultural’ and ‘integrationist’ models does not hold in Canada,97 at least to the degree just described. We are trying both to encourage immigrants to be proud of their diverse backgrounds and to participate in Canadian society. ‘Canada,’ Chief Justice McLachlin has remarked, ‘is historically pluralistic … And for Canada it has thus far worked.’98 At least more successfully than elsewhere, one might add, even though concerns over multiculturalism have intensified in this country. The question, however, is whether it ought to be more of a source of concern. In various parts of the country there have been objections to the multiculturalism policy on the familiar grounds that it discourages integration of immigrants. Others see the matter very differently. For example, Will Kymlicka suggests that it has not diminished the ‘tendency towards exogamy in the second and third generation or the decline of heritage language competence in every subsequent generation … [or] curbed immigrant integration.’99 And Jack Jedwab has contended that it helps social cohesion by fostering a sense of belonging among all ethnic groups. Further, he concludes, ‘there is now evidence of a stronger connection between multiculturalism and Canadians’ sense of identity’ and ‘what makes them different from Americans.’100 The courts in Canada have taken a similar line. Justices Iacobucci and Cory, for example, have observed that the multiculturalism principle ‘recognizes that all ethnic groups are entitled to recognition and to equal protection. It

172

Transforming Rights

supports the protection of the collective rights, the cultural integrity and the dignity of Canada’s ethnic groups. In so doing it enhances the dignity and sense of self-worth of every individual member of those groups and thereby enhances society as a whole.’101 If this reasoning provides some basis for cautious optimism, even in the new environment of the early twenty-first century, it does not deal with the nagging question as to how far a multiculturalism policy can be taken. How far can actions ostensibly based on a multicultural approach be carried before they become seriously disruptive, or worse? No one has a crystal ball, but I do not see it as divisive as long as we (we, the majority, I mean) encourage the concomitant idea of full participation in Canadian society by racial and religious minorities. The failure to have accomplished this in France, for example, is one of the major sources of French society’s inability to deal successfully with young people of Maghreb or African origin. In other words, uplifting constitutional words about rights and multiculturalism are worthless unless they are accompanied by reasonable minority representation, in Parliament, in senior government positions, in the media, and more broadly in the private sector. It seems to me unquestionable, at least anecdotally, that we have done better on this score than some of our European cousins. But there is certainly no reason for us to crow just yet. Even if we were to succeed in managing the participation problem, we would still be faced with the predicament of dealing with various forms of extremism. Can we reduce them to a minimum, and even largely eliminate their more violent aspects? First off, we need to be honest with ourselves, even if it means ‘politically non-correct’ thinking. All racial groups are capable of violence; that is evident. But the kind of violence or potential violence we are talking about is not happening within all Canadian racial or ethnic groups, majority or minority. There may be Asian gangs in Vancouver or violence among persons of Jamaican origin in Toronto or, for that matter, murderous activities from time to time on the part of the Hell’s Angels (not a non-white minority as far as I am aware), but they are not involved in terrorist actions. Those have so far been confined to a few Sikhs who imported their home-grown problems to Canada, and allegedly, since the events of 11 September 2001 in the United States, to some young Muslim men, mostly of Middle Eastern or Pakistani origin, with the occasional convert thrown in. I am no more privy than most readers to the secrets of our intelli-

Human Rights

173

gence services, but it appears to be obvious that what we are talking about, in large measure, is a radicalized Muslim minority that seems bent on taking out a desire for vengeance on Western institutions … and innocent bystanders. Whether these events are related to Canadian foreign policy is not for me to say. I can only argue, as I have above, that respect for all cultural traditions is an important weapon, and participation and inclusiveness are even more so, in dealing with marginalization and radicalization, and, by extension, with terrorist violence. Deference to the rule of law and our tradition of due process and fairness in the judicial system – including humane treatment of those who may be caught out in potentially violent action – in other words, of a cool-headed approach to terrorism, must also be allowed to do its work, in the hope that it will achieve our common goals. I do not think this is mere naïveté. The short answer, then, to the question ‘How far can multiculturalism go?’ is as far as the Charter, the law, and human rights principles allow. Plain criminal behaviour is evidently excluded. For example, there have been a few so-called honour crimes, as was the case in the murder by her family of a young Muslim woman in Italy, apparently for wearing revealing jeans and living with an Italian man. Or more recently in Toronto, when a father apparently strangled his daughter for similar ‘misbehaviour.’ Or in the case of female genital mutilation, practised in some parts of the world and occasionally imported to Canada by people from those societies. It hardly needs saying that nothing of the sort can be justified, or even mitigated, by citing ‘cross-cultural’ considerations. The issue of customs like polygamy that some immigrants also bring with them should be equally clear. It is illegal in Canada, even if the law is not always rigorously enforced, and I do not believe it can be saved by Charter guarantees of religious freedom. Moreover, the U.N. Human Rights Committee has declared that it ‘violates the dignity of women,’ and represents ‘inadmissible discrimination against women’ that ‘should be … abolished wherever it continues to exist.’102 It should also be noted, however, that this pattern of behaviour is not confined to recent arrivals, as it remains a tradition, albeit to a minor degree, among certain parts of the Mormon community in British Columbia. It may well be that dress requirements are less obvious, and that there is a sliding scale at work. Nowadays, many Canadians apparently accept, for example, that a Sikh wearing a turban is a normal phenomenon, as is a woman wearing a headscarf for religious or cultural

174

Transforming Rights

reasons. But most people, particularly women, find the niqab and especially the burkha unacceptably demeaning. As I have just indicated, the problem has become a cause célèbre in Britain; and the way things are going, it may well do so here as well.103 But is the fuss justified? First, as far as I can see, it is a relatively rare phenomenon, even for those who wear the hijab, or veil that does not cover the face. As to the niqab or burkha, I have never seen either in Ottawa,104 although I have heard that they may be more common elsewhere. In any event, it seems to be generally agreed that they are confined to a very tiny percentage of Muslim women in Canada.105 As a matter of policy, should even that be allowed? It strikes me, on grounds of human rights and religious freedoms, that we should go as far as we can to avoid interfering in private actions, while supporting women – both Muslim and non-Muslim – who identify these forms of dress as humiliating and are working to put an end to them. As to other areas of daily life – for example, where women come in contact with the state – there must be limits. One obviously cannot expect to get a passport or other form of photographic ID like a driver’s licence without allowing one’s face to be seen. But this is a far cry from the ridiculous controversy that broke out in connection with elections in 2007 as to whether ‘veiled women’ should be allowed to vote. As a simple generalization, I think we should keep our cool, while working to promote patterns of behaviour that are respectful of women’s rights. After all, we have long since become accustomed to different (very different) forms of dress, and this can be treated in the same way with a degree of accommodation on the part of the majority. There is disagreement over other aspects of the modesty-in-dress issue as well. For example, what is one to make of pupils or their parents who are opposed to mixed swimming or gym classes in what may be thought of as revealing costumes? Should the test be exclusively a matter of the importance of accommodating religious differences? Or should the Muslim community be prepared to make some concessions? Personally, it seems to me that allowing individuals to opt out of mixed classes is not unreasonable, but if there are cases where separate classes cannot be arranged without ‘undue hardship’ to the school administration, there should be compromise from both directions.106 There has also been continuing controversy over the kirpan, a ceremonial dagger worn by orthodox Sikhs, even though the matter was settled by a unanimous decision of the Supreme Court of Canada in

Human Rights

175

2006, at least in so far as schools are concerned.107 It should be noted, however, that an Ekos poll in September of that year reported108 that 77 per cent of respondents in Quebec and 62 per cent in the rest of Canada were opposed to the decision. And evidence that the problem has not gone away continues to surface: in 2008 another Quebec student was suspended from school in connection with allegations that he brandished a kirpan at fellow classmates. Elsewhere, this practice and reactions to it are very much mixed, although it should be noted that it is permitted in the House of Commons. While I was human rights commissioner, there was much debate as well as to how large it needed to be, with some Sikh representatives arguing that it had to be a full-sized dagger, while others were of the view that a miniature was sufficient. And further, that it could be sheathed in a manner that would be perceived as less threatening by others, and that in any event instances of violence committed with a kirpan are extremely rare. I might also observe that I have been known to bore my friends when this problem comes up (it tends to do so when ex-human rights commissioners are around) with the observation that, in the far off days when we were young, many boys carried a penknife to school, without harming anyone, for the purpose of playing games at recess, including the delightfully named mumblety-peg, an ancient pastime dating back to the seventeenth century. There is the question of Muslim or Sharia law requirements, as well, especially as they affect such matters as inheritance, divorce, or other aspects of the treatment of women. On the whole, I judge that they are not consistent with Canada’s international obligations. In addition, I do not believe they are acceptable to most Canadians, especially women, who consider them degrading and inconsistent with the Charter requirement of male-female equality, though they nevertheless continue to be promoted by some Muslims of both sexes. Finally, there are distressing problems illustrated, for example, by the excessive reaction to Salman Rushdie’s work (and, now, his knighthood) or to the Danish Mohammed cartoons, or by the murder of Theo Van Gogh in the Netherlands, reactions that, fortunately, have attracted criticism from Muslims as well as non-Muslims. There are as well the disturbing practices of religious institutions, including schools, which appear to promote intolerance, indeed hatred. The law on incitement to violence may be clear enough, but it is not always easy to pin these institutions down, especially when there is an element of the sword to be found in other religious traditions as well. We are left with a conun-

176

Transforming Rights

drum as to where religious freedom, indeed fervour, ends, and encouraging violence begins. Another aspect of the question, ‘How far can multiculturalism go?’ is evidently, ‘How far can the majority be expected to accommodate difference?’ One of the most noteworthy recent attempts to come to grips with this issue – of profound importance in a pluralist democracy like Canada – was the lengthy series of hearings undertaken and the comprehensive report produced in Quebec in 2008 by the Bouchard-Taylor Commission.109 In the final report on their investigations, the two commissioners observed that, ‘If we can speak of an “accommodation crisis,” it is essentially from the standpoint of perceptions,’ in particular the ‘very negative judgment’ of significant numbers of the Francophone Quebec population with respect to the ‘reasonable accommodation’ of minorities. Like the B and B Commission some forty years earlier, Bouchard and Taylor lived through many stormy sessions in their months of hearings. At times they were subjected to dubious, not to say outrageous, comments from Quebeckers troubled by what they saw as excessive demands by minority communities for recognition of their differences, without a willingness on their part in any way to embrace majority values. The commissioners distinguished Quebec’s approach to accommodation from the model (as they saw it) adopted elsewhere in Canada: the Canadian multiculturalism model does not appear to be well suited to conditions in Québec, for four reasons: a) anxiety over language is not an important factor in English Canada; b) minority insecurity is not found there; c) there is no longer a majority ethnic group in Canada … while citizens of French-Canadian origin make up a strong majority of the population in Québec …; d) it follows that in English Canada, there is less concern for the preservation of a founding cultural tradition than for national cohesion.110

As a result, a different policy was being followed in Quebec, which the commissioners described as ‘interculturalism,’ and characterized in general terms as seeking ‘to reconcile ethnocultural diversity with the continuity of the French-speaking core …’111 They went on to set out eleven further points, which they suggested would serve to define the idea more precisely, several of which are of interest from the perspec-

Human Rights

177

tive of this study. For example, ‘The principle of multiple identities is recognized, as is the right to maintain an affiliation with one’s ethnic group.’ And again, ‘For those citizens who so wish, it is desirable for initial affiliations to survive…’ And further, ‘To facilitate the integration of immigrants and their children, it is useful to provide them with the means to preserve their mother tongue, at least at the outset.’112 And finally, as they summed up: ‘we could say that Québec interculturalism a) institutes French as the common language of intercultural relations; b) cultivates a pluralistic orientation that is highly sensitive to the protection of rights; c) preserves the creative tension between diversity and the continuity of the French-speaking core and the social link; d) places special emphasis on integration; and e) advocates interaction.’113 The reaction of the Quebec government to the report was mixed. In a statement in the legislature on 22 May 2008, the day the report was published, Premier Charest thanked the commissioners and asserted that ‘Their report will have an effect.’ He went on, however, to put more emphasis on the ‘French core’ aspects of the report, including, for example, reinforcing ‘francization prior to the arrival of immigrants,’ and less on the accommodation-of-differences side that I have described above. None of this is surprising, as the fallout in nationalist circles on the appearance of the report was considerably less than favourable. On one particular matter – the question of secularism and neutrality of the state in matters of religion in Quebec – to which the commissioners gave some prominence, the reaction to the report at the political level was unequivocally negative. In particular, their conclusion that the crucifix in the National Assembly did not have a place in a secular state met with immediate and unanimous rejection by the legislature. Quebec government plans to emphasize ‘francization’ and malefemale equality have since been confirmed, as has the intention to require immigrants to sign a declaration including a commitment on these issues. For the rest, Premier Charest suggested that the government would act after further study, and one must presume that that study continues, as there have been few concrete results to date. I have quoted from the report at some length because it seems to me that, although the commissioners were at pains to differentiate their view of Quebec ‘interculturalism’ from the ‘multiculturalism’ of the rest of Canada, the two are essentially similar. The major difference is of course their emphasis on ‘the French-speaking core.’ This is a sub-

178

Transforming Rights

stantial matter, even if one believes, as I do, that the French language in Quebec is in a more solid, less threatened situation than it has been in the past. There is no gainsaying the belief of many Francophone Quebeckers that vigorous measures are required to keep it that way, especially in so far as it may be perceived – mistakenly, in my view – to be threatened by over-accommodation of the minority communities that were the subject of the Bouchard-Taylor study. It is also worth re-emphasizing that, in English-speaking Canada, there is no such perception, for the majority language is not at risk, and is not likely to be so, on a continent where English is overwhelmingly dominant. It therefore does not need to be protected in the way that some Quebeckers consider imperative for the French language in that province. With that exception, I would argue that the Bouchard-Taylor approach to minorities fits quite well with the multiculturalism policy that I have been describing. All these are complex issues, which are not clear-cut for many of us, but to which we must address ourselves with patience and understanding, as well as some firmness when necessary. Within these limits, I see no danger in pluralism, and probably every advantage in helping us adapt to a changing world in which increasing population movements are inevitable, and the old rules of the game are no longer applicable. As a result, and with my eyes wide open, I continue to believe that the policy of multiculturalism is solidly anchored in Canada, and will remain that way. 7 Employment Equity I have suggested above that adequate participation in the workforce is one of the most important aspects of the integration of immigrants and of effectively combating discrimination against disadvantaged sectors of society. We now need to look more closely at employment equity programs that are designed to bring this about. Over the years, most of the time of human rights commissions in this country has been spent, for obvious reasons, dealing with complaints from individual Canadians. I say ‘for obvious reasons,’ because the essence of the Canadian Human Rights Act and similar provincial statutes is to ensure that ‘all individuals should have an opportunity equal with other individuals … without being hindered by discriminatory practices.’114 At the same time, in my experience, it has become

Human Rights

179

increasingly evident that by itself this is not sufficient. As my successor as human rights commissioner, Michelle Falardeau-Ramsay, has underscored, the task of overcoming prejudice and discrimination should not be confined to remedying individual acts of unfairness after the fact … The guarantee of equal rights undergoes one of its stiffest tests when applied to the opportunities afforded all Canadians to obtain work, professional advancement and financial rewards that are commensurate with their abilities.115

What does this entail in practice? First, it means a workforce that is not dominated by any one group, where women and men, of whatever ethnic or racial origin, have an equal expectation that they can achieve a place and that all job levels are open to them if they have the capacity to fill them. It also means that disabled persons should be equally eligible, unless the legitimate requirements of a position make that impossible, or as the technical jargon puts it, unless there is a ‘bona fide occupational requirement (BFOR)’ that prevents them taking the job. Second, it means that one must look for ‘systemic discrimination,’ as well as follow an individual approach. Third, the notion that an action must be deliberate in character to be discriminatory, a traditional strain in conservative social thinking, does not stand up either. Discrimination can be largely unintentional – it is the effect that matters, not the motivation. In other words, again to use the language of specialists in this area, one must take account of ‘adverse effect discrimination’ as well as direct discrimination. Moreover, although it is obvious in some sense that one must aim ‘to deal with people as equals,’ it is also imperative to recognize that simply treating everyone in the same way does not necessarily remove inequity. To the contrary, it may require accommodating their differences. Fourth, it does not involve quotas, or ‘reverse discrimination,’ as it is sometimes called. What it does entail is working towards appropriate participation in the workforce by the groups concerned. And this in turn means that some sort of goals or targets must be set for these groups; they cannot be left to chance or to the employer’s good will. Nor can one assume that ‘education,’ that hoary old panacea, will accomplish the desired result without the need for a more dynamic program. If employment equity is to give real meaning to otherwise

180

Transforming Rights

sincere but too often vacuous pronouncements about human rights, there must be other measures, preferably set down by legislation, that are somewhat more coercive in nature. There are doubtless other criteria that enter into a well-ordered employment equity universe, but these are already sufficiently complex for many people to swallow. We should therefore look more closely at them before going any further. It would be difficult to assert that we have accomplished the first objective outlined above. We have most certainly moved far beyond the postwar world. Or the time of Canada’s centenary, in 1967, when the Royal Commission on the Status of Women was created ‘to ensure for women equal opportunities with men in all aspects of Canadian society.’116 Or yet again, more than fifteen years later when Justice Abella published her groundbreaking report on employment equity.117 The terms of reference of the latter study bring out the nature of the problem: measures taken by Canadian employers to increase the employability and productivity of women, native people, disabled persons and visible minorities have as yet not resulted in nearly enough change in employment practices which have the unintended effect of screening a disproportionate number of those persons out of opportunities for hiring and promotion.118

Nor have they, for that matter, since the adoption of the Employment Equity Act, in 1986, and its successor in 1996, a time of consolidation and advances on all fronts. We have come a long way, but it is a huge jump from that to self-congratulation. Although mistrust of the ‘systemic’ approach also remains, there has been progress here as well. In ordinary language, in common sense, individual rights have always been clearly understood, even if often ignored in practice. Group rights raise eyebrows. But in fact, especially in a country like Canada, the two are inextricably linked. Chief Justice McLachlin put the matter well when she observed that equality and the right to be free of discrimination is an individual right. Yet the denial of equality and discrimination is typically based on group characteristics. For example, the right of individual women to be treated equally readily transforms into the right of women as a group to appropriate support and protection … While it is true that group rights in the final

Human Rights

181

analysis exist only to promote the well being of individuals, it is equally true that individual rights can be fully enjoyed only through recognition of group rights.119

And what is true of women obviously applies to other groups like visible minorities and disabled persons, who are also targeted by employment equity legislation. It is a simple fact, not double-talk as some would have it, that various minority groups suffer precisely because they are members of such collectivities, and that the only effective way to resolve the problem is to approach it through the group, not through piecemeal responses to individual complaints. This in turn entails abandoning the notion that only an intended action can be discriminatory. Of course, it is easier to deal with the matter if whole groups are deliberately singled out, on the basis of colour, for example, and no one who is a member of such a group can pass the threshold of certain institutions. To our great good fortune, though less to our moral credit (considering how long it took us to deal with the problem), this type of overt discrimination is no longer common in countries like Canada. And when it does occur, it can be and is dealt with by human rights agencies across the country. What remain much more difficult to cope with are patterns of behaviour that produce unacceptable results, whatever the motivation. They may of course result from long-standing requirements that are thought to be objective but that amount to indirect discrimination. I might again cite the example of height requirements in police forces, which had no demonstrable relevance to the job in question, and which inevitably discriminated against women and certain racial minorities. These too have been chased down quite effectively in recent years, though pockets of resistance remain – for example, in the Canadian Armed Forces, where various discriminatory practices vis-à-vis women have proven difficult to eradicate. But on the whole they are seen for what they are, and dealt with as such. The more obstinate lacunae seemingly result more from laziness or ignorance, and are even more difficult to root out as a result. It is clear that only an active approach to recruitment and promotion of the target groups, who have often been routinely ignored in the past, is likely to bring positive results. On the whole, this has been recognized in principle by senior management in both the private and public sectors, but the results in practice are less impressive. So it is that an employment equity program must act on the premise

182

Transforming Rights

that chronic and substantial under-representation of these groups cannot be accidental or rooted in objective prerequisites (the BFOR I have just mentioned) or unrelated to perceived group characteristics or stereotypes. With that in mind, the program must seek to compare the presence of such groups in the population at large120 with their participation in the workforce of this or that organization – a government department, the military, a private-sector institution, for example – to determine whether the latter comes anywhere near replicating the former. And, if it does not, to establish plans to deal with the shortfall. We now have more than twenty years’ experience with this approach at the federal level in Canada. It is important to be clear that what I am talking about is not the same as what our American neighbours call ‘affirmative action.’ Justice Abella wisely suggested setting this expression aside, in favour of the term ‘employment equity,’ because it had been widely regarded as involving quotas, which, she observed, ‘In creating our own program in Canada, we may not wish to use …’ Why not? Because it is not necessary to think in terms of binding quotas, and because, to some critics, they suggest abandoning ‘merit’ as the basis for hiring. And what is the difference between ‘quotas’ and ‘targets’? Is this not just another example of linguistic legerdemain, designed by politicians and government officials to disguise an essentially unacceptable program in more suitable cloth? I do not think so, but I have to confess that it is not an easy sell. The main point, it seems to me, is this: quotas are set in such a way that they must be filled, whether or not one can turn up the requisite number of qualified individuals. Targets entail qualified people; if there are not a sufficient number, that is an acceptable reason for not hiring, even though it may mean going back to the drawing board to improve, say, the educational levels of individuals belonging to the groups in question, so that that situation will not perpetuate itself. In other words, if a job description requires an astrophysicist, and there are no members of a ‘visible minority,’ say, with the appropriate qualifications to be found at the time, one is not required to hire unqualified people. Period. What about the allegation that, if two candidates are equal, the job always goes to the female applicant or member of a racial minority? Or even if a white male is somewhat better qualified, that the competition will likely turn out that way? Obviously, no one can guarantee that these things never happen. But, as I have observed regarding language qualifications, why would any manager knowingly want to hire a less

Human Rights

183

qualified person, only to have to live with a less-than-satisfactory performance over the years? Surely even the extremes of political correctness do not lead this far, in the real world. Nevertheless, some people still go on about it, particularly in the case of jobs that require physical testing, where, they claim, a female candidate frequently gets the position although she scores less well than her male competitor. Some of this is plainly disingenuous, but on occasion it may result from the mistaken belief that certain characteristics – for example, upper body strength – can be exactly quantified in a manner that is relevant to job selection. If it were so, then this kind of measurement would obviously be important for a career like, say, firefighting, so that if one person scored 75 and another 76, the latter should be given the position. The flaw in this argument is that strength is not like arithmetic scores. Both candidates may well be qualified – that is, able to do the work competently – and a slight discrepancy in numerical scores is not pertinent, even though it can make all the difference in excluding women, as in the case of the height restrictions. It also gives a false impression of scientific precision that is neither accurate nor appropriate in the workaday world. Apart from the fact that, in the case of some successful candidates, their strength or overall physical shape may well diminish with the passing years without any effect on their careers. As to perfect equality, it has been my own experience, over many years in senior management positions, that coming across two individuals who are genuinely indistinguishable one from another in ability and experience is a very rare phenomenon indeed, and much exaggerated by those who seek to create a stink about employment equity programs. What is much more frequent, I fear, is the suggestion that so-and-so is probably all right, competent enough, but ‘would she really fit in?’ or would an advanced degree acquired in an Indian university reflect the same level of achievement as one from the University of Toronto? In the past, quietly and without anything explicit being said, the answer has been altogether too clear. And that is what employment equity programs are all about. 8 Pay Equity Pay equity is the black sheep of the human rights family. In my more than nine years at the Human Rights Commission, no other issue aroused such puzzlement, and indeed hostility, from individuals otherwise well disposed to equality rights. On one occasion, for example,

184

Transforming Rights

in discussion with the editorial board of the Ottawa Citizen, I recall Keith Spicer, the then editor and a gentleman as committed to human rights and language rights as one can imagine, taking off after me, in the full flight of eloquence that only he could muster. His target was the bureaucratic industry that was trying to foist a foolish idea on an unsuspecting public. Was this the manager peeking out from behind the sometime language rights defender? After all, pay equity always costs the employer more, and this is undoubtedly part of the problem. On the whole, I think not; he and many others are simply opposed to the idea. The question is why. To begin with, pay equity is widely misunderstood. Nowadays, of course, it is not difficult to accept the principle that women should be paid the same as men for the same work, although even this was once a revolutionary thought, since men were expected to support a family, while women worked to earn ‘pin money.’ Be that as it may, pay equity involves not just equal pay for equal work but equal pay for work of equal value. This too is not a new idea: it has been with us for more than half a century, since Convention 100 of the International Labour Organisation on Equal Remuneration was adopted in 1951. That agreement explicitly calls on all members of the ILO, including Canada, to ‘ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value.’121 But opposition dies hard, in part at least because it is not easy to explain precisely what is entailed by the concept of ‘work of equal value.’ In principle, it is not difficult to accept the idea of calculating the relative worth of various jobs. Governments and industrial enterprises, with large numbers of differently classified employees, have always done just that. And it is not exclusively ‘what the market dictates’ that determines remuneration. The monetary value of a person’s services is also determined at least in part by his or her skills, education level, experience, and capacity to deal with a physically demanding task. But one also finds that, all too often, the worth of an individual’s occupation is skewed in the direction of work done by men, as against ‘women’s work.’ Hence the frequently cited example of persons who look after animals being paid more than those who look after children – zookeepers being better paid than nannies. Many people can agree with this reasoning in the more egregious cases of this kind that pay-equity advocates tend to produce. But as a generalized operational procedure, they are more than a little sceptical. In other words, they believe that the pay-equity industry simply goes

Human Rights

185

too far with its comparisons. To take another example, not too long ago one commentator suggested that the pay-equity fanatics were now trying to compare sailors and secretaries. How absurd can one get? How can there be any basis of comparison between a tough, demanding job and a quiet office environment? In fact, it turned out that it was secretaries and deckhands who were being compared. Even so, some will respond, where is the basis for any comparison? It goes against common sense. But does it in fact? After all, a deckhand is the equivalent of a labourer who works on a ship. His working conditions are of course physically more difficult than those of a secretary, for which he gets more credit; equally, the secretary may have higher educational qualifications, for which she would get more points. In other words, it is perfectly possible to compare two jobs in an objective manner and come up with a valid assessment of what should be appropriate compensation for each without simply assuming that one rates more than the other (usually the male-dominated class), or that ‘the market’ so dictates. But, rational or not, the moment one starts to talk about ‘men’s jobs’ and ‘women’s jobs,’ and the relative weight that is almost unconsciously attached to the one versus the other, some people’s noses are inevitably out of joint. That is at least part of the problem. For the rest, it has not helped that an army of sociologists, statisticians, lawyers, and workforce experts of every sort imaginable have descended on the issue. Because it is almost axiomatic that those involved in this kind of enterprise will complicate it to an extent impenetrable to the layman, there has grown up an air of mystery around pay equity negotiations that has soured the whole affair. Added to this is the fact that Canadian law provides that parity cannot be achieved by lowering wages, which in the long run almost certainly makes for sizable settlements, especially when employers choose to fight them through the courts, thereby creating large retroactive payouts if they lose. Despite all these complications, it does not strike me as unreasonable that we should acknowledge that, whether they ought to or not, people still tend unthinkingly to establish models of women’s and men’s work. In due time, I have no doubt that the problem will resolve itself, as women crack through the barriers that stand in the way of their full access to all areas of the workforce, at all levels of seniority. Meanwhile, however, we also must accept that equitable pay should not have to await that day, and that we should endeavour to achieve a regime in which all work will be properly valued in terms of compensation.

186

Transforming Rights

We should, I think, also consider whether questions relating to remuneration would perhaps be better dealt with elsewhere than under human rights legislation. It is true that unions have not always been staunch defenders of their female members’ rights, and this may be part of the reason why these matters have not been left to the bargaining table. Nevertheless, pay equity concerns are probably too intimately related to labour-management deliberations, in the broadest sense of that term, to be amenable to the commission-tribunal-court approach that appears inevitable under the present model. As a result, governments and the private sector should probably take another look at the possibilities for proceeding more effectively than has been the case to date, preferably at the same time reducing the level of semantic and statistical mystification that has bedevilled the whole exercise in the past. 9 Aboriginal Rights I come now to an examination of Aboriginal issues, without a doubt Canada’s most shameful human-rights-discrimination problem. We might observe to begin with that, while there are multiple aspects to Canada’s relationship with its Aboriginal peoples, there are perhaps two enduring messages that are worth singling out. In the month of October 1763, King George III issued a Royal Proclamation concerning his North American territories. Among many other subjects, he dealt with the treatment of the Native peoples, and, as he put it, the ‘great Frauds and Abuses [that] have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests and to the great Dissatisfaction of the said Indians.’ Not far short of two hundred and fifty years later, the two principal United Nations committees charged with the implementation of the U.N. Bill of Rights122 also condemned Canada in severe terms for its record vis-à-vis Native rights. Such has been the unhappy, centuries-long story of our relationship with the Aboriginal peoples, combined with conditions of life in which many of them live that are a distressing stain on Canada’s human rights record. A second persistent theme that should give us pause in our reflections on the history of Canada’s Aboriginal peoples, and their future among us, is their extraordinary staying power. Though they were once thought to be on the verge of assimilation, if not of dying out pure and simple, their birth rate and the proportion of younger people in their population now surpass those of majority Canadians. What this may

Human Rights

187

mean for the future, especially when combined with their movement to the cities, is difficult to foresee, to say the least. One thing is certain, however: as the late Chief Justice Lamer has expressed it, ‘Let us face it, we are all here to stay.’123 Trying to evade the problem, or stalling negotiations in the hope that it will go away, are therefore not plausible ways to proceed. In my time at the Canadian Human Rights Commission, the issue that we took up most vigorously, indeed passionately, was the situation of the Native peoples. As we persistently argued, they represented the major human rights failure in this country. Not that we were without fault in other areas, but their plight was of a different order of magnitude. At the bottom of every positive scale, at the top of every negative one, living, many of them, in appalling circumstances, plagued with depressing records of incarceration,124 gas sniffing, family violence, and suicide, to cite only a few obvious examples. How could this be happening in a country like Canada, in the midst of relative prosperity and acceptance of minorities, while the non-Native population managed to ignore it? In the past, one reason was that most of us, living in southern Canada, had probably never met an Aboriginal person, dwelling as they did on reserves and often in the north. And those who had, in western Canadian cities, for example, were inclined to dismiss them as shiftless and unreliable. Their present situation remains not far different: they make the headlines for a few days or weeks – in Davis Inlet or Kashechewan – when there is a tainted water crisis or television carries pictures of dwellings in an unbelievable state of disrepair or of infants and children living in Third World conditions. And then people go on about their business – until the next time. In those circumstances, it was hardly surprising that the wish should have been father to the thought that Native society would likely assimilate or indeed disappear. But we failed entirely to reckon with the fact that they were here to stay – and to stay on their terms, not melded into the general population – with all question of disappearance refuted by the expanding birth rate. Whatever the merits of the federal government’s 1969 White Paper might have been, it was rejected, plain and simple, by Aboriginal leaders, and that, we must assume, is that. This is not the place for lengthy historical analysis, but let us shift back in time for a moment to the beginnings of the relationship. It is widely believed that Aboriginal peoples were valuable allies to white settlers in the early days, and that was indeed so. But it was also the case that

188

Transforming Rights

‘the core assumption of the colonizer ideology’ was the ‘inherent inferiority of Aboriginal peoples as peoples.’125 With the expansion of the white population, particularly in the nineteenth century, this was the excuse for a mixture of unalloyed land grabs, discriminatory practices, and misplaced Christian charity. Thus, on the one hand, their gradual confinement to ‘reserves,’ which went from all those vast lands not occupied by agreement with Aboriginal leadership to a few hundred, often uneconomic enclaves; and on the other, attempts to ‘civilize’ them through residential school programs and other wrongheaded paternalistic enterprises. And all of this was topped off in the latter part of the nineteenth century by the Indian Act – an extreme example of colonial legislation if there ever was one – which gave each ‘status Indian’ (itself an ominous term) a number, and the Indian agents licence to set whatever rules they pleased. And so the sad history rolled on, through peace and war, with even Native veterans, as late as the mid-twentieth century, unable to receive a fair deal from the powerful majority that had long since ceased to need their collaboration. And made more difficult by the growing move to the cities,126 a development that enormously complicates the task of reconstructing a healthy and sustainable Aboriginal community. Although it is certainly no justification for Canadian practice, it is also worth noting that the problem of indigenous peoples is a widespread international phenomenon. Almost without exception, the world’s Aboriginal peoples are treated with little better than contempt – for their way of seeing things, their needs, and their ambitions. And after sixty-plus years of human rights endeavours at the United Nations, and lengthy negotiations regarding a ‘declaration’ of indigenous rights, the vote on the charter of their entitlements found Canada in opposition, in extremely limited company,127 and on singularly flimsy grounds. Subsequently, in April 2008, a motion was approved in the House of Commons that ‘the government endorse the United Nations Declaration on the Rights of Indigenous Peoples as adopted by the United Nations General Assembly on 13 September 2007 and that Parliament and [the] Government of Canada fully implement the standards contained therein.’ Thus far, however, there appears to have been no reaction from the government and no progress towards reversing Canada’s unacceptable stand on the U.N. Declaration. If this is a not unreasonable sketch of the problem, what is far more difficult to discern is some notion of the solution. Even in a country like this one, where at last our political leaders seem to have awakened to

Human Rights

189

its magnitude and seriousness, and where, I believe, there is a genuine desire to do something about it, the way out is not evident. Throwing money at it is clearly not the answer; if it were, we would be home and dry. Nor, it appears, are traditional Canadian approaches to human rights problems. Compared with this one, other rights issues are relatively simple, both the principles involved and practical questions of implementation. Others more knowledgeable than I have tried over and over again – with a few steps forward, be it said, but on the whole without getting to the bottom of the problem; and I certainly do not pretend to be able to do better. There are, however, a couple of observations that might be worth setting down, in the hope of pointing towards a constructive path. First, we need a larger element of candour in our approach, vis-àvis both Aboriginal and majority Canadians. To illustrate, much is said about self-determination and self-governance, and at the same time about the fiduciary relationship between the crown and the Aboriginal peoples. But how is this to work out in practice? For example, how can a fiduciary relationship be compatible in everyday practice with agreements between equals, with self-determination, self-government, and Aboriginal sovereignty? Especially if, as conceived by Chief Justice McLachlin,128 a fiduciary relationship is one in which ‘The vulnerable party is in the power of the party possessing the power or discretion who is in turn obligated to exercise that power or discretion solely for the benefit of the vulnerable party.’129 A further problem right off the top is that ‘there is generally no accepted definition of what constitutes self-government in the context of aboriginal communities.’130 The federal government accepts at least local self-government, and such responsibilities clearly may be altered and greatly extended by further agreements, such as, for example, the Nisga’a accord or even more obviously the arrangements for selfgovernment in Nunavut. Nevertheless, what we have achieved so far remains a patchwork quilt, and there still appears to be considerable uncertainty as to how to bring about ‘the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown.’131 Looked at from another perspective, if we as a society have erected a welfare culture, how can it be undone? How can the state or the Aboriginal people deal with economically unviable reserves over the long term, if the inhabitants cannot be moved or do not wish to be? How can a community have responsibility for its affairs, indeed self-government,

190

Transforming Rights

if someone else settles the bill? For example, with regard to housing, if someone else paid for it and someone else is financially responsible, how can there be a satisfactory situation as far as quality and maintenance are concerned? Or if a community cannot raise its own taxes, how can it act in its own interest, independently? More generally, how can self-government be compatible with total financial dependence on the federal and provincial authorities – for example, where there is major funding from the Department of Indian Affairs or from the civic or provincial authorities, or from employment in areas where virtually everyone who has a job is working, one way or another, for the government? It is important to recall, moreover, that we are talking about government budgets that must be regularly voted, with the political cost that this entails, rather than a one-off payment in compensation for appropriating – or stealing, to put it more plainly – Aboriginal lands. Viewed in a larger frame, there is to my mind a greater element of forthrightness in a work like Alan Cairns’s brilliant Citizens Plus than in much of the overwhelmingly intricate literature that I have been able to look through elsewhere. ‘Citizens’ is clear enough. By ‘Plus,’ he writes that what he has in mind are ‘ongoing entitlements, some of which flowed from existing treaties, while others were to be worked out in the political processes of the future, which would identify the Indian peoples as deserving possessors of an additional category of rights based on historical priority.’132 More particularly, his emphasis on the need to get away from a nation-to-nation model as the only or at least the driving theme seems to me no more than plain common sense, if Canadians are to emerge from a sterile and unending debate about the ‘big picture’ of the Charlottetown era, to the detriment of actually making progress on the ground with Aboriginal welfare and sound Aboriginal–non-Aboriginal relations. I also share his sense that the report of the Royal Commission on Aboriginal Peoples (RCAP) itself, after all the major study of Aboriginal affairs, was ill-advised in its overriding emphasis on the ‘nation’ approach, although not his apparent belief that it was ‘disturbing and astonishing‘133 that governments essentially did not respond to the report. Disturbing it may have been, but hardly astonishing, given its length and huge number of recommendations, such that, to quote Cairns himself, ‘I have not yet met anyone, other than Commission members, who has read it from cover to distant back cover.’134 Although the situations are very different, conceptually and in prac-

Human Rights

191

tice, for me there is one bedrock reality: I do not consider that the only valid answer for the Aboriginal peoples is a form of separate sovereignty, any more than I accept that separatism is the solution for Quebec. Hence the appeal of Citizens Plus, although even in that context, I think we should get on with the problems at hand – land claims, for example, or appalling living conditions, or lack of participation and adequate education, as I have suggested – and leave more complex issues relating to what the ‘plus’ rights would eventually involve to be worked out as we go along. As a result, to return to one of my original observations, I believe that the main consideration for getting started, or restarted, is to accept that immensely complicated global solutions are not likely to fit the bill. The report of the RCAP contains no less than 440 recommendations covering 115 pages of text, on everything from fundamental constitutional change to administrative details, including, by my rough count, the creation of more than a dozen and a half new institutions, boards, councils, and the like. Each of which comes with a price tag, to be picked up by the taxpayer. In the circumstances, it is not surprising that, whatever the proposals’ substantive merits, no government was or is likely in the future to pick up the challenge of actually implementing all or even most of them. We are not liable, either, to see a revival of the comprehensive Charlottetown approach to constitutional change, especially as it would almost certainly require referenda in various provinces and at the national level. Which leads to my second observation: keep it simple. The European Union may seem far removed from what I have been discussing, but there is no doubt in my mind that part of the reason for the failure of their proposed constitution to pass the test of referenda in France and the Netherlands in 2005, and in Ireland in 2008 with respect to the socalled ‘simplified treaty,’ was the complexity of the issues; misunderstandings, deliberate or otherwise, over what they were all about; and the political whirlwind they stirred up domestically. So it was as well with the Charlottetown accord and, unfortunately I believe, is likely to be with any set of recommendations so complex as to be impenetrable to many Canadians, including the bundle put forward by RCAP. In this state of affairs, the trick is to try to do what is doable, and leave the big picture until later. Even at that, the public authorities and the Aboriginal leadership have their work cut out for them. An example is the deeply disturbing record of Aboriginal residential schools, a matter of shame and embarrassment in Canada for many years. After agoniz-

192

Transforming Rights

ingly slow consideration and reconsideration, agreement was eventually reached under the guidance of former Supreme Court Justice Frank Iacobucci on a large financial settlement, and the creation of a ‘Truth and Reconciliation Commission.’ Perhaps the most symbolically significant of all was a formal apology in the House of Commons, with the participation of Aboriginal leaders, in which Prime Minister Harper stated, ‘we recognize that this policy of assimilation was wrong, has caused great harm, and has no place in our country … We apologize for failing to protect you.’135 The resignation of the chairman of the Truth and Reconciliation Commission, Justice Harry Laforme, in the autumn of 2008, was a severe blow, as was the internal dissension that apparently brought it about, in spite of efforts to end the dispute. The principal concern now must be to get it back on the rails, with whatever new commissioners may be required. As the Globe and Mail has remarked editorially, ‘The commission is too important to bungle.’136 As a second illustration, it has also been clear for many years that the Canadian Human Rights Act needed to be cleaned up, by removing section 67, which excluded action under that act regarding anything done under the authority of the Indian Act. The result would be to put Aboriginal peoples on a par with other Canadians with respect to their rights, especially women’s rights, a situation that most observers would welcome. However, objections were put forward over the years by the chiefs (or some of them) that they were not being sufficiently consulted or that the individualistic approach of the act conflicted with their traditional collectivist view. On the other hand, there was strong support from others, particularly Aboriginal women’s groups. The upshot of all this was thirty-odd years of debate without result, until finally, in June 2008, section 67 was repealed, thereby holding out hope that other relatively straightforward things may be achievable, to everyone’s advantage. Of course, none of this affects the profoundly more complex problems of governance, and the financial and political issues that accompany them. However, such measures are a start, indeed more than a start, in pointing Canada on the right track for the future. In so doing, we must nevertheless realize that, although Aboriginal communities unquestionably occupy a special place in Canada, it would be no wiser here than elsewhere to make exceptions on matters of fundamental rights on grounds of cultural differences. As the Review Panel put it, ‘the Act must reflect truly universal values that

Human Rights

193

have been accepted internationally … all Canadians, Aboriginal and non-Aboriginal alike, have a right to equality without discrimination.’137 I believe that the government has little choice but to go ahead on this basis, with further consultation as necessary, but without using the importance of a continuing dialogue as an excuse for doing nothing, and without further, far-reaching exploits in uncharted constitutional territory. The Indian Act has been singled out as well on many occasions (not least by the Canadian Human Rights Commission) as an outmoded approach to relations with Canada’s Aboriginal communities that should be substantially altered or simply done away with. For the foreseeable future, this is probably beyond the capacities (or at least the priorities) of government, although the abolition of section 67 of the act was a good start. In the circumstances, where rights are concerned, following the Charter and the Canadian Human Rights Act, as the courts and commission have been doing, is doubtless the best course of action, with governments and Aboriginal representatives onside so far as possible, both with respect to the principles and the actions necessary to implement changes as they become more practicable. Accelerated priority for issues like ‘specific land claims,’ about which discussion-negotiation has been going on for years, is crucial as well. Recent legislation138 that modifies the current specific claims process by establishing a tribunal composed of superior court judges with authority to make binding decisions on the validity of claims and compensation awards is a welcome development from the player-referee role that the government authorities have played in the past. Participation by Aboriginal peoples in contemporary Canadian society, both as individuals and as communities, is also of elemental significance in moving away from an archaic, colonialist attitude to Native–non-Native relations. Employment equity as a program has been uneven in its successes and failures, but in the case of Native people, undoubtedly leaning more heavily towards the negative side of the ledger. It is essential that this situation be reversed, and that Aboriginal individuals, particularly those who have migrated to the cities, play a much fuller part in Canadian life. This may mean even more forceful targeting and recruiting, even to the extent of envisaging quotas, about which I have expressed serious doubts elsewhere. This is a special state of affairs that demands aggressive action, in both the public and private sectors. It also seems to me to entail adaptation to some degree on the part of Native people to work habits that are prevalent in the rest of

194

Transforming Rights

society. This does not necessarily entail abandoning all their long-cherished ways of looking at life or perceiving reality. But it does mean an element of compromise on both sides. Participation also depends in large measure on education, where current figures for the Aboriginal population are discouraging.139 According to one observer, An important measure of the advances made by any Aboriginal community is employment at good wages, and the key to good wages is formal education … The link between employment and formal education has become stronger in recent decades: there are few jobs available for those without at least a high school graduation certificate, and such jobs as exist offer low wages.140

Elsewhere in this essay I may have sounded sceptical about ‘education’ as too long-term and therefore an excuse for lack of action. But in this case, education is action; education to help the Aboriginal minority pull itself up by its bootstraps is paramount. Such education must transmit Aboriginal culture, but must also involve ‘mastery of the basic academic skills and knowledge necessary for participation in an industrial society.’141 The Kelowna accord may have been both a recognition of past failures and a start in the right direction, but it is unclear, given the present federal government’s failure to pursue that agreement, where we may now be headed. In any event, I think it will be a very long time before the lengthy list of proposals put forward by the Royal Commission – some forty-four recommendations on education alone, several with half a dozen or so sub-recommendations – can be brought to fruition I must emphasize that I have not been talking here about ‘educating’ the majority to see new ways of looking at rights. At the same time, we do also have to look to education regarding Aboriginal questions for the majority. The more people know about something the more likely they are to be sympathetic, or so we must hope. But I repeat: this must not be used as an excuse for putting off action while waiting for everyone to get up to speed. The justice system, for many Aboriginal people, is a nightmare. As former Ontario Chief Justice McMurtry put it in a recent publication, there is ‘a widespread lack of trust in our justice system in Aboriginal communities.’ The reasons were put to him in stark terms by Aboriginal leaders:

Human Rights

195

When Aboriginal people go to court, they expect to lose because they have been arrested by a White police officer, they are prosecuted by a White Crown attorney, and they are tried by a White judge and usually a White jury. In jail, they are supervised by White guards.142

The answer to the problem is not a separate justice system but the need to ensure that Aboriginal people caught up in judicial proceedings ‘see more faces like their own in the court rooms,’ and that more sentencing circles and legal aid clinics are available. This is only part of the solution, for broader political and social issues are involved, but it returns us to the point I have been making about the importance of Aboriginal participation if Canada is to see their communities emerge from isolated marginalization. Finally, there is the question of monitoring progress in these and other areas. No doubt it can be seen as a throwback to my old responsibilities, but I believe this process could be helped along by the appointment of an ombudsman for Aboriginal affairs: a person responsible to Parliament, on the model of the commissioner of official languages, who could report on the status of various projects and negotiations and attempt to chivvy governments when a push is needed. The Royal Commission makes a similar proposal,143 but although it refers to the language commissioner model, it once again complicates the matter by suggesting a commission with up to three members to assist a chief commissioner. I think it can and should be kept simpler than that. One might well ask why these responsibilities could not be given to the existing Human Rights Commission. The answer, I think, is simple: the commission already has enough on its plate, and this is a very special concern that requires full-time attention. For this reason, I think I might also part company with the Royal Commission on another matter: they are of the view that such an ombudsman or commissioner should not take individual complaints. In the light of my own experience, I rather believe that it could be a mistake to divorce monitoring from the traditional complaints-taking function. This, however, is a detail and could be decided either way. The important point is for the government to accept, however much it may be leery of setting up another body that could criticize its actions (or more to the point, its failure to act), the necessity of an independent agency to ride herd on all the players involved in this most vital dossier. My observations in this section are intended to be no more than that: a few guideposts to some fairly simple, straightforward actions that can

196

Transforming Rights

be undertaken as a complement to ongoing negotiations on vital issues like ‘specific claims’ and other land and treaty issues, actions that are neither so far-reaching as to be unrealistic nor so insignificant as not to be worth the effort. We know that the problem is acutely difficult and deeply rooted in our history. We should also know by now that exchanging high-flown words is not enough. We need to pick up the momentum on a program whose realization is excruciatingly sluggish, and where failure can only be deeply harmful to Canada’s Aboriginal people, and therefore to the political and moral well-being of Canada as a whole.144

PART FOUR Human Rights and International Relations

It may appear odd in a study of language and human rights in Canada to change the focus to the international arena, though it is perhaps understandable for someone with my foreign affairs background. In fact, there are better reasons than that. In the first place, much of our Canadian human rights law and practice finds its origins in international declarations and covenants, to which Canadians have contributed substantially. A further reason is simply that sound international standards and effective machinery for observing and checking on their implementation can only improve the chances for human rights on the domestic scene as well. Moreover, the whole process of global rule making, including the establishment of international human rights norms and monitoring bodies, is intimately tied up with our own experience. Even though they are often not executory, and do not come with enforcement mechanisms, they nevertheless represent the world community’s best effort to establish a form of international legitimacy for standards that would be tantamount to legal requirements in the domestic context. Terminology A number of people have observed to me that there is persistent confusion about what is involved in the numerous covenants and protocols, and who does what in the various commissions, committees, and agencies that are involved in human rights at the United Nations. As a result, it will be worthwhile at the outset to work our way out of the terminology maze. First, it is important to differentiate between the Commission on

198

Transforming Rights

Human Rights, recently renamed the Human Rights Council, and the Human Rights Committee. The former, the Human Rights Council, is an intergovernmental body, with states as members; the latter, the Human Rights Committee, is a group of experts sitting in their individual capacities. Both are elected bodies, the council chosen by the General Assembly, and the committee by the states that are parties to the International Covenant on Civil and Political Rights (also referred to hereafter as the Human Rights Covenant or simply the Covenant). There are now several related committees,1 responsible in each case for monitoring one of the U.N. human rights covenants or treaties. They are known collectively as the ‘treaty bodies.’ A number of U.N. covenants also have attached to them treaties described as ‘optional protocols,’ which usually provide for the filing of complaints by individuals against their own national authorities. They have as a rule been established separately, because not infrequently states will become parties to the main treaty while being unwilling to sign on to a complaints procedure that could be directed against them. Such is the case, for example, with the Covenant on Civil and Political Rights to which certain countries, including the United States, are parties without having agreed to the Optional Protocol. Canada became a party to both in 1976. The Human Rights Covenant, it should be noted, also has a Second Optional Protocol, concerning the abolition of the death penalty, which has also not been signed by various countries, including the United States. Canada acceded to the Second Optional Protocol in 2005. Lastly, it will be observed that I refer at times to the human rights ‘covenants’ and at others to the human rights ‘treaties.’ The reason is simple enough: the covenants are international, multilateral treaties; and it is reasonable as a result to use the two words more or less as synonyms, even if purists might object on occasion. 1 International Human Rights Machinery As I have just indicated, the main intergovernmental body involved with the implementation of the United Nation’s human rights mandate over the past sixty-odd years has been the U.N. Human Rights Commission, now transformed into the Human Rights Council. The commission was established in the early days of the United Nations as an independent body consisting of representatives of countries elected by the Economic and Social Council serving three-year

Human Rights and International Relations

199

terms.2 It met in Geneva for six weeks each year, in a huge gathering of fifty-three member-state delegations, a large number of observer-state delegations, the representatives of various U.N. bodies (for example, UNESCO, the WHO, and others), and NGOs of all stripes too numerous to mention. It had a mandate to adopt resolutions on international human rights issues and specific country situations; to appoint special rapporteurs, both country-specific and ‘thematic’ – for example, on torture or racial discrimination; and to draft and approve declarations and conventions in the human rights field. Its strong point lay in the area of developing standards and norms regarding human rights and their implementation in the U.N. context. However, it was also a forum in which member governments could engage in public debate (indeed dispute), and make pronouncements about the human rights situation in other countries, and was considered by many an instrument of foreign policy. Countries with poor human rights records were unhappy, to say the least, about being singled out at the commission. As a result, they lobbied to keep their countries out of other countries’ speeches, and even more to avoid unfavourable votes on condemnatory resolutions. Over the years, it became fashionable to attack the commission for all manner of sins: stacked with bad actors; designed more to obscure than to identify and condemn human rights violators, so the accusations ran. Everyone from the U.N. secretary general to the U.S. State Department (and it is rare that they agree about anything) was after its hide. A culminating issue, if not the final straw, was the election of the Libyan representative to chair the 2003 session – Western observers were predictably outraged, and went after the commission with renewed vigour. For many years it had been perfectly obvious that it was an unproductive talk shop. Nevertheless, over its almost sixty-year history, its parent body saw fit to expand its membership no less than four times, from eighteen to fifty-three, not normally a sign of disapproval. Thus, it is perhaps not overly cynical to ask whether it could really be that foreign ministries around the world had finally lost their illusions Whatever the answer, it does not strike me that the latest prescription for returning it to good health is likely to succeed. After lengthy discussion, a number of proposals were produced, by a panel of ‘eminent persons,’ by the secretary general himself, and by various states and other commentators, involving everything from vastly reduced membership to a body comprising all members of the United Nations. A compro-

200

Transforming Rights

mise resolution was finally adopted by the General Assembly in March 2006, with only four states in opposition.3 The new council comprises forty-seven members and is to be elected directly by majority vote of the U.N. General Assembly. Its composition is still based on regional representation, but with reduced membership from Western and Latin American states and Africa, and with Asian and East European representation slightly increased.4 A major element of the new regime – and paradoxically, perhaps even more radical – was the decision that members of the new council ‘shall uphold the highest standards in the promotion and protection of human rights,’ and would be subject to periodic review. Well and good. How could one quarrel with that? But who is to decide what the highest standards are? And who is to determine who meets them? For example, it is difficult to think of a single Middle Eastern country that does not have human rights problems. Sub-Saharan Africa is hardly any better. And what about the United States, the leading critic of the old commission? Many states would say (if they dared) that, with Guantanamo, Abu Ghraib, and dubious domestic security measures on its hands, the United States also fails to abide by the highest human rights standards. If it is supposed to be the General Assembly that decides on standards (it is after all the body that votes on membership), and especially since regional allocation of seats continues, I fail to see that very much other than numbers has been changed. And if it is not the General Assembly or the council itself, then where is an objective, neutral body to be found? Frankly, I think someone is building castles in the air As to the matter of periodic reviews of states’ human rights records, there is also some concern that the new scheme envisaged for the council may duplicate or even conflict with existing monitoring procedures – for example, those employed by the treaty bodies. There are many observers who believe that there are already too many monitoring agencies bustling about, bumping into one another, without adding yet another. For the moment, consultations and discussions continue, and we shall have to see whether a coherent, effective design can be developed. Otherwise, as a component of genuine relevance to the protection of human rights, the structure could simply collapse under its own weight. In no small measure, an almost total lack of understanding of the U.N. situation on the part of many Western commentators has done much to contribute to oversimplified Manichaean distinctions. The

Human Rights and International Relations

201

affair of the election of the Libyan representative is a good illustration. It was, first of all, the Africans’ ‘turn’ at the chairmanship, and the Libyan was chosen by the African group for their own reasons, which would not necessarily coincide with the Western perspective. Second, though I never saw this aspect mentioned in the Canadian or American media, I believe the Libyan ambassador did a respectable job, and she was the first Muslim woman ever to have held such a position. (I would have thought this in itself might have counted for something on the human rights front.) And for that matter, although freedom of speech is hardly the Libyans’ strong point, with respect to other human rights-related issues like education and health care, they are thought to be more advanced than other states in the region. In any event, criticism of the new council was not long in coming. The first election, in May 2006, produced a number of the same ‘bad actors’ that critics had been after all along, and there has been widespread concurrence that the early sessions were not a success. In the opinion of Amnesty International, for example, there were ‘too many vestiges of practices that were responsible for discrediting the commission on Human Rights.’5 Indeed, Human Rights Watch went so far as to observe that, ‘Seven months after the United Nations General Assembly created a Human Rights Council to replace the much-maligned Commission on Human Rights, the new Council already has garnered a level of condemnation that its predecessor took decades to achieve.’6 Or as one very thoughtful and experienced observer put it to me, ‘I have to admit that after two Council sessions and two special sessions, I have little hope that the Council will much improve human rights protection.’ The point that seems difficult to grasp in our part of the world is that the United Nations is not a Western fiefdom. It encompasses more than 190 states, each going its own way. The commission, now the council, is a ‘political body, [and] it should surprise no one, regrettable as this may be, that it tends to politicize the issues before it’; and, further, it ‘can do no more than the states comprising it want it to do.’7 The West cannot dictate to its members, and until it recognizes this reality human rights bodies will always have problems. Most certainly, violators should be pursued vigorously, but as long as the great powers set their own rules for themselves and their protégés, the level of hypocrisy and cynicism is likely to remain high. Does that mean that nothing can be done about the council? Not at all, but I do not think that the solution lies in facile juggling of mem-

202

Transforming Rights

bership numbers or in unenforceable ‘standards.’ More realistically, states could, however, try to give a little less currency to trading of their support for candidates for reciprocal favours in other areas, and try to ensure that their own records are clean. From there forward, they will need to accept fully that fine pronouncements before their national legislatures or at the opening session of the U.N. General Assembly each year are not enough. At the very least, those states that have a real interest in advancing the cause of human rights should come together through their regional groupings, together with others of the same mind in other groups, to try to forge an alliance for rights, so to speak, that might muster a dozen or a dozen and a half members of the council who could push for genuine day-today reforms. I certainly do not think I am any more unrealistic than the rest of the throng of onlookers who follow developments at the United Nations, but if that observation is thought to be just as naïve as other ideas that I myself have been criticizing, then so be it. In any event, one should never forget that even the council as it stands is likely to contribute to putting human rights further to the forefront in the public mind, and at a cost that is as nothing compared with the military machines that are favoured as problem-solving mechanisms in other places. 2 The High Commissioner for Human Rights One of the more recent components of the human rights machinery of the United Nations is the Office of the High Commissioner for Human Rights. The creation of this office had been discussed within the United Nations for many years, but it was not until the 1993 World Conference on Human Rights in Vienna that consensus was achieved. Louise Arbour, who sat on the Supreme Court of Canada, was appointed high commissioner in 2004. As is not uncommon with individuals named to such positions at the United Nations, she eventually ran afoul of certain countries, including the United States, and, in spite of the fact that she had done a commendable job, she decided not to run for a second term. Although she was the fourth incumbent, it is fair to say that the high commissioner’s role is still in the process of being defined. The creation of the position was intended to symbolize the importance the United Nations gives to human rights, but in my view it has not yet attained the stature of other positions of a similar nature, such as the high commissioner for refugees. Like the United Nations as a whole, the commissioner’s office faces serious financial problems: it is

Human Rights and International Relations

203

under-resourced and understaffed. Over the years it has also suffered from administrative problems. And high commissioners have found themselves trapped between the exigencies of flying the human rights flag in various corners of the world and at the same time trying to run a sizable operation with less than adequate support. I wish the new high commissioner, Navanethem Pillay, good luck in trying to keep all these balls in the air at once. 3 Regional Human Rights Machinery It was never intended that the creation of the United Nations should preclude regional organizations. On the contrary, article 52 of the U.N. Charter specifically envisaged the existence of regional multilateral organizations, stating that such arrangements ‘must be consistent with the purposes and principles of the United Nations.’ The idea was that they could be less cumbersome than the United Nations and more sensitive to regional needs, and therefore more effective in dealing with human rights violations in a given area. This approach has met with mixed success. The European Human Rights Court, for example, has often been more effective than its U.N. equivalents. This is usually put down to the fact that the European Convention is a part of domestic law in most of the participating countries. And further, that members of the Council of Europe are a more cohesive group than huge U.N. bodies could ever be. In any event, its cases, and the reasoning that goes into deciding them, have often seemed to me more straightforward than some of those within the Human Rights Committee’s sphere of interest. The Organization of American States has a similar mechanism, with the Inter-American Commission and Human Rights Court dealing with complaints under the American Convention on Human Rights. Canada, it should be noted as an aside, has yet to ratify the American Convention, and has been criticized on that account. As far as I am aware, the principal reason relates to concerns on the part of both the federal government and the provinces about some of its provisions. One of the main difficulties is that it guarantees the right to life ‘in general from the moment of conception’; this could of course raise the abortion problem, even if Canada were to make a reservation on the point. Apparently there are other issues as well, for example, in connection with affirmative action (which the Convention does not contemplate) that continue to trouble both the federal and provincial governments. Discussions

204

Transforming Rights

between the two levels of government are continuing, with a view to dealing with these and other matters that could otherwise entail Canada making an excessive number of reservations, a procedure that is frowned on in treaty-making circles. The African Commission on Human and Peoples’ Rights interprets and applies the African Convention. For some time, it did not have a court structure, but the institution took a step forward when the 1998 Protocol to the African Charter on Human and Peoples’ Rights, which establishes an African court, entered into force. Nevertheless, many African human rights observers still consider it to be ineffective. 4 The Human Rights Covenants and the Treaty Bodies8 The implementation of the Human Rights Covenants is monitored by a series of ‘treaty bodies’: committees of experts that receive and respond to country reports under the various treaties. The Human Rights Committee also deals with complaints, under an Optional Protocol; and it issues authoritative interpretations of various articles of the covenants, known as ‘General Comments.’ While support from one’s government is essential in order to get elected, and while geographic distribution is supposed to be taken into account,9 the experts themselves serve in their personal capacities. The treaty bodies are in trouble, and have been for years. They are understaffed, under-resourced, and backlogged beyond belief. The question is what to do about it, and there has been a long-running effort at ‘treaty body reform’ designed to come up with solutions. Thus far, success has eluded the reformers, in part as a result of over-ambitious projects that few decision makers are really prepared to accept. For example, in a report prepared for the secretary general, Philip Alston10 floated the notion that governments should ‘ensure popular participation’ in the preparation of country reports or that there should be a ‘national debate’ on their contents, or consideration in national legislatures. This is simply not realistic, even in countries like Canada where human rights issues are taken very seriously; and proposals of this kind can only lead to impatience on the part of observers outside the treaty bodies community. Or again, his idea that the ‘Treaty Bodies’ principal role would be to monitor the domestic monitors’ is likewise no more than speculative musing. It is highly unlikely that any state party would accept any such role for them. What they do attempt to do is to check up on what governments claim is going on and to report

Human Rights and International Relations

205

the facts as they see them; that is a different matter, though no less important. There are also somewhat more up-to-date analyses, among them a study prepared in 2001 by Anne Bayevsky.11 It is just as elaborate and even longer, including no less than 228 recommendations. As far as I am aware, it has elicited no substantive response from either the High Commissioner’s Office or overworked foreign ministries. In other words, one would do well to avoid sweeping proposals in commenting on this subject and in weighing a possible Canadian role. They may well be superficially attractive, but they are probably doomed to waste the time of those whose responsibility it is to put such matters before governments. This does not mean that a creative approach should be cast aside. It is intended rather to suggest that a persistent search for practicable solutions – not vain hopes of substantially increased funding and personnel or far-fetched schemes for reorganization – is the only realistic option. Indeed, unless something is done, it is hard to see how the system can fail to slow down to a point where no one but the members takes the treaty bodies’ activities seriously. One assessment, for example, adopts the gloomy line that ‘The reality is that the treaty bodies are becoming more and more peripheral to the UN system …’12 and, even worse, that they remain ‘splendidly isolated and disconnected from the mainstream activity relating to human rights around the world.’13 A very experienced member of the secretariat has observed, along the same lines, that ‘If the treaty bodies do not radically alter their decisionmaking mechanism and streamline their procedures in the near future, they will run up backlogs of such proportions that their activities may well become irrelevant to states parties.’14 In the circumstances, there is little choice but to aim for the stars with one’s feet firmly planted on the ground. This should involve, at a minimum, streamlining reporting to the various committees, and eliminating duplication, both on matters like racial and sex discrimination, child labour, or torture, for example, and on structural problems like the independence of the judiciary or unfair elections, which are repeatedly dealt with from not dissimilar angles in different treaty bodies’ examination of state reports. Within each institution, it will be necessary to undertake rigorous but feasible measures to cut down the time spent on certain country reports. To illustrate, at one session of the Human Rights Committee, almost a whole day was devoted to the Channel Islands’ report, the

206

Transforming Rights

same length of time as was spent on Japan. Similarly, at another, as much time was allotted to Liechtenstein as to Germany. Disproportionate time allocations of this kind arise principally because of the understandable but impractical notion that ‘all states are equal’ and must be treated as such. The same is true of communications (complaints). Over the years, Jamaican communications, for example, many of which dealt with conditions on death row in one particular prison, and raised no new points of law or fact, nevertheless took considerable time to get through. Jamaica is no longer a party to the Optional Protocol, but the same problem persists elsewhere. Looking again at more extensive reforms, the possibility of consolidating the reports of the treaty bodies, so that one would do the work of all, has frequently been endorsed by various bodies, at least in principle. It should therefore not be set aside entirely. However, if it were pushed, it could well suffer the same fate as proposals for amalgamating the treaty bodies themselves. A meeting of persons chairing the treaty bodies has reported that ‘No consensus was reached with regard to the frequently expressed proposal to consolidate reports into a single global report covering all … human rights treaties.’ I very much doubt that that judgment is going to change. Nor should non-U.N. agencies be forgotten: it was a waste of time and effort, to take only one example, that the Council of Europe published a 185-page report on Lithuania shortly before that country came before the Human Rights Committee. And it is not an acceptable rejoinder to argue that the European Convention and the Human Rights Covenant are different and must be treated differently. Of course they are, and this must be taken into account, but avoiding duplication is paramount if states are to take the exercise seriously and human rights agencies are to avoid dissipating their energies. There is also an unfortunate tendency for individual states themselves to present long-winded reports, sometimes barely on point, that waste the time of all concerned. On many occasions, it is clear that some national delegations’ primary objective is to talk the committee out. They have little of value to say, and the object of the exercise is to escape after two or three sessions with the least possible damage. In other cases, however, a state’s report reveals that the drafters have simply not understood what is needed to fulfil the requirements for periodic reports under the Human Rights Covenant, despite numerous attempts by the committee to provide guidance on their preparation. Canada and ‘like-minded’ states could do wonders to improve

Human Rights and International Relations

207

that performance, whether by direct bilateral efforts or through financial or other support made available to the Office of the High Commissioner. Non-governmental organizations often offer helpful observations, which serve to throw a more objective light on the self-serving line that is characteristic of most country reports. However, their participation could be considerably more effective than at present. Brief meetings during the session, with those members of the committee who are able (and willing) to attend, and not for every country report, are hardly adequate, and are not a substitute for ongoing exchanges with the committee or the secretariat. No more are large volumes of documentation, which they often deliver very late in the day, not infrequently in English only. Beyond all this, there remain other serious problems. Not least is a want of resources that prevents many NGOs from presenting timely, well-organized observations, let alone attending the meeting at which the report is examined. There are also, it must be said, NGOs or special interest groups that are more interested in grinding an axe than in providing an objective analysis, as well as committee members who unfortunately are willing to follow them uncritically down that path. The treaty bodies were created by U.N. member states and in part remain the responsibility of those of them that are parties to the treaties. What more could they themselves do to improve matters? To begin with, let us be clear about what is not possible. Expecting increased resources from the United Nations in order to permit more frequent or longer sessions of the committees is not the answer in the present financial climate, at least until more vigorous efforts have been made to augment the committee’s output. I entirely share the view that ‘It is unrealistic to expect a substantial increase in the staffing or financial resources available to treaty bodies in the near or medium-term future.’15 In the circumstances, they ‘will have to learn to live with the status quo in terms of services available in the foreseeable future.’16 On a different tack, but also with respect to the good governance of the treaty bodies, U.N. members should be more concerned than they have been about diversity. The composition of the committee is troubling: the Western European and Others Group is clearly overrepresented, and most of the professional staff one sees are Westerners. Procedures involving one-language working groups and other examples of English unilingualism need further thought as well. They are of course perceived as pragmatic solutions to staff and resource problems,

208

Transforming Rights

but they will inevitably serve as well to Westernize (indeed Anglicize) the committee’s approach even more. The number of women on the Human Rights Committee also dropped during my time from four (two of whom were in the chair from 1997 to 2000) to two.17 It is difficult to see how this situation can possibly be reconciled with the notion of a body one of whose major functions is to promote equality and prohibit discrimination.18 At the same time, there is a very high proportion of lawyers among the members of the committee. It is true that the Human Rights Covenant requires that ‘consideration [be] given to the usefulness of some persons having legal experience.’ But it is a very long way from ‘some persons’ to the present regime. As one observer has put it, ‘We have moved from the idea of some lawyers to a world of virtually all lawyers.’19 It should be added in fairness that many committee members consider this perfectly natural, given the character of the committee’s work,20 and there is something in this reaction, at least in so far as the importance of having some knowledge of domestic and international human rights law is concerned. Again, however, this is very different from taking it for granted that all but a few members will be professors of law or serving or retired judges. In any event, it is a fact that the questions asked by committee members are often put from a Western, legalistic perspective. There is nothing intrinsically wrong with this, but it means that correspondingly less time is given over to other problems. Although this situation has altered somewhat in recent years, partly owing to questions posed by newer members, there should be more attention given to issues involving women, the disabled, racial and ethnic discrimination, and other grounds covered by the Human Rights Covenant. Some modest procedural improvements in working methods have already been made by the treaty bodies themselves, and these should be pursued vigorously. Sometimes the very simplest of expedients – for example, a more deliberate effort to reinforce a sense of discipline in the committee’s proceedings – can be among the most productive. I would, however, conclude, on past form, that one should not be sanguine about more ambitious changes. Even within the Human Rights Committee, there is no unanimity about working towards common reporting or committee amalgamation, and I assume the same is true in the other committees. In so far as change may require amendments to the covenants, the chances of success are even slimmer. In the circumstances, if Canada is interested in genuine reform of the treaty bodies, it will have to make a substantial contribution to that end on its

Human Rights and International Relations

209

own, perhaps with one or more like-minded countries, but without trying to bring everyone on board, and with a weather eye out not only for those who want to do nothing but for others who might wish to push the system beyond its capacities. None of this need involve abandoning more far-reaching models of reform. Further examination of all of them should be encouraged, and Canada could perhaps test their viability with the high commissioner, the Secretariat, committee members, academic and other experts, and other states parties to the treaties. But for the time being it would in essence mean favouring measures that have a better chance of seeing the light of day in the short to medium term, and that might serve as a basis for longer-term improvements, if and when a broader range of states have a real interest in pursuing them. The record, after all, is not a bad one on the whole. The international human rights system has been important in elaborating human rights principles and setting international standards. However, it is not nearly as effective as it could be in improving the human rights situation in specific countries or in redressing human rights violations. This is not so much as it might appear because of Manichaean divisions between good and bad players at the United Nations but often for more prosaic reasons. First of all, international organizations, and in particular the United Nations, are too bureaucratic, too cumbersome and inefficient, and too influenced by politics to be really effective in an area as sensitive and complex as human rights. Second, although international human rights treaties may be binding in theory, there is very little to back them up, with the result that they are rarely binding in practice and are easily ignored. And finally, the lack of funding for multilateral institutions has left the system without the support it needs. Where international organizations have been most effective has been in providing some momentum to countries where the political will exists to improve their human rights record. The Universal Declaration and the covenants on civil rights and economic rights, for example, are reflected in the human rights legislation of dozens of countries, and they have been helped to introduce them in practice by the Office of the High Commissioner and various national institutions. To that extent, they have made a significant impact, and should continue to do so within the realistic, if regrettable, limits I have described. 5 Canada and International Human Rights Machinery For observers of Canada’s performance vis-à-vis the U.N. covenants

210

Transforming Rights

and the committee system, and, reciprocally, for those who attempt to weigh the influence of that system on Canadian jurisprudence, the overall picture is not encouraging. To take only the Covenant on Civil and Political Rights and the Human Rights Committee, the assessment from an outside perspective is doubtless that Canada merits a passing grade, but not much more. There are two points at which states parties come most directly in contact with the Covenant and the committee that warrant a further look: country reports and communications. First, article 40 of the Covenant requires Canada, like all parties, to report to the committee periodically; it has suggested every five years as a general rule, but this can vary for a number of reasons. Canada’s record is reasonably good, although it has always been slow, sometimes excessively slow, in getting its reports ready. The reason is obvious from the Canadian point of view – the problems involved in consultation, given our complex federal system. However, this consideration is less compelling from the standpoint of the committee, and Canada has been criticized on this ground. It is also troubling to members of the committee that the Covenant has not been incorporated into Canadian law. At least some Canadian observers obviously see the matter differently – they feel that the Charter covers virtually all the rights dealt with in the Covenant, and that this is sufficient. I think they will simply have to accept that this rejoinder does not satisfy the committee, especially those members who come from legal systems where ratified treaties are the equal of domestic law or even have constitutional status. On more substantive matters, Canada’s record is generally favourable, although it has been subjected to quite severe criticism at the hands of the Economic and Social Committee, and to a lesser degree by the Human Rights Committee. In the latter case, the main issue has been the treatment of Canada’s Aboriginal peoples, but questions relating to the treatment of immigrants, for example, or child poverty, and more technical issues like access to the Human Rights Tribunal system or other judicial remedies have been raised as well. Second, for those states that are parties to the Optional Protocol, the committee is empowered to hear ‘communications’ from individuals, and to set out its ‘views’ on the allegations raised by the authors. These words, ‘communications’ and ‘views’, are obviously terms of art, and were not used accidentally. In the atmosphere of the Cold War, it was probably out of the question that those involved could have used the

Human Rights and International Relations

211

plain-language word ‘complaints’ (though that of course is what they are), much less anything sounding so determinative of state action as a ‘decision’ (though again that is what they are in fact). As another sign of the times, an effort was made in the committee to decide by consensus wherever possible, and to avoid voting. In regard to complaints, the rules allow for ‘individual opinions’ by members, which, often enough, are no more than that: an additional comment by a member who is essentially in agreement with the thrust of a decision. However, in the case of a clear dissent, which may be signed by one or two or more members, it is hard to see the difference from a negative vote, though the language of the committee does not treat them in that way. As to the Canadian record, the relationship with the committee in the matter of complaints has been satisfactory on the whole. First of all, while Canada has been subject to a considerable number of complaints, they result largely from active legal and NGO communities aware of Canadians’ rights, rather than an egregiously bad record, which is the case with some states about which there are hardly any complaints at all. Moreover, in those cases where Canada has been found in violation of the Covenant, it has on the whole moved reasonably quickly on the committee’s decisions. Indeed, two cases that will be familiar to some readers – Lovelace, which involved loss of Indian status by a Native woman who married a non-Native man, and Ballantyne, concerning the language of signs in Quebec – resulted in legislative changes to set the matter right. On the other hand, the Canadian reaction was much more questionable in the more recent case of Waldman, involving a father who alleged discrimination in the Ontario school system because he had to pay to have his children educated in the Jewish faith, whereas tuition would have been free in the Roman Catholic Separate School system. To my knowledge, this is the only instance in which Canada in essence refused to do anything about a committee decision, with the federal government responding that education was a provincial responsibility, and Ontario taking the line that it had no intention of changing the law as it stood. It is true that the then provincial government subsequently decided to provide a tax credit for parents whose children attended independent schools. This might have gone at least part way in the direction of meeting the committee’s concerns, but I am not aware that the Canadian authorities were in touch with the committee about them. In any event, the present Ontario government’s policy has been to eliminate any such

212

Transforming Rights

subsidies, which it deems an advantage for those who can afford private education, and detrimental to the public system. Of course, the whole matter was made more difficult from the Canadian perspective because the Supreme Court of Canada had earlier ruled that the existing arrangements were not unconstitutional, since they were in effect ‘a fundamental part of the Confederation compromise,’ and also because it was never intended that ‘the Charter could be used to invalidate other provisions of the Constitution.’21 These considerations could hardly have been seen to be relevant by the committee, given the anti-discrimination requirements of the Covenant. Likewise, the division of powers in this country could not be regarded as a persuasive factor, in light of the fact that it is Canada that is the party to the treaty, and of article 50, which states that its provisions ‘shall extend to all parts of federal states without any limitations or exceptions.’ Moreover, it is well known that Ontario was fully consulted, as were all the provinces, and approved the ratification of the Covenant. Indeed, they went further: at a federal-provincial ministerial conference in 1981, a joint statement asserted that ‘each government undertook to ensure that current and future legislation is compatible with Canada’s international obligations.’ Be that as it may, as one looks more generally at the Covenant obligations and Canada’s record, one can choose to be optimistic or pessimistic: the bottle may be half-full or half-empty. For example, the late Chief Justice Antonio Lamer stated that the Covenant had been cited by the Supreme Court in its judgments on an increasing number of occasions. More important, he also remarked that ‘the Charter can be understood to give effect to Canada’s international legal obligations, and should therefore be interpreted in a way that conforms to those obligations.’22 And he cited similar comments by his predecessor, the late Chief Justice Dickson. Other Supreme Court justices have written along similar lines,23 and the decision of the Supreme Court of Canada in the Burns and Rafay case goes in the same direction.24 It should also be noted that Canadian government spokesmen have taken a similar line: the Canadian ambassador to the United Nations in Geneva, appearing before the Human Rights Committee in 1984, stated in particular that ‘The Charter gave effect to many of Canada’s obligations under the Covenant,’ and further that ‘the Covenant and the comments made by members of the Committee … contributed to many of the changes to the original draft of the Charter.’ On the other hand, it is my impression that the lower courts are

Human Rights and International Relations

213

less likely to allow themselves the liberty of taking account of international engagements in assessing Canada’s obligations, and in deciding human rights cases in consequence. This is not surprising, as treaties are generally accepted as not being part of the law in Canada unless they are implemented by legislation, a principle that has been reiterated on numerous occasions. Furthermore, although ‘Parliament is not presumed to legislate in breach of the established rules of international law,’ if there should be a clear conflict with a Canadian statute, it is the latter that will prevail.25 And in any event, some commentators appear unable or unwilling to distinguish between what is justiciable before the courts and international obligations undertaken by Canada through the treaty process. In that context, it is worth emphasizing the contrary view taken by the Australian High Court in the Teoh case: ratification of an international convention is not to be dismissed as a merely platitudinous or ineffectual act. Rather, it is a positive statement by the Executive to the world and to the citizens that the Executive and its agencies will act in accordance with the convention.26

We must hope that the Canadian Department of Justice is listening. Canadian statute law, for its part, as a general rule simply ignores international instruments. There may be others, but the only federal statutes of which I am aware that cite the covenants are the Multiculturalism Act, the Emergency Measures Act, and the revised Immigration and Refugee Protection Act. It is also unfortunate that Parliament has traditionally not been allowed anywhere near the treaty process in Canada. Of course, it is accepted that it is the prerogative of the executive to authorize the signing and ratification of treaties. But it is passing strange that at least consideration by a parliamentary committee has not been envisaged prior to ratification. I think the conclusion of a Senate committee that studied the matter a few years back is apposite: Such a process could be particularly useful in the case of international human rights instruments. It could provide an opportunity and a forum for assessing the adequacy of the government’s plans for domestic legal implementation of such a treaty prior to Canadian ratification.27

It is encouraging as a result to note that the Harper government

214

Transforming Rights

has announced that this practice will be changed to give Parliament a ‘greater role.’ In that context, the minister has stated that ‘Under the new process, members of the House of Commons may review and discuss the treaty – examining, debating or voting – before Canada formally agrees to ratify it.’28 We will now have to wait to see how this commitment is carried out in practice. Finally, it is regrettable that there is a vast ignorance in Canada about the nature and implications of Canada’s international commitments. It is true that sanctimonious references are made from time to time to the U.N. Charter, say, or the Universal Declaration, usually in respect of other states’ behaviour. But little is known about the treaties to which Canada is a party, and their consequences for Canadian law and practice. The Human Rights Covenant specifically requires that states undertake ‘such measures as may be necessary to give effect to the rights recognized in the present Covenant,’ and to report on these measures ‘whenever the Committee so requests.’ The other covenants have similar provisions. Yet some Canadian commentators ask rhetorically by what authority these committees think they have the right to criticize Canada. For example, when the Canadian delegation appeared before the Committee on the Elimination of Racial Discrimination in August 2002, the National Post ran a news article in which Fred McMahon of the Fraser Institute called Canada’s appearance ‘a bizarre waste of time.’29 The Post also ran an editorial along similar lines, entitled ‘Lecturing angels, ignoring villains.’30 More serious, certain political figures endorse the same point of view; and even governments occasionally take the same line – witness Ontario in the Waldman case to which I have just referred. From the United Nations perspective, it is likewise not difficult to adopt a gloomy posture. Several states are overdue in submitting their reports, some of them by many years. It is also well known that, paradoxically, if all states did report on time the Human Rights Committee would be unable to cope, owing to a lack of personnel. And not a few reports ignore the actual situation on the ground, in favour of a recitation of constitutional provisions, laws, and regulations that theoretically govern the human rights universe in the country under examination. The committee itself is slow, and given to overly theoretical debate, with the result that there is a very substantial backlog, both in respect of country reports and communications, which many regard as a serious threat to the functioning of the treaty body system. Perhaps worse

Human Rights and International Relations

215

than that, its recommendations on the performance of states parties to the treaty, as set down in its reports, and its ‘views’ in respect of ‘communications,’ have no executory force, and some states simply ignore them. The committee’s capacity to follow up on reports or complaints is also very limited, and a persistent lack of funds and personnel continue to weaken all the treaty bodies. All this would be more than unfortunate in a better world; but in the real world in which we live, a realistic assessment must be much more nuanced. Given the history of the past sixty-odd years; the realities of the Cold War over more than forty of those years; the scant attention accorded to human rights in countries which are more worried about external and internal strife and putting bread on the table; and the grave financial difficulties with which the United Nations has had to live for so many years, things could be worse. As to Canada, the record is certainly not a bad one: a little less moral posturing vis-à-vis others, and a little more effort to resolve long-standing difficulties at home, and it could be exemplary. Egregious setbacks there are many. But in other respects we are better off than one might expect, and that is perhaps all one can ask for in these times. 6 Canada and Human Rights Violations The connection between respect for human rights and the maintenance of world order is probably more evident today than it ever has been before. It has become a commonplace to say that the traditional threat to world peace – hostilities between states, especially major powers – has been all but replaced by confrontation within states. And in far too many cases, these conflicts are the direct result of a failure by the public authorities to respect the rights of people within their society. Ethnic disputes, religious turmoil, and civil wars rarely arise in countries where rights are guaranteed and protected. Thus, the link between peace and human rights is an obvious one. What is not so obvious is how a country like Canada should respond to human rights violations in other countries, as is reflected in the continuing debate over the question whether human rights should be dealt with through engagement on the one hand or isolation and even punishment on the other. I do not believe in approaching problems in either-or terms, particularly in areas as complex as human rights and foreign policy. Moreover, even the expression ‘abuse of human rights’ presents problems when

216

Transforming Rights

applied to state behaviour, because human rights performance is multifaceted, and it is superficial simply to divide countries into those that abuse human rights and those that do not. No country has a perfect human rights record, and we should be cautious about making judgments based on the latest newspaper headlines or reports by the U.S. State Department. Aboriginal persons living in Third World conditions in parts of Canada, for example, might argue that this country has an abysmal human rights record, and they would probably be right. On the other hand, a country that is condemned for violations of the principle of free speech may have a better record in another area, such as improving education or medical service, without which human rights may not mean a great deal. This is not to say that Canada or any other country should refrain from taking human rights into account in its foreign policy, and I am certainly not embracing the equally simplistic doctrine of cultural relativism. What I am saying is that the whole business is rather more complicated than it may appear. For this reason, punishment or isolation of countries that do not perform to Canada’s human rights expectations should be the exception rather than the rule. When considering such a policy, we must first of all be very careful in determining what kind of human rights abuse warrants such treatment. Unless we establish a hierarchy of rights – which I doubt most observers would support – how does one make this determination? And even if we could determine what countries would be singled out for this kind of treatment, would our actions have any impact? Of course, there is the argument that ‘impact’ does not matter; we should do what is right. Perhaps, in extreme circumstances, that is so; but I suggest it is a course of action that should be pursued sparingly. And we must temper our natural desire to do something with the realization that, although multilateralism and globalization have made nations more interdependent, the principle of state sovereignty is still alive and well, constraining the extent to which one country or group of countries may look into another’s internal affairs. Thus, we should not be under any illusions about the effectiveness of international pressure in forcing a country to improve its human rights record. So-called ‘megaphone diplomacy,’ let alone more direct action, has on the whole had little impact on human rights performance. Even in the case of South Africa, which is often portrayed as a model of international intervention and where there was virtual unanimity, domestic pressures and weaknesses probably had as much impact on

Human Rights and International Relations

217

what ultimately came to pass as did action by the world community. And in so far as sanctions did contribute to the dismantling of apartheid, it is because the world’s nations acted in concert. Unilateral action even by a powerful country cannot do it: one has only to look at Cuba. And sanctions by a group of nations will not have much effect if other countries are there to fill the gap. As a result, I am of the view that engagement is in the end the only realistic way in which a country like Canada can have an impact on the human rights performance of another country. And by ‘engagement,’ I am not just talking about diplomatic initiatives. I also mean providing practical assistance in the human rights field. Canada has a wealth of human rights expertise: rather than tell other countries what to do, we should be assisting them to see how it can be done and lending a helping hand where we can and when they will accept it. To some extent, Canada has already been doing this over the years. The Canadian Human Rights Commission and provincial commissions have been involved in projects aimed at strengthening fledgling human rights agencies. A number of government departments and agencies, including the Department of Justice and Elections Canada, have also had international assistance programs for some time. NGOs, organizations like the Canadian Bar Association, and academic institutions are involved in similar projects. At the multilateral level, there are also programs aimed at strengthening the human rights capacity of member states, although they are not as well funded as they should be. The Office of the Human Rights Commissioner has contributed to a number of initiatives in this area, sometimes with active involvement on the part of Canadians. I am not arguing that these initiatives – or any other assistance programs – are a panacea for the world’s human rights ills. Nor are they applicable to all countries with human rights problems: to begin with, there has to be some political will on the part of the governments that participate. A country that has no desire to go that way will obviously not welcome this type of assistance or will play no more than a halfhearted role if it is pressured into participating. However, many countries, even those with less-than-stellar reputations in the area of human rights, are moving towards improving their human rights infrastructure. Globalization has signified more than increased economic interdependence; it has meant that international standards of behaviour have to be taken more seriously, and this is as true in human rights as any other area. And once a country has accepted the principles, there is

218

Transforming Rights

an international expectation that efforts will be made to translate them into practice.31 This does not mean that the bad actors are going to change their stripes overnight, if ever. But as I have suggested, attempts by Western governments to punish them have not generally borne fruit either. What I think we all have to remember is that diplomacy, even more than politics, is the art of the possible. No country, including Canada, can remake the world in its own image, nor should we even try. Instead, we can and should use our influence when and where it will be useful, offer our help where we can do so realistically, and join with others to make organizations like the United Nations a more effective voice for human rights. If that puts me in the ‘engagement’ camp – beyond the pale for those who live in a world of good guys and the ‘axis of evil’ – so be it. But until I am persuaded that something else works better, I see it as the only practical option we have.

PART FIVE Summing Up and Conclusions

There can of course be no ‘conclusion’ in the matter of language rights and human rights. It is an unfolding narrative that will be with us for a very long time: language rights because of the very nature of Canada; human rights because of a universal story that has inevitable implications for all countries, including our own. I must nevertheless conclude this essay, and I do so more on an optimistic than a gloomy note. Which surprises me, I must say, as anyone who knows me will confirm that I am a pessimist by nature. Perhaps my relatively positive attitude results as much as anything from looking back on the history of rights in the not so distant past, at the end of the Second World War, say. It was a grim time for language rights at home and human rights worldwide. Looked at from that perspective, we have accomplished a good deal, although, one must inevitably add, much remains to be done. 1 Language Rights In the federal public sector, one can only blush to think of the way we conducted ourselves vis-à-vis the French language when I came to Ottawa half a century ago. To take Parliament as a symbolic illustration, it is difficult to conceive today of the extent of unilingualism on Parliament Hill a few decades ago. Interpretation had of course been introduced for parliamentary debates, but for the rest, it was very thin gruel. Virtually all identifying signs, building names, titles under the portraits of former speakers and prime ministers, to take only a few of the more glaring examples, even the commemorative books honouring Canada’s war dead, and indeed the verses inscribed in stone over the

220

Transforming Rights

main door of the Centre Block – all were resolutely in English and only English. Today, this is happily a thing of the past. I would like to be able to say that the same is true across the public service, but even if I may be an idealist of sorts, I am not blind. We still have a very long way to go, and it will not be easy, even in our national capital (I am tempted to say ‘especially in our national capital’), where the press and many public servants remain hostile. But my point is that we should not demean what we have achieved. None of this happened without a struggle; but it did happen – peacefully and in a relatively short period of time – and there is no going back on it. I believe that we might be just a little bit pleased, and there are few things about which I could say the same as I look around me today. Yet there remains a sense of unease about ‘bilingualism,’ and perhaps an overall political fatigue, which results in an inability or unwillingness to continue pushing the language dossier in the face of persistent criticism. Much of this difficulty has its roots in the fact that public policy has often been in advance of public opinion. As I have suggested above, for example, without legislation it is highly unlikely that the private sector would have moved any real distance towards a bilingual regime. And even with legislation, there has been frequent backsliding and often much kicking and screaming about costs and the consequences for unilingual Anglophones. Obviously, it cannot be said that Anglophones never lose out in the job market because of language requirements. But it has been shown time and again that the number of bilingual public service jobs outside the National Capital Region, and particularly in the west and the Maritimes, is both very small and in keeping with the proportion of Francophones in the population at large. And in my own experience, in Ottawa, there are often more convincing reasons than a lack of language skills that explain why a particular public servant is not chosen for a particular position or a promotion, whatever the individual concerned may think. And the cost? It is clear that two do not come as cheaply as one. But neither does the multi-level government that Canadians prefer, as compared with a unitary state, or a string of communities strung out along the American border as against a neater north-south arrangement. To be sure, bilingualism costs, but by and large the costs have been much less than opponents of the program would have it. And the political price we would pay would be immeasurably higher were we to abandon the program or move to a territorial system.

Summing Up and Conclusions

221

But what of the argument that the real waste lies in the fact that the minorities are dying out in any event, and that it is pointless to expend huge sums on a lost cause? It is true that the promoters of a territorial language policy may well see the future in that way. However, a more impartial reading suggests that minority-language communities have shown themselves to be more resilient than a variety of pundits had predicted, and that, however they may fare as a percentage of the population, they will continue to represent viable communities across the country for as far into the future as one can see. It is perhaps not without significance, at the political level, that only the separatists, and the Reformers and their Alliance-Conservative successors, have promoted the territorial option with any consistency. What will the future bring on this front? Prime Minister Harper’s earlier musings about the merits of a Belgian ‘solution’ – one of the most extravagant contributions to the language debate that I have heard in going on forty years in the business – are hardly encouraging. And even the present government’s persistent desire to capture Quebec is not reassuring, as nationalist Quebeckers usually have more ambitious goals than language reform on their minds. In any event, are some of us not being led down the garden path, with our grand ideals of a bilingual Canada, while Quebeckers go their own unilingual way? It is true that Quebec language legislation and regulations have at times been excessively intrusive in areas like commercial signs (although they were changed to allow both languages, in response to decisions by the Supreme Court and the U.N. Human Rights Committee) and that the hardliners would make them more so if they could. However, I believe that this movement has peaked, and that most French-speaking residents of the province are now content with what has been accomplished by Bill 101. Moreover, life on the ground in Montreal – and it is after all Montreal that is the major linguistic battlefield in Quebec – can be rather different from the picture presented by the theorists. Even signs admit of many exceptions. Large companies, for example, can manage quite well with no more than their corporate name. ‘Drink Coca Cola’ may be illegal, but ‘Coca Cola’ alone is not. Nor is ‘Canadian Tire,’ and any number of other trade names are perfectly permissible. There is also a special regime for federal government buildings and for cultural and religious signs, to take only a couple of illustrations, and there are numerous small proprietors who apparently bend the rules, and get away with it. The result is a city that has a much more French look to it than it did forty years ago,

222

Transforming Rights

which was one of the objects of the exercise, and hardly unreasonable. But none of this is as linguistically intimidating as might appear from urban myths that are widespread west of the Ottawa River. And what is true of signs is markedly so in more important areas of life. English-language schools, universities, books, newspapers, films, plays, television – all are available to a degree that the Francophone minority outside Quebec would be only too pleased to enjoy. That is no substitute, of course, for being made to feel welcome, a gesture that Anglophones and various ethnic minorities rightly sense is too often lacking in Quebec, however much Péquistes protest to the contrary. But in strictly linguistic terms it is a much more open society than it is often portrayed as being. In a word, I think we may conclude that the process of language reform in Canada is irreversible. What was begun by Lester Pearson in the mid-nineteen sixties and carried on by Pierre Trudeau and successive political leaders, Liberal and Conservative, is now deeply embedded in our constitution, our laws, our administration, our schools, our cultural institutions, and even in the daily life of many of us. The only real question is whether we will make a success of it across the board or continue with a mishmash of achievements and failures. I could not personally wish for anything but the former; I expect we shall have to live for the most part with the latter. But what has been achieved, and what can be achieved in future, are more than I would have expected at the time of the Royal Commission, some forty years ago, and perhaps more than even the commissioners themselves would have anticipated. That the duality thesis, so dear to at least some of them, has not fared as well is quite another matter. Unlike many other issues where their judgment on the whole was far-sighted, there has been a conspicuous difference between what the commissioners envisaged and reality as it has unfolded since the 1960s. The major emphasis given by them to the ‘two founding races/peoples’ idea from the very beginning of their introductory report has been in marked contrast to its relative failure to stand the tests of time and politics, and with it the emphasis placed by the commission on ‘partnership’ and ‘biculturalism.’ At the same time, however, we should remind ourselves that opposition to these notions, or to ‘special status’ does not necessarily mean opposition to the ‘French fact’ – as we know from Trudeau’s remark in the 1968 Liberal leadership race, that French-speaking Canadians, indeed Frenchspeaking Quebeckers, should aspire to be ‘maîtres chez nous, mais chez nous c’est le Canada.’

Summing Up and Conclusions

223

And that all these issues have persisted in dividing Canadians is a commonplace. That they will continue to do so is equally evident. As I write, the ‘distinct society’ option – to use one of its names – is somewhat in eclipse; and that is fine by me. But similar ideas are still very much in vogue, and I think that I would hedge my bets on where Prime Minister Harper might be inclined to go on these issues. And of course the sovereigntists, as some of them like to call themselves for tactical reasons, or separatists to be more honest about it, are nowhere near extinction and are never likely to be. I recognize that there are many other Canadians of good will who do not share my views. They appear to believe that accepting the distinct society concept or some variant would be a small price to pay for what they perceive as a just solution to a very difficult problem. I would perhaps endorse that idea if I thought it would end there. But I do not. In my own appreciation, it would add strength to what I can only call the separatist perspective on the future of what we now call Canada. And that is simply too high a price to pay. Fortunately, I would argue that we do not have to cross that bridge to accomplish what is needed to ensure a just and equitable language regime. I would very much hope we will continue to work towards that end. 2 Human Rights Human rights present a curious conflict of perspectives in Canada. On the one hand, we are proud, perhaps overly so, of what we consider to be our sterling record, both at home and even more on the international scene. On the other, single-interest groups, with a not-infrequent boost from the media, maintain a constant refrain about our failure to respect the rights of all manner of Canadian minorities. As one who spent many years in the front of the pack, regularly growling at governments for their shortcomings, I have to come to the rather pedestrian conclusion that the truth lies somewhere in the middle. On the positive side, the rights universe could hardly be more different today from the postwar world, or even the state of affairs as we knew it in 1976, at the time of the entry into force of the two binding elements of the U.N. Bill of Rights. It is true that in Canada a number of provinces had led the way earlier on with their own rights legislation, and that the Diefenbaker government had brought forward a federal statute as early as 1960. But it was not until 1977 that the adoption of the Canadian Human Rights Act brought the federal administration up to

224

Transforming Rights

speed, and not until 1982 that the Charter of Rights1 gave constitutional stature to the whole picture. Twenty-five or thirty years are the tiniest fraction of historical time; yet Canada has been able to achieve substantial progress across the rights front, and continues to do so. Concrete advances have been made with respect to the prohibited grounds of discrimination. At the same time, from a more broad-ranging perspective, an impressive body of jurisprudence has been developed by the courts, particularly by the Supreme Court of Canada, following the adoption of the Charter, which has left a firm legacy of rights principles to guide others in the years ahead. I have discussed above a number of the elements in the endeavour to deal with discrimination in this country, and I shall review them here only very briefly. On the question of women’s rights, I have observed that blatant sexual harassment, especially in the workplace, has substantially diminished. I did not say that it has disappeared or that it is likely to. But the machinery is there to deal with it, even though it takes a brave woman to take advantage of it. The same is true of open discrimination against women, in the matter of hiring, for example, though there remain more subtle ways of inhibiting their progress, especially with regard to promotion. And there continue to be huge obstacles on the way to the top. Postsecondary education is fully open to women in all areas, for example; indeed, they predominate in some. But the proportion of female full professors continues to be low, as are senior managers in, say, the medical profession or even specialists’ positions outside what are perceived to be female doctors’ ‘traditional’ roles. Women have become a very high proportion of students in our law schools as well, but there are few female managing partners in major law firms. And of course their numbers are very low in the CEO ranks in large private sector organizations. They are on the right track, yes; they are advancing, yes; but if I were a woman, I would have serious misgivings about what we Canadians have come to call ‘wait times’ in another context. The matter of pay equity or ‘equal pay for work of equal value’ is a particularly vexing source of frustration for women. It is bad enough to encounter difficulties in getting ahead because one is female, but to be assigned to a position, indeed to spend a career, in an occupation that is less well paid than work performed by men because it has always been viewed, consciously or unconsciously, as ‘woman’s work,’ is intolerable. Slowly we are moving away from this state of affairs, it is true, but too often only after time-consuming litigation to bring employers on

Summing Up and Conclusions

225

side. In any event, we still have a long way to go in Canada, compared, for example, with the Scandinavians, who are consistently ahead of us, let alone to meet the benchmark we insist upon as a general rule in the matter of equality rights. Over the same time period, the situation of homosexuals has probably undergone the most dramatic change of any minority group in Canada. In 1977, the Canadian Human Rights Act was adopted without any reference to sexual orientation because MPs simply did not believe that they could (or did not wish to) include it for political or what some perceived as moral reasons. With the passage of time, we have seen the courts interpret the Charter of Rights to include it as an ‘analogous ground,’ and human rights legislation amended to bring it in explicitly among the prohibited types of discrimination. We have also seen the concept of ‘civil unions’ of persons of the same sex accepted in various jurisdictions, and same-sex marriage adopted by the Canadian Parliament. Does all this mean that discrimination against homosexuals has been eradicated? I wish it were so, but clearly it is not. Legally, it may be, but there still are any number of subtle impediments to fair treatment. However, society – at least Canadian society – continues to evolve, and I think we may look to the future with some optimism. Persons with disabilities, as I have remarked, seem to me at times to be forgotten in the move towards rights equality. Not that we lack for legal requirements forbidding discrimination and mandating mechanisms and agencies for combating it. But there is a strange absentmindedness with respect to our compatriots with disabilities. A tendency, for example, to design buildings or transport systems as if everyone were the same. Only a determined and sustained push by disability lobby groups, in conjunction with action by legislatures, governments, and the courts and human rights agencies will see us through. There have been enough studies and reports on the matter; concrete measures to match have been much slower in coming. We all grow old, and, I might add, we now grow older. As a result, rules of the game regarding ‘the elderly’ that were applicable in Bismarck’s time are hardly appropriate today. The question of proper retirement and pension arrangements, and of disputes that sometimes push in opposite directions, are well beyond the scope of this essay. But it has become increasingly clear, and acceptable to large segments of society, that rules requiring mandatory retirement are not satisfactory or consistent with the equality provisions of our Charter of Rights. I recognize that this latter comment is not altogether compatible with the

226

Transforming Rights

judgment of the Supreme Court of Canada in the McKinney case, where mandatory retirement was found not to be unconstitutional, partly for technical reasons, partly on the grounds that, while discriminatory, it could be justified as a reasonable limitation under section 1 of the Charter. It remains my belief, however, that with the passage of time and changing demographic considerations, the substantive aspects of this decision are likely to be revisited. The generation beyond retirement age is a different matter. They must be supported by society, and supported willingly. Setting up artificial conflicts between older persons on the one hand and younger people who work and ‘pay the bills’ is counterproductive and can be deeply harmful. And in any event, it is of questionable merit on the facts. Of course the elderly are a drain on publicly financed arrangements, but so are young people of childbearing age or with children at school. And, depending on their incomes, older persons may well have contributed sizable amounts to the system before they started collecting. The last thing we need in this country is a divisive battle between young and old, especially in the area of health care, where we must work together on a difficult problem. It is my impression that discrimination on grounds of race, ethnic origin, and religion has diminished over the years. Perhaps this is merely by comparison with the past, for even well beyond the end of the Second World War it was egregiously blatant – towards blacks, Jews, even Catholics at the hands of the Orange Lodge in the earlier days of my youth. Its absence from ‘respectable society’ today makes it look as though extensive advances have been made, and I believe that by some measures they have. But racial profiling by the police, for example, or anti-Semitism and hate propaganda that are regularly identified by watchdog bodies are still very much with us. Again, the legal machinery for combating them is not lacking. What is needed is a vigilant endeavour to make it work in practice. Beyond direct discrimination against individuals and various groups, there are system-wide problems that employment equity programs are designed to remedy. We are rightly proud, I believe, of our commitment to Canada’s multiculturalism policies, which, together with the objectives set out in the Charter and human rights legislation, themselves are the foundations of our attempt to engage new arrivals in the life of this country. It is true that there are misgivings, sometimes wildly exaggerated, about certain types of ‘reasonable accommodation’ – in Quebec, for example, regarding the wearing of hijabs by Muslim women, and to

Summing Up and Conclusions

227

a degree across the country by individuals who profess to be defending ‘Canadian values.’ But in my opinion the guiding principles of the policy are secure, even when terrorist threats have made some Canadians feel apprehensive vis-à-vis others who are ‘different.’ Participation brings this commitment to life, and in large measure participation entails a place in the work world, an opportunity that has proven more difficult to offer to many new arrivals. Of course, bona fide reasons like lack of language skills may play a part. ‘Canadian experience,’ as well, some would add, though this can at times be disingenuous in its circularity – no experience, no job; no job, no experience. And, I repeat, participation is to me the single most important element in integrating our immigrant population in a positive manner, and employment in its turn the single most significant component of participation. Hence the imperative need to bolster and reinforce employment equity programs. Not through ‘affirmative action’ with its mandatory quotas, but by vigorous targeting and recruitment of diverse groups with diminished chances of entering the labour force, and therefore increased possibilities of involvement in a culture that can lead to anti-social or indeed violent behaviour, as it has elsewhere in the West. And employment cannot stop with recruitment. Promotion within one’s capabilities to more senior responsibilities is the promise of a participatory future in this country. And if this takes us back to broader issues of experience and education, so be it. These people must be dealt with as our people, inclusively and without dodging the issue. Thus far, I have been sketching out a series of developments that probably can be described as passable progress, given the relatively short time we have been involved in trying to do something about discrimination. Aboriginal rights, however, are the exception. They are no less than a flagrant violation of what we hold to be the heart and soul of our understanding of human rights – a violation that we have allowed to endure over very many years, indeed centuries. Even today continuing bickering among different levels of government, inertia within various bureaucracies, and self-serving argumentation on the part of some Aboriginal leaders have left Canada in an unhappy situation that is deplored on all sides, internationally and within our own country, and out of which we appear to move at glacial speed. I have suggested that there are ways in which we could progress, and we know that the players wish to get on with things. Inspired shortterm solutions seem to be in short supply, and advice that amounts to

228

Transforming Rights

little more than an admonition to do something is hardly helpful. One could wish that Canadians, without any further sense of guilt but in the greater interest of our country, could be made to see the importance of marshalling their attention and their energies in this area, as they have regarding health care and more recently climate change, so as to energize our leaders to appreciate the political value of revving up the machine. Even that, however, may seem an unpromising cause, given all the other things on people’s minds. In the circumstances, human rights groups will themselves have to give a higher priority to what is after all, by common consent, the most serious and apparently intractable problem we have to deal with on the rights front. Parliament and the press are rightly worked up about the treatment of detainees in Afghanistan, but a vigorous commitment to improving the situation of our fellow citizens of Aboriginal descent should surely occupy as much or more of a place in the forefront of our collective consciousness. Finally, I have pointed out that, in the area of international human rights, various United Nations bodies are not in good health. But I do not assess the disease as terminal, and I do not believe that the U.S. State Department is the best physician to cure it. Western observers were for many years after the skin of the Human Rights Commission; having replaced it, they are now almost as irritated by the new Human Rights Council. And for essentially the same reasons: the membership includes states that are regarded as unworthy on account of poor human rights records; and the council pursues issues that seem to the West to show bias while ignoring gross violations elsewhere in the world. I have no doubt that Western nations have some reason to be concerned on both counts, but I also judge that they may be missing the important point. The international community presents a broad tableau, comprising all sorts of actors, with different views of the world, and we Westerners – particularly North Americans – do not always occupy the high moral ground. The composition of these bodies is not going to change, and the regional and other ‘deals’ for getting members elected (in which, Canadians might be surprised to learn, our own country engages as much as others) are not going to be eliminated. And non-Western states, sometimes hostile to our well-being, are going to pursue their interests just as all sovereign states do. Does that mean that we have no option but to sit by, like impotent editorialists, occasionally launching a verbal thunderbolt at the wicked? I do not believe so for a moment. There are a number of practical reforms we could work towards, with other states of the same mind,

Summing Up and Conclusions

229

some of which I have outlined above, that could advance the accomplishment of a more realistic and unbiased agenda by these bodies. In my view, we would do well to try to move in this direction, and leave some of the rhetoric behind. Canada has been active from the beginning on the global human rights scene. We have contributed, I believe, to all the international human rights bodies, with a persistent desire to move ahead, and are well up in the league tables with other players with whom we like to compare ourselves. We have perhaps gone overboard on occasion in lecturing others about their faults or moralizing about the evil ways of the world. And some of us react badly (dare I say childishly) when Canada itself is criticized by international monitoring bodies. In this context, we might remember that it is easier to operate on the international scene, censuring others, than it is to recognize and do something about our own failings. But, all in all, we do a reasonably creditable job; let us continue to do so, and leave it at that. And where does all this leave us? When I was language commissioner, I used to be pressed by the media, on the occasion of my Annual Reports, to give governments a ‘grade.’ I usually fell in with the game, assigning whatever the occasion seemed to demand – I never recall an A. I hope it will not be regarded as frivolous if I end on that note. It seems to me, after all my years in the business, that Canada has established a reasonably good record for what it has achieved on both human rights and language rights, in this country and internationally, probably better than that if one compares us with many other countries. However, as I have also observed, in terms of the high standard we set for ourselves, I doubt we deserve more than a passing mark. I would like to think we can do better than that.

This page intentionally left blank

Appendix: Official Languages and Human Rights Commissioners

Commissioners of Official Languages: Keith Spicer – 1970–7 Maxwell Yalden – 1977–84 D’Iberville Fortier – 1984–91 Victor Goldbloom – 1991–9 Dyane Adam – 1999–2006 Graham Fraser – appointed 2006 Chief Commissioners of the Canadian Human Rights Commission: Gordon Fairweather – 1977–87 Maxwell Yalden – 1987–96 Michelle Falardeau-Ramsay – 1997–2002 Mary Gusella – 2002–6 Jennifer Lynch – appointed 2007

This page intentionally left blank

Notes

Part One: Introduction 1 The rather unusual ‘Yalden’ name, which, I am told, puzzles people in Canada from time to time, is more common in England, and has a long history in that country. For example, one Thomas Yalden (born in Exeter in 1671) receives a brief mention in Johnson’s Lives of the Poets as a minor poet, Church of England clergyman, and fellow of Magdalen College. 2 After Benjamin Lee Whorf, who wrote a series of groundbreaking articles on this subject in the 1940s and 1950s. 3 Ben Rogers, in A.J. Ayer, A Life (London: Chatto and Windus; Random House, 1999), 217. 4 Quoted by Adam Gopnik in the New Yorker, 1 April 2002, 92. 5 John Foster Dulles, President Eisenhower’s secretary of state, and Cold War warrior extraordinary. 6 Peter Roberts, with whom I served as a junior officer in our Moscow embassy later that year, and who was posted in the nineteen eighties as Canadian ambassador to the Soviet Union. 7 As the General was fond of calling Quebeckers. One might well suggest that he got it entirely backwards: Quebeckers are rather more ‘des NordAméricains qui parlent français.‘ 8 Marcel Cadieux, the under-secretary of state for external affairs, to give him his proper title. 9 Entitled Federalism and International Relations; joined, the following year, by a second volume, entitled Federalism and International Conferences on Education. 10 Pelletier was appointed secretary of state (or minister) following the Liberal victory of June 1968, and Léger under-secretary (deputy minister)

234

Notes to pages 20–37

later that year. I was appointed assistant under-secretary of state (assistant deputy minister) in March of 1969. 11 The CRTC is the major regulatory body for telecommunications and broadcasting in Canada. Before 1976 it was called the Canadian Radio-Television Commission. 12 According to section 49(1) of the Official Languages Act, the appointment of the commissioner of official languages requires the approval of Parliament. 13 The Canadian Security and Intelligence Service. Part Two: Language Rights 1 Elise Hurtubise-Lorange, Official Languages and Parliament. 2 Royal Commission on Bilingualism and Biculturalism (hereafter B & B Commission), A Preliminary Report, 25. 3 Ibid., 31. 4 Ibid., 21. 5 B & B Commission, Report, Book I, 155ff. 6 B & B Commission, A Preliminary Report. 7 Ibid., 13. 8 Ibid., 27. 9 Ibid., 27. 10 Ibid., 117. 11 Ibid., 126. 12 Ibid., 91–2. 13 Ibid., 99. 14 Ibid., 122. 15 J.B. Paradis, ‘Language Rights in Multicultural States: A Comparative Study,’ Canadian Bar Review 48 (1970): 651. 16 B & B Commission, A Preliminary Report, 111. See also page xxxiii, of Book I of the report: ‘We have already said that the two dominant cultures in Canada are embodied in distinct societies …’ 17 Ibid., 137. 18 Ibid., 139. 19 Ibid., 129. 20 B & B Commission, Report, General Introduction; Book I: The Official Languages. 21 Ibid., xxii. 22 Of which the commission was well aware – see ibid., xxiv. 23 Ibid., xxvi–xxvii. See also a reference to meetings with Native groups at

Notes to pages 37–49

24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54

235

page 49 of the Preliminary Report, and, at page 211, to a research paper on the subject by Frank Vallée. B & B Commission, Report, Book I: General Introduction, xxviii. Ibid. Ibid., xl. Ibid., xlii–xliii. Based in part on a conversation with Royce Frith, a member of the commission. B & B Commission, Report, Book I: General Introduction, 12. Ibid. Ibid., 80, n1. Ibid., 80. Ibid., 84. Ibid., 82–4. Ibid., 85–6. Ibid., 69. Ibid., 86. Ibid., 91. Ibid., 102. Ibid., 106. Ibid., 116. Ibid., 119. It should be noted that the ‘federal capital area’ should not be confused with the considerably larger ‘National Capital Region.’ Ibid., 138. Ibid., 134. Now the Constitution Act, 1867. At the time, Gordon Robertson. Max and Monique Nemni, ‘A Conversation with Pierre Elliott Trudeau,’ Cité Libre 26, 1 (February-March 1998): 92ff. Gordon Robertson, Memoirs of a Very Civil Servant, 224. Ibid., 260. Record of Cabinet Decision, 17 June 1969. For the record, Book I included 14; Book II, 46; Book III, 57: Book IV, 16; and Book V, 17, for a total of 150. The vote on second reading was 197 to 17. The act was assented to on 9 July 1969. This exception was removed in the Official Languages Act of 1988. The existing statute was repealed and replaced by Bill C 72, also called the Official Languages Act, assented to on 28 July 1988. Except for the Canadian Human Rights Act – see section 82(2) of the Official Languages Act.

236

Notes to pages 49–59

55 Bill S 3, adopted November 2005. See Commissioner of Official Languages, Annual Report, 2005–2006, 5ff. 56 Letter of 25 January 1972, from Mr Turner to Mr Trudeau. A paper in my possession. 57 Commissioner of Official Languages, Second Annual Report, 1971–1972, 26–34. 58 Ibid., 31. 59 Commissioner of Official Languages, Fifth Annual Report, 1975, 17. 60 Ibid. 61 Robertson, Memoirs, 260. 62 Privy Council Office, A National Understanding. 63 Ibid., 58. 64 See Victor Goldbloom, commissioner of official languages, ‘Language Equality in Canada: A Delicate Balance,’ University of New Brunswick Law Journal, 47 (1998): 179–81, at p. 177. 65 Commissioner of Official Languages, Eighth Annual Report, 1978, 18. 66 Commissioner of Official Languages, Sixth Annual Report, 1976, 3. 67 All but Saskatchewan, Alberta, and British Columbia. 68 Canadian Intergovernmental Conference Secretariat, ‘The Victoria Charter, 1971,’ from Proposals on the Constitution, 1971–1978, a collation by the secretariat. 69 Canadian Charter of Rights and Freedoms, section 20. 70 Ibid., section 33. 71 Commissioner of Official Languages, Annual Report, Special Anniversary Edition, 2004, 43. 72 Ibid., 42. 73 Office of the Commissioner of Official Languages, 2001. 74 Ibid. 75 Ibid., 7 76 Subsequently renamed the Canada Centre of Public Service. 77 Office of the Commissioner of Official Languages, National Report on Service to the Public in English and French, 13. 78 Prime Minister’s Advisory Committee on the Public Service, chaired by Paul Tellier and Donald Mazankowski, Report to the Prime Minister, February 2008. 79 Office of the Commissioner of Official Languages, National Report on Service to the Public, 2. 80 Commissioner of Official Languages, Annual Report, 2006–2007, 49. 81 Office of the Commissioner of Official Languages, National Report on Service to the Public, 45.

Notes to pages 60–70 82 83 84 85 86 87 88 89 90

91 92

93 94 95 96 97 98 99

100 101 102 103 104 105 106 107 108 109 110 111 112

237

Ibid., 11–12. Ibid., 20. Ibid., 26. Michel Bastarache, ed., Language Rights in Canada, 278. In force, 1990. Bastarache, Language Rights in Canada, 336. Ontario, French Language Services Act, RSO 1990, c. F. 32. Based on a conversation between myself and then Chief Justice Laskin. José Woehrling and André Tremblay, ‘Language Rights (Langues Officielles),’ in Beaudoin and Mendes, eds, Canadian Charter of Rights and Freedoms, 1048ff. My translation of the French: ‘ne lui donne pas le droit d’être compris par le tribunal auquel il s’addresse …’ It is worth noting that former Chief Justice Dickson dissented, arguing that the right to plead does entail the right to be understood. ‘une critique pratiquement unanime’; ibid., 1050. Ibid., 1054–5, commenting on the Quebec secession reference (1998), where the court renounced the idea that ‘political compromise’ rights and ‘principled rights’ are in opposition. Ibid., 1053, n74. B & B Commission, Report, Book II: Education. Ibid., 7. Ibid. Ibid., 19. Ibid., 28. Ibid., 87. This description was applied by the commissioners to Ontario, but would be equally accurate in respect of the other provinces, except in some degree in New Brunswick. Ibid., 141. Ibid., 142. Ibid., 151. Ibid., 156. Ibid., 159. Ibid., 170. Ibid., 169. Ibid., 193. Ibid. Ibid., 209. Ibid., 199. Ibid., 230. Ibid., 233.

238 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147

Notes to pages 70–6 Ibid., 235. Ibid., 251. Ibid., 265–6. Ibid., 270. Ibid., 273. Ibid., 288. Ibid., 297. Marc Power and Pierre Foucher, ‘Language Rights and Education,’ in Beaudoin and Mendes, eds, Canadian Charter of Rights and Freedoms, 1101. Ibid., 1102. Ibid., 1103. Ibid., 1099. Ibid., 1096. Ibid., 1104–5, quoting the Supreme Court in Mahé v. Alberta, [1990] 1 S.C.R. 342. Ibid., 1104–5. Bastarache, Language Rights in Canada, 649. Ibid., 652. Power and Foucher, ‘Language Rights and Education,’ 1099. Ibid., 1130, quoting the Supreme Court in Arsenault-Cameron, [2000] 1 S.C.R. 3. Commissioner of Official Languages, Annual Report: Special Anniversary Edition, 2004, 63ff. Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721. Bastarache, Language Rights in Canada, 599–600. Ibid., 600. Commissioner of Official Languages, Annual Report, 2004, 69. Ibid., 47. B & B Commission, Report, Book II: Education, xx. Ibid., 74. Graham Fraser, Sorry, I Don’t Speak French. Commissioner of Official Languages, Annual Report, 2004, 82–3. Power and Foucher, ‘Language Rights and Education,’ 1166. B & B Commission, Report, Book III: The Work World. B & B Commission, Preliminary Report, 21. B & B Commission, Report, Book I: General Introduction, xxii. B & B Commission, Report, Book III, 3. My italics. B & B Commission, Report, Book IV: The Cultural Contribution of the Other Ethnic Groups. B & B Commission, Report, Book III, 3.

Notes to pages 76–87 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165

166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182

239

By and large, the commission was using data from the 1961 census. B & B Commission, Report, Book III, 6. Ibid., 90. Ibid., 108. Internal departmental memorandum dated 9 May 1962. Copy in possession of the author. B & B Commission, Report, Book III, 103. Ibid., 104–6. Mr Howe was then minister of munitions and supply. Ibid., 107. Ibid., 112. Ibid., 116. Ibid., 131. Ibid., 178. Ibid., 208–12. Ibid., 241. Ibid., 263. Ibid., 265. Ibid., 265–7. For many years, automatic translation from French to English was a commonplace; it is still sometimes the case in some areas, for example, French-language correspondence from the public addressed to certain cabinet ministers’ offices. B & B Commission, Report, Book III, 286. Ibid., 292. Ibid., 306. Ibid., 321. Ibid., 333. Ibid., 337. Ibid., 340. Ibid., 469. Ibid., recommendation 42, 525–6. Ibid., 565–7. Round Table on Official Languages in the Workplace, French to Follow, 17. Office of the Commissioner of Official Languages, Walking the Talk: The Language of Work in the Federal Public Service. Ibid., 17. Ibid., 22. Ibid., 28. Ibid. Ibid., 8 and Highlights.

240

Notes to pages 89–97

183 In other words all documentation, electronic ‘paper,’ and other tools of the trade, must be available simultaneously in both languages. That is, ‘French to follow’ must stop, once and for all. 184 Office of the Commissioner of Official Languages, Making It Real – The Two Official Languages at Work, 14. 185 A group of senior government officials and others (including the present author) that was asked to examine and report on the problem of the language of work in the federal government. 186 Round Table on Official Languages in the Workplace, French to Follow, 21. 187 Ibid., 27. 188 Canadian Forces Personnel Newsletter, Issue No. 5, 26 May 2004 189 Ibid., quoting Vice-admiral Greg Jarvis, at the time Assistant Deputy Minister (Human Resources – Military). 190 Office of the Commissioner of Official Languages, Audit of the Language of Work at National Defence Headquarters. 191 Ibid., 11. 192 Ibid. 193 Ibid., 12. 194 Ibid., 19. 195 B & B Commission, Report, Book IV: The Cultural Contribution of the Other Ethnic Groups. 196 Ibid., 4. 197 Ibid., 13. 198 Ibid., 5. 199 Ibid., 9. 200 Ibid., recommendation 1, 64–5. 201 Ibid., 64. 202 Ibid., 68. Again, though it is not mentioned by the commission, for the reasons just given, it is worth noting that Native persons were denied the vote until the beginning of the nineteen sixties. 203 Ibid., 86–7. 204 Ibid., recommendation 2, 87. 205 Ibid., 115. 206 Ibid. 207 Ibid., recommendation 7, 167. 208 Ibid., 146. 209 Ibid., 150. 210 Ibid., 159. 211 Ibid., 181. 212 Ibid., 183. There were of course exceptions, notably the CBC Northern

Notes to pages 97–103

213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236

237 238 239 240 241 242 243 244 245

241

Service – broadcasting in Indian languages and Inuktituk – and the International Service, which broadcast in several languages. Ibid., recommendations 8 and 9, 190–1. Ibid., recommendations 10 and 11, 192 and 196. Ibid., 193–4. Ibid., 195. Ibid., recommendation 12, 196. Ibid., recommendation 13, 196. Now the Museum of Civilization. Ibid., recommendations 14, 15, and 16, 220–2. Joseph Magnet, ‘Multiculturalism and Collective Rights,’ in Beaudoin and Mendes, eds, Canadian Charter of Rights and Freedoms, 1268. B & B Commission, Report, Book IV, recommendation 2, 87. Magnet, ‘Multiculturalism,’ 1269. See inter alia Tom Kent’s article in the Literary Review of Canada, February 2000. Ibid., 1269. B & B Commission, Report, Book IV, recommendation 1, 64–5. Magnet, ‘Multiculturalism,’ 1295. Ibid., 1317. B & B Commission, Report, Book V: The Federal Capital. Special Advisor on Local Government Reform, Local Government Reform in the Regional Municipality of Ottawa-Carleton, 25 November 1999. B & B Commission, Report, Book V, 3. Ibid., 4–6. Ibid., 7. Ibid., 27. See above, note 42. B & B Commission, Report, Book V, 31. Their point of course was that, elsewhere, either English or French was too predominant to permit full equality. Ibid., recommendation 1, 41. Ibid., recommendation 2, 55. Ibid., recommendations 3 and 4, 60–1. Ibid., recommendations 6–10, 63–71. Ibid., 71–2. Ibid., recommendations 11–13, 80–3. Ibid., recommendation 14, 84. Ibid. See recommendation 15, 87–8. Ibid., recommendation 17, 90.

242

Notes to pages 103–24

246 Office of the Commissioner of Official Languages, For Rent: In Search of Bilingual Services from Businesses in Federal Buildings (2004), 1. 247 Formerly Hull. 248 Office of the Commissioner of Official Languages, For Rent (2004), 23. 249 B & B Commission, Report, Book VI: Voluntary Associations; published in the same volume as Book V. 250 Ibid., 134. 251 Ibid., 140–1. 252 Ibid., 158. 253 Apparently discussed, but never adopted, by university students, before the split between the Canadian Union of Students and the Union Générale des Étudiants du Québec. See ibid., 196. 254 Ibid., 193. 255 Ibid., 204. 256 Ibid., 213. 257 Ibid., 216. 258 Ibid., 217. 259 Now the Canadian Heritage Department. 260 Ibid., 220. 261 B & B Commission, Preliminary Report, 13. 262 See above, page 63. 263 Speech from the Throne, 16 October 2007 (available at www.peo-bep. gc.ca). Part Three: Human Rights 1 2 3 4 5 6

7 8 9

Sophocles, Antigone, lines 455–8. The United States Declaration of Independence, paragraph 2. United Nations Charter, article 55. It is worth noting that more than 800 NGOs were also present at the Vienna Conference, resulting in a total of over 7,000 participants. Article 5 of the Vienna Declaration. See Dale Gibson, ‘Enforcement of the Canadian Charter of Rights and Freedoms,’ in Beaudoin and Mendes, eds, Canadian Charter of Rights and Freedoms, 1323: ‘It is a vain thing to imagine a right without a remedy.’ (Ashby v. White (1703) 92 E.R. 126 1 Sm LC (13th ed.) 253,277, per Holt J.) Doucet-Boudreault v. Nova Scotia (Minister of Education) (2003) D.I.R. (4th) 577. George Bain, Maclean’s, 22 December 1992. Margaret Wente, ‘Open Mike with Avery Haines,’ Globe and Mail, 20 Janu-

Notes to pages 124–36

243

ary 2000. 10 Doug Saunders, ‘The “Eurabia” Myth Deserves a Debunking,’ Globe and Mail, 20 September 2008. 11 Richard Moon, Report to the Canadian Human Rights Commission Concerning Section 13 of the Canadian Human Rights Act and the Regulation of Hate Speech on the Internet, 17 October 2008. 12 Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143. 13 Pearl Eliadis, as quoted in Joseph Brean, ‘Human Rights Issues Open to Vigorous Debate,’ National Post, 21 June 2008. 14 Beverley McLachlin, ‘Canada’s Coming of Age,’ in Magnet, Beaudoin, Gall, and Manfredi, eds, The Canadian Charter of Rights and Freedoms, 354–5. 15 Cf ‘Two Concepts of Liberty’ by Isaiah Berlin, in Four Essays on Liberty (1969), where Berlin develops the distinction between positive and negative liberty, a similar dichotomy. 16 More or less the same arguments were used in the last century to show why the effort to end child labour was ‘unrealistic.’ 17 David P. Forsythe, The Internationalization of Human Rights, 11. 18 United Nations, International Covenant on Economic, Social and Cultural Rights, articles 6 and 7. 19 Justice John McCLung of the Alberta Court of Appeal, in the 1996 Vriend judgment. 20 Walter Tarnopolsky, then of the Faculty of Law, University of Windsor, in ‘The Iron Hand in the Velvet Glove,’ Canadian Bar Revue, 16 (December 1968). 21 ‘Nous savons bien que les principes proclamés ne valent que s’ils conaissent une application concrète. Les mécanismes de suivi … sont donc essentiels, faute de quoi la cause des droits de l’homme risquerait de n’être qu’un catalogue de principes abstraits et sans réalité.’ Document in possession of the author. 22 Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513. 23 The Quebec Charter is an exception among provincial statutes in that it also deals with various fundamental and political rights. 24 For example, the Ontario Fair Employment Practices Act, 1951, and the Fair Accommodation Act, 1954. 25 Ellen Anderson, Judging Bertha Wilson, 144. 26 William Black and Lynn Smith, ‘Equality Rights,’ in Beaudoin and Mendes, eds, Canadian Charter of Rights and Freedoms, 965. 27 Diane Pothier, ‘The Significance of the Entrenchment of Equality Rights,’ in

244

28

29 30 31

32

33 34 35 36 37 38 39 40

41 42 43

44 45

Notes to pages 136–45 Magnet, Beaudoin, Gall, and Manfredi, eds, The Canadian Charter of Rights and Freedoms, 65ff. R v. Drybones, [1970] S.C.R. 282, which found that section 94(b) of the Indian Act (which prevented ‘Indians’ from being intoxicated off a reserve) was inoperative because it violated the Canadian Bill of Rights. Christie v. York, [1940] S.C.R. 139. Murdoch v. Murdoch, [1975] 1 S.C.R. 423; and Rathwell v. Rathwell, [1978] 2 S.C.R. 436. Earlier on, in 1982, section 33 was used in Quebec as a protest against the Charter and patriation to apply to all Quebec legislation for a period of five years. Justice Rosalie Abella, ‘Public Opinion, the Courts and Rights: The Charter in Context,’ in Magnet, Beaudoin, Gall, and Manfredi, eds, The Canadian Charter of Rights and Freedoms, 431. Bliss v. Attorney General of Canada, [1979] 1 S.C.R. 183. Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219. Bhinder v. CN, [1985] 2 S.C.R. 561. Central Alberta Dairy Pool v. Alberta (Human Rights Commission), [1990] 2 S.C.R. 489. McKinney v. University of Guelph, [1990] 3 S.C.R. 229. Société des Acadiens et Acadiennes du Nouveau Brunswick v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549. R. v. Beaulac, [1999] 1 S.C.R. 768. The reference is to the Keegstra, Andrews, and Taylor cases, and additionally the Zündel case. See Irwin Cotler, ‘Hate Speech,’ in Beaudoin and Mendes, eds, Canadian Charter of Rights and Freedoms, 1404ff. Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. For example, Action Travail des Femmes and Robichaud. France, it should be noted has other institutions aimed at taking action against discrimination, particularly La Haute Autorité de Lutte contre les Discriminations et pour l’Egalité (HALDE). The High Authority was created in December 2004, with a mandate to combat discrimination on various grounds and to promote equality. It has the powers required to investigate, mediate, and, if necessary, refer any potential criminal action to the public prosecutor. See, for example, my last Annual Report, in 1996, headlined on page 1 of the Globe and Mail as ‘Yalden Flunks Liberals on Gay Rights’ (20 March 1996). British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3. Best known by the name of the complainant, Tawney Meiorin.

Notes to pages 146–57

245

46 Vriend v. Alberta, [1998] 1 S.C.R. 493. 47 Ibid. 48 Often called ‘gender discrimination.’ The Canadian Human Rights Act, however, speaks of discrimination on grounds of ‘sex,’ and, as a result, I use that term. 49 Edwards v. Canada (Attorney General), [1928] S.C.R. 276, decided on appeal by the Judicial Committee of the Privy Council, 18 October 1929, [1930]A. C. 124. 50 Bertha Wilson, appointed 4 March 1982. 51 And even then requiring them, for some years afterwards, to resign if they married, ostensibly because they could not be posted abroad. 52 Royal Commission on Equality in Employment, Equality in Employment, A Royal Commission Report (Commissioner: Judge Rosalie Silberman Abella), 25. 53 Hansard, 23 January 1969, 4723. 54 Canadian Human Rights Commission, Annual Report, 1979, 8–10. 55 Ibid., 10. 56 Haig v. Canada, [1992] 9 O. R. (3d) 495 (Ont. C.A.). 57 Egan v. Canada, [1995] 2 S.C.R. 513. 58 Section 2, An Act Respecting Certain Aspects of Legal Capacity for Marriage for Civil Purposes; short title, the Civil Marriage Act, adopted 20 July 2005. 59 Sylvain Larocque, Gay Marriage: The Story of a Canadian Social Revolution. 60 Research commissioned by the Royal and Sun Alliance, a British insurance group, regarding 1,300 people in paid employment surveyed by YouGov in May 2006. 61 According to the same source, ‘A seventh (14 per cent) of young people, under 25 years old, felt discriminated against in the workplace due to their age and said their progression had been hindered because they were perceived as too young to take on extra responsibility. This compares to a tenth (12 per cent) of older people, over 45 years old, who felt discriminated against.’ 62 Canadian Foundation for Children, Youth and the Law v. Canada, [2004] 1 S.C.R. 76, 2004 S.C.C. 4. Justice Binnie (in part) and Justices Arbour and Deschamps dissented. 63 Ibid., 3. 64 Gosselin v. Québec (Attorney General), SCC 84, [2002] 4 S.C.R. 429. It should be noted that there were dissenting opinions on various aspects of this case. 65 Canadian Human Rights Commission, Annual Report, 2005, 20. 66 See Morley Gunderson, Banning Mandatory Retirement: Throwing Out the

246

67 68 69 70 71 72 73

74 75 76 77

78 79 80 81 82 83 84 85 86

87 88 89 90 91 92 93 94

Notes to pages 157–69

Baby with the Bathwater, C.D. Howe Institute Backgrounder No. 79, March 2004. As she then was. Dickason v. University of Alberta, [1992] 2 S.C.R. 1103. Ontario, for example, ended the practice in December 2006. New York Times, 28 September 2008. Canadian Human Rights Commission, Annual Report, 1990, 40. Statistics Canada, Participation and Activity Limitation Survey, 2006. Canadian Human Rights Commission, Annual Report, 2007, 34. The commission listed 298 out of 840 signed complaints, or 36 per cent, on grounds of disability. Canadian Human Rights Commission, Annual Report, 1980, 55. Royal Commission on Equality in Employment, Report, 39. Ibid., 42. The U.N. Convention on the Rights of the Disabled and its Optional Protocol entered into force on 3 May 2008; it establishes a twelve-person committee to monitor the Convention and to take complaints. Paragraph 2, Preamble, Universal Declaration of Human Rights. Canadian Human Rights Commission, Annual Report 1980, 17–18. Complaints on grounds of ‘race’ and ‘colour’ came to some 20 per cent in 1980 and 15 per cent in 2007. 17 January 2007. Complaints on these grounds came to 8 per cent in 1980 and 12 per cent in 2007. 31 January 2007. See Canadian Human Rights Commission, Annual Report, 2005, 11, citing Gian Sangha v. MacKenzie Valley Land and Water Board, [2006] CHRT 9. Canadian Human Rights Commission, Annual Report, 1995, 40. See, for example, the Keegstra and John Ross Taylor cases, mentioned above, and the case of Malcolm Ross v. Canada decided by the U.N. committee on 18 October 2000. The Canada Act, 1982, Schedule B, section 27. Joseph Magnet, ‘Multiculturalism and Collective Rights,’ in Beaudoin and Mendes, eds, Canadian Charter of Rights and Freedoms, 1266. Ibid., 1267. The Canadian Multiculturalism Act, 1988, section 5. Ibid., section 9. Employment Equity Act, 1986, revised 1995. Ibid., section 2. Le Figaro magazine, February 1997. My translation. In the original, ‘Immi-

Notes to pages 170–7

95 96 97

98 99

100 101 102 103

104

105

106

107 108 109

110 111 112

247

grer, ce n’est pas changer de lieu géographique, c’est changer d’histoire … Quand on immigre, on choisit pour ses enfants une nouvelle patrie, donc une nouvelle histoire … Quand on change de lieu en voulant garder son passé national d’avant … on n’immigre pas.’ Martin Baldwin-Edwards of the Mediterranean Migration Observatory, as quoted in the International Herald Tribune, 29 June 2006. Economist, 19–25 August 2006, 11. To be fair, I should also record that the Economist refers in the same article to the arrest of seventeen people in Toronto, in June 2006, on allegations of terrorist plotting. McLachlin, ‘Canada’s Coming of Age,’ 354. Cited in Jack Jedwab, ‘Canadian Multiculturalism before and after the Charter,’ in Magnet, Beaudoin, Gall, and Manfredi, eds, The Canadian Charter of Rights and Freedoms, 344. Ibid. Writing in R. v. Zündel, [1992] 2 S.C.R. 731, cited in Black and Smith, ‘Equality Rights,’ 1285. U.N. Human Rights Committee, General Comment No. 28, paragraph 24, adopted by the committee in March 2000. See, for example, the front-page photograph in the Globe and Mail, 23 October 2006, and the accompanying caption: ‘The Muslim Veil – Igniting Fear in Western Societies.’ In an article on the Muslim dress code, in the 18 November 2006 edition of the Ottawa Citizen, Maria Kubacki observes that it is so rare that ‘the Muslim women I talk to have to ask friends of friends if they know a niqabi.’ In yet another article the same day, the Globe and Mail, citing the ‘Dutch Muslim community,’ reports that, with a population of some one million Muslims, there are only a ‘minuscule’ number of women in Holland wearing the burkha or niqab, probably ‘fewer than fifty.’ Whether it causes ‘undue hardship’ is the standard test in human rights law in determining whether a measure designed to accommodate a minority is reasonable. Multani v. Commission Scolaire Marguerite-Bourgoys, [2006] 1 S.C.R. 256. La Presse, 22 September 2006. Quebec, Report of the Consultation Commission on Accommodation Practices Related to Cultural Differences, 2008 (Gérard Bouchard and Charles Taylor, co-chairs) (hereafter Bouchard-Taylor Report). Bouchard-Taylor Report, abridged version, 42. Ibid., 43. Ibid., 44, points 5, 6, and 8.

248 113 114 115 116 117 118 119

120 121

122

123

124

125 126

127

128 129

Notes to pages 177–89 Ibid., 45. Canadian Human Rights Act, article 2, ‘Purpose of the Act’; my italics. Canadian Human Rights Commission, Annual Report, 1996, 62. Royal Commission on the Status of Women, Report of the Royal Commission on the Status of Women, vii, quoted in Anderson, Judging Bertha Wilson, 74. Royal Commission on Equality in Employment, Report. Ibid., i, extract from the order-in-council establishing the commission. Chief Justice Beverley McLachlin, ‘Democracy and Rights: A Canadian Perspective,’ speech to the Institute of Advanced Legal Studies, Jerusalem, 19 December 2000, 17. Broken down by region, occupational classification, and so forth, to obtain a more sophisticated reading. Article 2, ILO Convention No. 100, Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value, adopted by the General Conference of the ILO at its 34th Session, 29 June 1951. The CESCR and the HRC, reviewing, respectively, Canada’s performance vis-à-vis the Covenant on Economic, Social and Cultural Rights in October 2005, and the Covenant on Civil and Political Rights, in May 2006. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010., cited in Bradford Morse, ‘Aboriginal and Treaty Rights,’ in Beaudoin and Mendes, eds, Canadian Charter of Rights and Freedoms, 1171. Eight times the national average; in Saskatchewan, 1,600 per 100,000, as compared with a non-Aboriginal rate of 48. See Morse, ‘Aboriginal and Treaty Rights,’ 1195. Keith Banting, Thomas J. Courchene, and Leslie F. Seidle, eds, Belonging? Diversity, Recognition and Shared Citizenship in Canada, 268. Morse, in ‘Aboriginal and Treaty Rights,’ 1192–3, comments that ‘The growing aboriginal population is increasingly becoming urbanized.’ Twenty years ago, the author says, ’70% of status Indians lived on reserves, while in 2002, this number had decreased to 57.2%.’ DIAND also estimates that the number of status Indians registered will have grown from 323,782 in 1981 to ‘over 800,000 by the end of this decade.’ Together with the United States, Australia, and New Zealand, with 143 states voting in favour and 11 abstentions. More recently, Australia has endorsed the declaration, and the United States and New Zealand have also indicated that they are reconsidering. Justice McLachlin, as she then was. Blueberry Indian Band v. Canada (DIAND), [1995] 4 S.C.R. 344, cited in Morse, ‘Aboriginal and Treaty Rights,’ 1210.

Notes to pages 189–98

249

130 Morse, ‘Aboriginal and Treaty Rights,’ 1222. 131 Chief Justice Lamer in Delgamuukw v. British Columbia. 132 Alan C. Cairns, Citizens Plus: Aboriginal Peoples and the Canadian State, 12. The term ‘Citizens Plus’ was coined originally in the Hawthorn Report, a study on which Cairns worked in the 1960s (H.B. Hawthorn, ed., A Survey of Contemporary Indians of Canada, 2 vols, [Ottawa: Queen’s Printer, 1966–7]). 133 Cairns, Citizens Plus, 5. 134 Ibid., 4. 135 Quoted in the Globe and Mail, 12 June 2008. 136 Globe and Mail, 22 October 2008. 137 Canadian Human Rights Review Panel, Report of the Canadian Human Rights Review Panel, 21 June 2000, 133. 138 Bill C-30, which received Royal Assent on 18 June 2008. 139 According to federal statistics (government release on the Kelowna Accord, 25 November 2005), ’44 per cent of Aboriginal people aged 20 through 24 have less than high school education. The comparative figure for Canada as a whole is 19 per cent.’ 140 John Richardson, ‘Culture Matters, but … Explaining Trends among Urban Aboriginal People, (a commentary on Evelyn J. Peters, First Nations and Métis People and Diversity in Canadian Cities),’ in Banting, Courchene, and Seidle, eds, Belonging?, 248. 141 Ibid., 260. 142 Roy McMurtry, ‘Accommodating Canada’s Diversity,’ in Banting, Courchene, and Seidle, eds, Belonging?, 92. 143 Royal Commission on Aboriginal Peoples, Report, vol. 5, 18–19. 144 Cf Banting, Courchene, and Seidle, eds, Belonging?, ‘Final Thoughts,’ 680: ‘Outside of the North, progress on the agenda of title to land has been painfully slow; and the record on economic and social well-being of Aboriginal people is a national failure.” Part Four: Human Rights and International Relations 1 In addition to the Human Rights Committee, they are: Committee on Economic, Social and Cultural Rights; Committee on the Elimination of Racial Discrimination; Committee on the Elimination of Discrimination against Women; Committee against Torture; Committee on the Rights of the Child; Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families; and Committee on the Rights of the Disabled.

250

Notes to pages 199–207

2 The commission was created by the Committee on Economic, Social and Cultural Rights (ECOSOC), resolution 5 (1), 1946. Its members were elected on a regional basis: 15 from African states; 12 from Asia; 5 from Eastern Europe; 11 from Latin America and the Caribbean; and 10 from the Western Europe and Others grouping. Canada was a member for several terms. 3 The United States, Israel, the Marshall Islands, and Palau. There were also three abstentions and seven countries absent. 4 The new council comprises 13 countries from the African group; 13 Asian; 6 Eastern European; 8 Latin American and Caribbean; and 7 Western European and Other. 5 Amnesty International, ‘UN Human Rights Council: Member Governments Must Do More to Build an Effective Council,’ 11 October 2006. 6 Human Rights Watch, ‘How to Put the UN Rights Council Back on Track,’ The Forward, 3 November 2006. 7 Thomas Buergenthal, International Human Rights, 82. 8 Much of what follows is set out in terms of the Human Rights Committee, with which I am most familiar. However, I believe it applies to the treaty body system as a whole. 9 I say ‘supposed to,’ because the composition remains skewed in favour of Western and Western-oriented states, and Latin Americans. 10 See Alston, Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments. Although it dates back to 1996 (UN Doc. E/CN.4/1997/74, 27 March 1996), it is still one of the most comprehensive analyses available. 11 Anne Bayevsky, The UN Human Rights System: Universality at the Crossroads, April 2001. It is worth noting that Mrs Elizabeth Evatt’s observations in ‘Ensuring Effective Supervisory Procedures: The Need for Resources,’ in Philip Alston and James Crawford, eds, The Future of UN Human Rights Monitoring, 461ff, cover all the essential points, and provide in addition a valuable practitioner’s perspective. 12 Andrew Clapham, ‘UN Human Rights Reporting Procedures: An NGO Perspective,’ in Alston and Crawford, eds, The Future of UN Human Rights Monitoring, 175. 13 Ibid., 195. 14 Markus Schmidt, ‘Servicing and Financing Human Rights Supervisory Bodies,’ in Alston and Crawford, eds, The Future of UN Human Rights Monitoring, 486. 15 Ibid., 488. 16 Ibid., 484.

Notes to pages 208–24

251

17 At the time of writing, it is five. 18 On the other hand, the twenty-three member committee dealing with the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) has often been composed entirely of women, which arguably is not satisfactory either. 19 Craig Scott, ‘Bodies of Knowledge: A Diversity Promotion Role for the UN High Commissioner for Human Rights,’ in Alston and Crawford, eds, The Future of UN Human Rights Monitoring, 420. 20 And that the present author, as a non-lawyer, might be said to have his own biases. 21 Justice Bertha Wilson, writing for the majority in the Bill 30 Reference, 1987, regarding the extension of public funding of Roman Catholic schools to Grades 10 to 13. The matter was revisited in 1996 in Adler v. Ontario, [1996] 3 S.C.R. 609, which reconfirmed the court’s view. It should be noted, however, that one of those in dissent in the latter case was the present chief justice (Chief Justice McLachlin). 22 Excerpt from a speech by Lamer in 1997 at York University. 23 See for example Justice l’Heureux-Dubé in R. v. Ewanchuk, [1999] 1 S.C.R. 330: ‘Our Charter is the primary vehicle through which international human rights achieve a domestic effect …’ 24 United States v. Burns, [2001] 1 S.C.R. 283. 25 Justice Pigeon, in Daniels v. White and The Queen [1968] S.C.R. 517. 26 Minister of State for Immigration and Ethnic Affairs v. Ah Hin Teoh [1995] HCA 20, (1995) 128 ALR 353. 27 Standing Senate Committee on Human Rights, Promises to Keep: Implementing Canada’s Human Rights Obligations, December 2001. 28 Statement by the Hon. Maxime Bernier, 25 January 2008. 29 Fred McMahon, in the National Post, 7 August 2002, A11. 30 Editorial, National Post, 8 August 2002, A17. 31 See article 2 of the International Covenant on Civil and Political Rights. Part Five: Summing Up and Conclusions 1 And not until 1985 for section 15 relating to equality rights

This page intentionally left blank

Select Bibliography

Anyone who is interested in language rights in Canada, especially in an overall perspective, should turn first of all to the six volumes of the Report of the Royal Commission on Bilingualism and Biculturalism. A ‘substantial and complex picture, historically, legally, and in terms of their effect on everyday Canadian life,’ as I have called them above, they more than repay reading, even many years after the events with which they are mostly concerned. There is no similar starting point in the case of human rights. As a result, in order to get a broad outlook on thinking since the Second World War, one would do well to begin with international sources, commencing with the United Nations Bill of Rights, which comprises the Universal Declaration of Human Rights and the two major covenants, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. More specifically Canadian material should come next, beginning with the Canadian Charter of Rights and Freedoms, the Official Languages Act, and the Canadian Human Rights Act. And, particularly for the purposes of the present study, the annual reports to Parliament of the official languages and human rights commissioners. Finally, one should turn to various parliamentary and government recommendations and studies in both areas that may serve to shed further light on what Canadians have been trying to achieve over the last forty-odd years, and the accomplishments and failures that I have set out above. All these are recorded in the brief bibliographical note that follows, along with various studies, assessments, and commentaries on language and human rights problems that I have looked through in the course of preparing this study.

254

Select Bibliography

1 Language Rights Bastarache, Michel, ed. Language Rights in Canada. 2nd ed. Cowansville, QC: Les Éditions Yvon Blais, Inc., 2004. Beaudoin, Gérald, and Errol Mendes, eds. Canadian Charter of Rights and Freedoms. 4th ed. Markham, ON: LexisNexis Canada Inc., 2005. Canada. Canadian Charter of Rights and Freedoms. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, 17 April 1982. – Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.). Commissioner of Official Languages. Annual Reports of the Commissioner of Official Languages, 1971–2007. Ottawa: Information Canada, 1971–6; Minister of Supply and Services; Minister of Public Works and Government Services, 1976–2008. Fraser, Graham. Sorry I Don’t Speak French. Toronto: McClelland and Stewart, Douglas Gibson Books, 2006. Hurtubise-Loranger, Élise. Official Languages and Parliament. Ottawa: Library of Parliament, 2006. MacMillan, Michael. The Practice of Language Rights in Canada. Toronto: University of Toronto Press, 1998. Magnet, Joseph. ‘Multiculturalism and Collective Rights.’ In Beaudoin and Mendes, eds, Canadian Charter of Rights and Freedoms, 4th ed., 1261–1317. Magnet, Joseph, Gerald Beaudoin, Gerald Gall, and Christopher Manfredi, eds. The Canadian Charter of Rights and Freedoms: Reflections on the Charter after Twenty Years. Markham, ON: LexisNexis, 2003. New Brunswick, Official Languages Act. S.N.B. 2002, c. O-0.5. Office of the Commissioner of Official Languages. Audit of the Language of Work at National Defence Headquarters. Ottawa: Minister of Public Works and Government Services, February 2006. – For Rent: In Search of Bilingual Services from Businesses in NCR Federal Buildings. Ottawa: Ministry of Public Works and Government Services, March 2004. – For Rent: In Search of Bilingual Services from Businesses in NCR Federal Buildings – Follow-up. Ottawa: Minister of Public Works and Government Services, February 2006. – Making It Real: Promoting Respectful Co-existence of the Two Official Languages at Work. Ottawa: Minister of Public Works and Government Services, April 2005. – National Report on Service to the Public in English and French: Time for a Change in Culture. Ottawa: Minister of Public Works and Government Services, April 2001.

Select Bibliography

255

– Walking the Talk: Language of Work in the Federal Public Service. Ottawa: Minister of Public Works and Government Services, March 2004. Ontario. French Language Services Act. RSO 1990 c. F. 32. Paradis, J.B. ‘Language Rights in a Multicultural State: A Comparative Study.’ Canadian Bar Review 48 (1970): 651. Power, Marc, and Pierre Foucher. ‘Language Rights and Education.’ In Beaudoin and Mendes , eds, Canadian Charter of Rights and Freedoms, 4th ed., 1095–1167. Prime Minister’s Advisory Committee on the Public Service (co-chairs Paul Tellier and Donald Mazankowski). Report to the Prime Minister. Ottawa: February 2008. Privy Council Office. A National Understanding: Statement of the Government of Canada on the Official Languages Policy: The Official Languages of Canada. Ottawa: 1977. Quebec. Charte de la Langue Française. R.S.Q., 1977 c. C-11. Robertson, Gordon. Memoirs of a Very Civil Servant. Toronto: University of Toronto Press, 2000. Round Table on Official Languages in the Workplace. French to Follow? Revitalizing the Official Languages in the Workplace. Ottawa: Canadian Centre for Management Development, 2004. Royal Commission on Bilingualism and Biculturalism. A Preliminary Report of the Royal Commission on Bilingualism and Biculturalism. Ottawa: Queen’s Printer, 1 February 1965. – Report of the Royal Commission on Bilingualism and Biculturalism, General Introduction; Book I: The Official Languages. Ottawa: Queen’s Printer, 8 October 1967. – Report of the Royal Commission on Bilingualism and Biculturalism, Book II: Education. Ottawa: Queen’s Printer, 23 May 1968. – Report of the Royal Commission on Bilingualism and Biculturalism, Book III: The Work World. Ottawa: Queen’s Printer, 19 September 1969. – Report of the Royal Commission on Bilingualism and Biculturalism, Book IV: The Cultural Contribution of the Other Ethnic Groups. Ottawa: Queen’s Printer, 19 October 1969. – Report of the Royal Commission on Bilingualism and Biculturalism, Book V: The Federal Capital. Ottawa: Queen’s Printer, 14 February 1970. – Report of the Royal Commission on Bilingualism and Biculturalism, Book VI: Voluntary Associations. Ottawa: Queen’s Printer, 14 February 1970. Special Advisor on Local Government Reform. Local Government Reform in the Regional Municipality of Ottawa-Carleton. Ottawa: 25 November,1999. Woehrling, José, and André Tremblay. ‘Language Rights (Langues Officielles).’

256

Select Bibliography

In Beaudoin and Mendes, eds, Canadian Charter of Rights and Freedoms, 4th ed., 1027–91. 2 Human Rights Adams, Michael. Unlikely Utopia. Toronto: Viking Canada, 2007. Alberta. Human Rights, Citizenship and Multiculturalism Act. R.S.A. 2000, c. H-14. Anderson, Ellen. Judging Bertha Wilson. Toronto: University of Toronto Press, 2001. Banting, Keith, Thomas J. Courchene, and Leslie F. Seidle, eds. Belonging? Diversity, Recognition and Shared Citizenship in Canada. Montreal: Institute for Research on Public Policy, 2007. Baudoin, J.-L., et al., eds. Mélanges Jean Beetz. Montreal: Éditions Thémis, Inc., 1995. Berlin Isaiah. ‘Two Concepts of Liberty.’ In Four Essays on Liberty. Oxford: Oxford University Press, 1969. Bhatia, G.S., J.S. O’Neil, G.L. Gall, and P.D. Bendin, eds. Peace, Justice and Freedom: Human Rights Challenges for the New Millennium. Edmonton: University of Alberta Press, 2000. Black, William, and Lynn Smith. ‘Equality Rights.’ In Beaudoin and Mendes, eds, Canadian Charter of Rights and Freedoms, 4th ed., 927–1024. British Columbia. Human Rights Code. RSBC 1996, c. 210. Cairns, Alan C. Citizens Plus: Aboriginal Peoples and the Canadian State. Vancouver: University of British Columbia Press, 2000. Canada. Civil Marriage Act. S.C. 2005, c. 33. – Canadian Charter of Rights and Freedoms. Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. – Canadian Human Rights Act. R.S.C. 1985, c. H-6. – Canadian Multiculturalism Act. R.S.C. 1985, c. 24 (4th Supp.). – Employment Equity Act. S.C. 1995, c. 44. Canadian Human Rights Commission. Annual Reports to Parliament, 1977– 2007. Ottawa: Minister of Supply and Services; Minister of Public Works and Government Services, 1977–2007. Canadian Human Rights Review Panel. Report of the Canadian Human Rights Review Panel. 21 June 2000. Canadian Intergovernmental Conference Secretariat, ‘The Victoria Charter, 1971.’ In Proposals on the Constitution, 1971–1978. Ottawa: Author, 1978. Forsythe, David. The Internationalization of Human Rights. Lexington, MA: Lexington Books, 1991.

Select Bibliography

257

Glendon, M.A. A World Made New, Eleanor Roosevelt and the Universal Declaration of Human Rights. New York: Random House, 2001. Gunderson, Morley. Banning Mandatory Retirement: Throwing Out the Baby with the Bathwater. C.D. Howe Institute Backgrounder No. 79, March 2004. Humphrey, J., and R.St.J. MacDonald. The Practice of Freedom: Canadian Essays on Human Rights and Fundamental Freedoms. Toronto: Butterworth and Co., Ltd., 1979. Jedwab, Jack. ‘Canadian Multiculturalism before and after the Charter.’ In Magnet, Beaudoin, Gall, and Manfredi, eds, The Canadian Charter of Rights and Freedoms, 309–44. Kymlicka, Will. Multicultural Odysseys: Navigating the New International Politics of Diversity. Oxford: Oxford University Press, 2007. Larocque, Sylvain. Gay Marriage: The Story of a Canadian Social Revolution. Toronto: James Lorimer, 2006. Magnet, Joseph, Gérald Beaudoin, Gerald Gall, and Christopher Manfredi, eds. The Canadian Charter of Rights and Freedoms: Reflections on the Charter after Twenty Years. Markham, ON: LexisNexis, 2003. McMurtry, Roy. ‘Accommodating Canada’s Diversity.’ In Banting, Courchene, and Seidle, eds, Peace, Justice and Freedom, 87–94. Morse, Bradford. ‘Aboriginal and Treaty Rights.’ In Beaudoin and Mendes, eds, Canadian Charter of Rights and Freedoms, 4th ed., 1171–1257. Ontario. Fair Accommodation Practices Act. S.O. 1954 c. 28. – Fair Employment Practices Act. S. 1951, c.24. – Human Rights Code. R.S.O. 1990, c. H.19. Pothier, Diane. ‘The Significance of the Entrenchment of Equality Rights.’ in Magnet, Beaudoin, Gall, and Manfredi, eds, The Canadian Charter of Rights and Freedoms, 65–79. Quebec. Consultation Commission on Accommodation Practices Related to Cultural Differences (Co-chairs: Gérard Bouchard and Charles Taylor). Rapport de la Commission de Consultation sur les Pratiques de’Accomodement Reliées aux Différences Culturelles [Report of the Consultation Commission on Accommodation Practices Related to Cultural Differences]. Québec: Gouvernement du Québec, 2008. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples. 5 vols. Ottawa: Minister of Supply and Services, 1996. Royal Commission on Equality in Employment (Commissioner: Judge Rosalie Abella). Report of the Royal Commission on Equality in Employment. Ottawa: Minister of Supply and Services, 1984. Royal Commission on the Status of Women. Report of the Royal Commission on the Status of Women. Ottawa: Queen’s Printer, 1970.

258

Select Bibliography

Sharpe, Robert, and Kent Roach. Brian Dickson: A Judge’s Journey. Toronto: University of Toronto Press, 2003. Standing Senate Committee on Human Rights. Report of the Standing Senate Committee on Human Rights: Promises to Keep: Implementing Canada’s Human Rights Obligations. Ottawa: Senate of Canada, December 2001. Statistics Canada. Participation and Activity Limitation Survey, 2006. Ottawa: Author, December 2007. 3 Human Rights and International Relations Alston, Philip. Effective Functioning of Bodies Established Pursuant to United Nations Human Rights Instruments. Report to the Secretary General. UN Doc. E/CN.4/1997/74. 27 March 1996. Alston, Philip, and James Crawford, eds. The Future of UN Human Rights Monitoring. Cambridge: Cambridge University Press, 2000. Amnesty International. ‘UN Human Rights Council: Member Governments Must Do More to Build an Effective Council.’ Amnesty International Public Statement, 11 October 2006. Available at http://www.ishr.ch/lca/statements_council/otherngos/Amnestycouncil.pdf. Bayevsky, Anne. The UN Human Rights System: Universality at the Crossroads. Report to the UN Commissioner for Human Rights. April 2001. Available at www.bayevsky.com/report/finalreport.pdf. Buergenthal, Thomas. International Human Rights. St Paul, MN: West Publishing Co., 1995. Clapham, Andrew. ‘UN Human Rights Reporting Procedures: An NGO Perspective.’ In Alston and Crawford, eds, The Future of UN Human Rights Monitoring, 175–98. Cotler, Irwin, and Pearl Eliadis, eds. International Human Rights Law, Theory and Practice. Montreal: The Canadian Human Rights Foundation, 1992. Glendon, M.A. A World Made New, Eleanor Roosevelt and the Universal Declaration of Human Rights. New York: Random House, 2001. Human Rights Watch. ‘How to Put the UN Rights Council Back on Track.’ The Forward, 3 November 2006. Available at http://www.forward.com/articles. Joseph, M., J. Schultz, and M. Castan. The International Covenant on Civil and Political Rights. Oxford: Oxford University Press, 2000. Kälin, W., L. Müller, and J. Wyttenbach. The Face of Human Rights. Baden, Switzerland: Lars Müller Publishers, 2004. Magnet, Joseph, Gérald Beaudoin, Gerald Gall, and Christopher Manfredi, eds. The Canadian Charter of Rights and Freedoms, Reflections on the Charter after Twenty Years. Markham, ON: LexisNexis, 2003.

Select Bibliography

259

Novak, M. The UN Covenant on Civil and Political Rights. Kehl am Rhein, Germany: N.P. Engel, 1993. Schmidt, Markus. ‘Servicing and Financing Human Rights Supervisory Bodies.’ In Alston and Crawford, eds, The Future of UN Human Rights Monitoring, 481–500. Scott, Craig. ‘Bodies of Knowledge: A Diversity Promotion Role for the UN High Commissioner for Human Rights.’ In Alston and Crawford, eds, The Future of UN Human Rights Monitoring, 403–38. United Nations. Human Rights – A Compilation of International Instruments. 2 vols. New York and Geneva: United Nations Centre for Human Rights, 1994. – Human Rights Conventions (available in United Nations, Human Rights – A Compilation of International Instruments) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. June 1987. Convention on the Elimination of All Forms of Discrimination against Women. December 1979. Convention on the Rights of the Child. September 1990. Convention on the Rights of Persons with Disabilities. May 2008. International Convention on the Elimination of Racial Discrimination. January 1969. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. July 2003. International Covenant on Civil and Political Rights. March 1976. International Covenant on Economic, Social and Cultural Rights. January 1976. – ILO Convention No. 100, Concerning Equal Remuneration for Men and Women Workers for Work of Equal Value. Adopted by the General Conference of the ILO at its 34th Session, 29 June 1951. – Universal Declaration of Human Rights. Vienna, 1948. – Vienna Declaration and Programme of Action on Human Rights. Vienna, June 1993.

This page intentionally left blank

Index

Abella, Justice Rosalie, 139, 148, 159, 180, 182 Aboriginal rights, 186–96; Canadian Human Rights Act (s. 67), 192; Drybones case, 136; Indian Act, 193; indigenous peoples: international phenomenon, 188; ombudsman for Aboriginal affairs, 195; participation by Aboriginal peoples, 193; residential schools, 191–2; Royal Proclamation (1763), 185; self-determination and self-governance, 189ff; selfgovernment and financial dependence, 190 Adam, Dyane, 57, 59, 60, 73, 75, 91 Alston, Philip, 204 Arbour, Louise, 202 B and B Commission, 26–30. See also RCBB Bastarache, Justice Michel, 63 Bayevsky, Anne, 205 Beetz, Justice Jean, 25 bilingual districts, 43, 49ff; federal, 49–52, 109; federal ministers’ misgivings, 50; in Finland, 41, 52;

provincial government reactions, 50 Bilingual Districts Advisory Board, 50; Second Advisory Board, 51 bilingual labelling, 64–5 bilingual positions, public service, 59–60, 83ff Bill 101, La Charte de la Langue Française, 20, 26, 63, 74, 110 Bouchard-Taylor Commission, 176–8 British North America Act (s.133), 44 Buergenthal, Thomas, 201 Burns, General E.L.M., 12 Cadieux, Marcel, 16, 17 Cairns, Alan, 190–1 Canadian Bar Association, 217 Canadian Bill of Rights (1960), 135–6 Canadian Charter of Rights and Freedoms (1982), 54ff, 134; section 33, ‘notwithstanding clause,’ 137–8 Canadian Human Rights Act (CHRA), 25, 133–4, 152–3; section 13, 126 Canadian Human Rights Commission (CHRC), xi, xiii–xiv, 22–3,

262

Index

126–7, 142–5, 151, 154, 158–61; Annual Reports, 143; complaints, 143 Canadian Human Rights Tribunal, 126 Commissioner of Official Languages, 19–21, 56ff, 61–3, 109, 253–5 constitutional negotiations: Canadian Charter of Rights and Freedoms (1982), 54–6 – Government of Quebec opts out, 56; Victoria Conference (1971), 52–4 – Government of Quebec rejects agreement, 54 Cook, Ramsay, xiv De Gaulle, Charles, 13, 15 Department of Communications, 18, 20 Department of External Affairs, 7–16, 21, 77, 151–2 Department of Justice, 213 Elections Canada, 217 Eliadis, Pearl, xiv, 127 employment equity, 178–83; Employment Equity Act (1986, revised 1996), 180 Fairweather, Gordon, 151, 162 Falardeau-Ramsay, Michelle, 179 Francophone-controlled school boards, 68 Fox, Paul, 51 Fraser, Graham, 59, 75 French Language Units (FLUs), 80–1, 91–3, 110 Gens de l’Air (French-language air traffic controllers), 19–20

Green, Howard, 12 Griffiths, N.E.S., xiv Harper, Prime Minister Stephen, 21, 192, 221 Hatfield, Premier Richard, 21 high-level task force report to the prime minister, 58 Hogg, Peter, 167 human rights, 115ff; adverse effect discrimination, 145; broad and narrow approaches, 119–20; Canada, two–track system of rights protection, 134; the Canadian experience, policy objectives, 130; collective rights, 129; conflicting rights, 125–30; discrimination, 144ff – analogous grounds, 146 – individual and systemic discrimination, 145 – prohibited grounds, 146 – ‘reading in’ remedy, 146; discrimination: age, 154–8 – ‘spanking case,’ 154 – mandatory retirement, 156ff; discrimination: disability, 158–60; discrimination: race, ethnic origin, and religion, 160–5; discrimination: sexual orientation, 150–4 – Vriend case, 146– 7; discrimination: women’s rights and sex discrimination, 147–50 – women’s rights, ‘persons’ case, 147; equality rights, 131ff; freedom of speech versus prevention of hate propaganda, 125ff – Richard Moon: Report, 126–7; ombudsman offices and human rights commissions, 141–4; pendulum effect and the rights industry, 122–3; provincial legislation, 132–3; rights: and obligations, 115 – and the press,

Index 123–6 – and remedies, 119 – and responsibilities, 120–2; social and economic rights versus political rights, 129–30 Iacobucci, Justice Frank, 192 Jedwab, Jack, 171 Kymlicka, Will, 171 Laforme, Justice Harry, 192 Lamer, Chief Justice Antonio, 187 language rights, 18, 25ff Léger, Jules, 13, 16–17 Manitoba Act (s. 23), 27 Martin, Paul (Sr), 13, 15 Martin, Prime Minister Paul (Jr), 112 McLachlin, Chief Justice Beverley, 128, 171, 189 McMurtry, Chief Justice Roy, 194–5 Mulroney, Prime Minister Brian, 19, 22, 49 multiculturalism, 31, 33, 165–78; British view, 170; Canada, 167–9; Charter of Rights and Freedoms (1982), 166; dress requirements, 173–4; French view, 169–70; Multiculturalism Act (1988), 166; polygamy, 173; Sikhs’ kirpans, 174–5; United States’ view, 169 official languages, 39ff; the courts – language of service, 65–6; the federal sector – service to the public, 44–6, 47–9, 56–61; Montreal, 29, 64; New Brunswick, 50, 55; the private sector – service to the public, 63–5; the provinces – service to the

263

public, 63; radio and television, 65; Report on National Service to the Public in English and French, 57 Official Languages Act (1969), 18, 47–9, 56ff, 109 Official Languages Act (1988), 49 Official Languages Act (amended, 2005), 49 ombudsman offices, 141–2 Ontario, French Language Services Act, 63 pay equity, 183–6; equal pay for work of equal value, 184 Pearson, Prime Minister Lester B., 12, 13, 15, 26, 27, 30, 45, 79, 112, 222 Pelletier, Gérard, 17–18, 74, 112 Pillay, Navanethem, 203 Royal Commission on Bilingualism and Biculturalism (RCBB), 27, 30ff, 253, 255; establishment, 12, 30; terms of reference, 30; members, 30 RCBB, Preliminary Report, 32–6 RCBB Report, General Introduction, 36–9; Aboriginal peoples, 37; human rights, 38; institutional bilingualism, 37; individual versus state bilingualism, 37–8 RCBB Report, Book I, The Official Languages, 39–66; territorial principle, Belgium and Switzerland, 41; territorial versus personality principle, 40–2 – commission rejects territorial solution for Canada, 41–2 RCBB Report, Book II, Education, 66–75; Anglophone access to edu-

264

Index

cational opportunities in Quebec, 67; British North America Act (s. 93), 72 – Mackell case, 72; education and cultural duality, 70–1; equal partnership in education, 66–9; Francophone schools, 68, 71–4; second-language learning in Canada, 69–70 – immersion schooling, 74–5 RCBB Report, Book III, The Work World, 75ff; bilingual positions, merit and language requirements, 78; bilingualism requirements and leadership, 86–7; bilingualism requirements and multiculturalism, 85–6; Canadian Armed Forces, 82, 91–2; equality of economic opportunity, 76; equitable participation by Anglophones and Francophones in public service, 92; French as the principal language of work in Quebec, 83; French Language Units (FLUs), 80ff – FLU organizational problems, 80 – failure of FLUs, 81; improvement of language training in the public service, 83ff; language learning in the public service, 89–90; policy on bilingualism in the public service, 84; receptive bilingualism, 89–90; underutilization of French in the public service, 90; use of French at work by Francophones, 88–9 RCBB Report, Book IV, The Other Ethnic Groups, 93–100; multiculturalism, 165–78 RCBB Report, Book V, The Federal Capital, 100–4; equality of English and French, 43, 101; government reactions, 103–4

RCBB Report, Book VI, Voluntary Associations, 104–7 RCBB proposals and government reactions: summary, 107–13 Robertson, Gordon, 17, 46, 52 Royal Commission on Aboriginal Peoples (RCAP), 190ff Royal Commission on the Status of Women, 180 Rushdie, Salman, 175 Secretary of State’s Department, 16–18, 45–6, 51, 74, 80–1, 106; federal languages programs, 18 Sharp, Mitchell, 14 Spicer, Keith, 21, 47, 51, 184 summing up and conclusions, 219ff; human rights, 223–9; language rights, 219–23 Ten Nation Disarmament Conference, 11 Trudeau, Pierre Elliott, 20, 21, 22, 46–7, 50, 99–100, 112, 150, 154, 167, 222; commitment to language reform, 46–7 United Nations, human rights, 116ff; Canada, and human rights violations, 215–18 – and international human rights machinery, 209–15; Canadian Parliament and human rights instruments, 213–14; International Covenant on Civil and Political Rights, 117; International Covenant on Economic, Social and Cultural Rights, 117; regional human rights machinery, 203–4; treaty bodies, consolidating reports of, 206, 208 – diversity of membership, 207–8 – and

Index non-governmental organizations, 207; United Nations Charter, 116; United Nations High Commissioner for Human Rights, 202–3, 217; Universal Declaration of Human Rights, 117; universality of human rights norms, 117–18 United Nations Human Rights Committee, 11, 23–4, 198, 204–9; Canada, reporting under article 40, 210; Canadian record on complaints, 210–12; membership and mandate, 207–8, 210; Optional Protocol, complaints, 198, 210–12 United Nations Human Rights Council (formerly, Commission on Human Rights), 197–202, 228 United Nations human rights covenants, 117, 204–9 United Nations treaty bodies, 204–13

265

World Conference on Human Rights, Vienna (1993), 118, 202 Yalden, Cicely, 1, 15 Yalden, Janice, xiv, 1, 2, 4, 11, 15, 22 Yalden, Maxwell: ambassador to Belgium and Luxemburg, 21; Assistant Under–Secretary of State, 16–18; Chief Commissioner, Canadian Human Rights Commission, 22–3; Commissioner of Official Languages, 19–21; Department of External Affairs, 7–16; Deputy Minister of Communications, 18–19; member, United Nations Human Rights Committee, 23–4; University of Toronto, 2–4; University of Michigan, 5 Yalden, Robert, xiv, 1, 11