A few weeks ago, the Supreme Court ruled on the Caron case, which dealt with French language rights in Alberta and Saskatchewan.
A bit of history. The first European settlers to the Prairies were French speaking voyageurs. They were joined by English and Scottish fur traders and mingled with the local natives population, such that for decades, the language of the Prairies were a mixture of French (predominantly), English, Méchif, and certain indigenous languages.
This was the case when the provisional government of Louis Riel negotiated the entry of Manitoba into Confederation in 1870. That’s why Manitoba was created as a bilingual province: primarily to protect the English minority, but also at the insistence of Riel and his colleagues. Legally Manitoba still is bilingual, even though later provincial governments ignored those rights. In time it was proven that those rights were still part of the Canadian constitution, and therefore could not be unilaterally abrogated by the government of Manitoba, no matter how unfriendly it was to the French language.
Manitoba entered as a province, but the remainder of the Prairies were transferred from the control of the Hudson’s Bay Company to that of the Canadian government as a territory, which occurred in 1870 as well. This was followed by a period of increasing colonization by primarily non-francophone immigrants (English speakers, but also many Eastern Europeans). The Métis spread out, the French were soon outnumbered, and within 20 years governments started reneging on their linguistic promises. It didn’t take long for the Canadian West to become very inhospitable to French.
It was in this context that Alberta and Saskatchewan became provinces in 1905. The construction of the railway meant that by that time, the Métis and the history of French on the Prairies was ancient history.
At issue in the Caron case was whether Alberta and Saskatchewan should have been bilingual: when the Canadian government took over the North West Territory (of which those provinces were then part), certain things were promised, including a promise to respect historical rights. For Caron (the plaintiff), the promise to respect historical rights was implicitly a promise to respect the linguistic rights of the people then living in the area, which means a promise to respect the status of French in that territory. For the majority on the Supreme Court, the promise did not explicitly include language rights. According to the SC, if politicians of the time had meant to include language rights, they would have done so, as they did with the Manitoba Act.
Historical precedent has created a situation in which the SC of Canada is supposed to read linguistic rights in a “large and generous manner”. This is a guiding principle set out by the court itself. In this case, though, the SC argued that it was only required to read existing rights in a large and generous manner, it was not required to create new rights.
The whole point of a “large and generous” interpretation of linguistic rights is that it acts as a corrective to the historically marginalized place of the French language in Canadian history. Virtually everywhere in this country, French speakers had their linguistic rights trampled.
The problem with the SC’s verdict on the Caron case is that it essentially abandons this issue of “large and generous” interpretation. It ties us to laws that were created at a time when the majority opinion of French in Canada bordered on racist. In this context, francophones outside of Québec are always going to lose. If the framework used to define is held to a strict interpretation of 125 year old laws, of course French is going to lose. It is, in my view, a somewhat arbitrary decision on the part of the court which says that in terms of “large and generous”, this case is a bridge too far.