David Bourget (Western Ontario)
David Chalmers (ANU, NYU)
Rafael De Clercq
Jack Alan Reynolds
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Most of the constitutionalized language rights in Canada have received a large and liberal interpretation. In contrast, the constitutional right to use either official language in the courts has been categorized as a "political compromise right" and interpreted narrowly to the point of being ineffective. Recently, a majority of the Supreme Court rejected the political compromise doctrine in R. v. Beaulac. It is hoped that this decision will result in a broader interpretation of the right to use English or French before the courts. A restrictive interpretation of the right, however, is also dictated by its having been characterized as a negative liberty, and this aspect of the past case law was not overruled by Beaulac. In part, the negative liberty interpretation of the right to use either official language in the courts stems from the fear that to adopt a positive right approach would result in an irresolvable conflict between interacting holders of the same right. A positive interpretation of the right is possible, however, if corresponding duties are imposed not on individuals, but on the state. In order to support a broad and positive interpretation of language use rights in the courts, as well as in the provision of government services, what is needed is an understanding of their purpose that goes beyond effective communication, that is, not one based on a natural justice rationale. To counter the tendency to construe the purpose of language rights in wholly instrumental terms, we need an account of such rights that recognizes the intrinsic value to a minority official language community of the use of its language. While Beaulac moves us significantly in the right direction, the Supreme Court failed to articulate fully why the use of a particular language is important to a community.
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