Journal Article/Book Review
Supreme Court of Canada, Language Rights, Bilingual Language Obligations, Charter of Rights and Freedoms, Section 23, Constitutional Supremacy, Provincial Governments
The Supreme Court of Canada has used the context of language rights to establish significant contours of constitutional remedies. Language rights cases, both pre and post Charter, have engaged the full range of judicial intervention, from an invisible to a stern hand. Initially, the Supreme Court of Canada took a very passive stance in the context of bilingual language obligations of legislatures and courts. Despite lack express remedial direction from the Court, Quebec pulled out all the stops in its efforts to comply with the ruling with breakneck speed. In contrast, Manitoba adopted a leisurely pace in a half-hearted attempt to respond. As a consequence, the Supreme Court of Canada resorted to a stern hand. As minority language education issues under s 23 of the Charter came before it, the Supreme Court of Canada felt its way forward, mostly applying a gentle hand.
Throughout, the Court has attempted to identify the minimum needed to uphold constitutional supremacy. Whether expressly or by implication, assumptions about whether good faith compliance could be expected have shaped the remedial response. Although there has been court and constitution bashing rhetoric from Quebec, Quebec governments have not adopted a stance of constitutional defiance. While they have been quite willing to test the constitutional limits, they have ultimately not contested the supremacy of the constitution. Outside Quebec, there has been no rhetoric of constitutional defiance, but actions have on occasion taken that stance in the short term. Ultimately, however, push from the Court has not led to push back from governments.
Dianne Pothier, "Language Rights Remedies in the Supreme Court of Canada: Invisible, Gentle, or Stern Hand?" (2014) 19:2 Rev Const Stud 147.