La Loi 101 et l’égalité linguistique au sens de la Charte canadienne

Abstract

        Subsection 16(3) of the Canadian Charter of Rights and Freedoms allows Parliament and the provincial legislatures to enact legislation to “advance the equality of status or use of English and French”. This article seeks to better understand the relationship between the Charter of the French Language (CFL) and this provision. According to a widely held view, there is a fundamental structural incompatibility between the CFL’s underlying language policy scheme and that of the Canadian Charter. The author argues that this view must be rejected, for three main reasons. First, it suffers from significant methodological weaknesses that distort the analysis of the relationship between their respective conceptual frameworks. Second, it holds that the two instruments are based on discordant, even anti-nomic structural principles (“territoriality” v. “personality”, “interculturalism” v. “multiculturalism”, “collective rights” v. “individual rights”), when these are in fact false dichotomies that in no way demonstrate the existence of a contradiction from a legal perspective. Third, contrary to what some authors claim, the case law on the constitutionality of the CFL does not demonstrate that it is fundamentally incompatible with the principles of the Canadian Charter’s language policy scheme. In the final analysis, the structural incompatibility thesis is based on ideological considerations that have very little relevance from a legal standpoint. The author therefore proposes that the CFL could indeed be viewed as a law aimed at achieving linguistic equality as understood by the Canadian Charter, but that the scope of the interests targeted by the principle of linguistic equality must be further clarified before it is possible to offer a definitive answer.