In the academic literature on minority rights, theorists have mostly focused on two types of

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1 The Rise of Non- Territorial Autonomy in Canada: Towards a Doctrine of Institutional Completeness in the Domain of Minority Language Rights 1 Stéphanie Chouinard University of Ottawa, Canada Abstract: This article studies the claims for non- territorial autonomy (NTA) of Canada s Francophone minority communities (FMCs) encompassing the over one million French- speaking citizens that live outside of the province of Québec before the courts since the adoption of the Charter of Rights and Freedoms. The findings show that Canadian courts have sought to apply principles of NTA to accommodate FMCs by extending the Canadian language rights regime in order to apply some principles of non- territorial autonomy, in the form of institutional completeness. In so doing, the courts have opened the door to a legal recognition of positive group rights for this minority. In the academic literature on minority rights, theorists have mostly focused on two types of minorities: national and ethnic, recognizing the right to self- determination for the first and the right to non- discrimination for the second (Kymlicka 1996; Cardinal and González Hidalgo 2012). This body of literature has recognized the French- speaking Québécois as a national minority in Canada, along with the Scottish in the United Kingdom and the Basque in Spain. The literature on minorities has however been mute on the status of the other million French- speaking citizens of Canada who live outside of Québec. These Francophone minority communities (FMCs), as well as their particular situations and claims as a minority situated between national and ethnic minorities 1 (Cardinal and González Hidalgo 2012: 57) deserve to be included in the discussion regarding minority issues in Canada. Their claims have taken various forms, including the right to self- manage their own institutions in areas such as education, economy, health care, justice and social services (ibid.: 59-60). While the literature on minorities seldom addresses FMCs in Canada, there is an important body of literature in the area of non- territorial autonomy (NTA). This paper builds on this literature in order to further theorize the types of rights claims made by minorities such as 1 This article was published in the Spring of 2013 in Ethnopolitics. 1

2 FMCs. More specifically, it will look at Canadian jurisprudence and its important role in defining non- territorial autonomy. The question of language and linguistic community recognition has been central to Canada s founding and development. At the time of Confederation in 1867, the purpose of adopting a federal system of government was in part to recognize and give certain powers to the French- speaking minority of the newly created country, concentrated in Québec 2. However, at its 100 th anniversary, it was clear that whatever political provisions had been made for Francophones at Confederation were insufficient. Proof was found in the rising nationalist turmoil in Québec. In 1960, Jean Lesage s Liberal government was elected with the slogan Maîtres chez nous (Masters in our own home) and a platform with claims to a special status for Québec within the Canadian federation. Among the French- Canadian elite, there were two different attitudes towards this nationalism. One was embodied by René Lévesque (who wished to harness the nationalism in favour of complete independence for Québec) and the other by Pierre Elliott Trudeau (who sought to undermine Québec nationalism and believed in a united and bilingual Canada) (Mandel 1994: 20). Lévesque would eventually become the province s Premier (1976); and Trudeau, the country s Minister of Justice (1967 under Pearson), and later (1968), Prime Minister. As Prime Minister, Trudeau s essential strategy to fight the centrifugal forces of Québec nationalism was bilingualism both inside and outside of Québec [ ]. [He] felt that bilingualism was unattainable without the constitutional entrenchment of specific French/English minority language and language of education rights throughout the country (ibid.). Trudeau culminated these efforts with the entrenchment of the Canadian Charter of Rights and Freedoms (a bill of rights) in the Constitution of Canada in 1982 with 2

3 the repatriation from Great Britain. This may be seen as the project of Trudeau s political career that took him nearly twenty years to realize. Mandel argues that no matter how the project was sold to the Canadian citizenry as a humanitarian of democratic endeavour, the Charter and more precisely the language rights it enunciated was, for Trudeau, an expedient to fight the Québec independence movement (ibid.: 36). One could argue that this expedient incidentally served the French- speaking minority of Canada better than it served Trudeau s original goals. Since 1982, Canadian courts, with an entrenched Charter and the new powers of judicial review it enacted, have incrementally applied principles of NTA to accommodate FMCs. As such, the judges have read in or extended the Canadian language rights regime a liberal based regime comprised of negative rights in order to apply some principles of NTA claimed by the FMCs. The courts have thus opened the door to a legal recognition of positive group rights and a doctrine of institutional completeness (Breton, 1964; 1983; 1994) for this minority. While the Canadian legal system may equate the position of FMCs to that of the Anglophone minority of Québec, this paper does not include an analysis of that minority s specific claims. Anglo- Quebeckers have never demanded autonomy, rather claiming individual rights of non- intervention or non- discrimination when soliciting the courts. As Josée Legault (1992) has demonstrated, Québec s linguistic minority has opted for a collective discourse, but this discourse has presented a view rather reflecting individual rights and liberties, protecting the status quo of their enviable situation in Québec. This is the type of discourse found, notably, in the Ford, Solski, and N Guyen cases. Moreover, its historical, political and cultural position has little in common with that of the FMCs. To give a few examples, extensive comparative research (FFHQ 1978) and Canadian census 3

4 analyses have proven beyond doubt the gap in demographic vitality (ibid.: 26), median revenue (ibid.: 32), and respect of education rights (ibid.: 33) between the two minorities, with Anglo- Quebeckers being favoured in each of these categories. For all these reasons, the legal claims of this minority are deemed irrelevant to the discussion of demands for NTA and excluded from our study. This paper will proceed by reviewing the literature on the foundations of NTA and comparing it to Raymond Breton s concept of institutional completeness in order to underline their similarities and to provide sociological arguments on which the concept of NTA might rest. The article will then demonstrate how Canadian jurisprudence has helped to define elements of NTA in a way conducive to further theorization of the concept as well as its application. In conclusion, this paper will offer some insights on the persisting weaknesses and limitations of the autonomy of FMCs in law as well as in the political realm. The theory of non- territorial autonomy and institutional completeness As it has already been widely covered in the literature (Roach 2004, 2005; Nimni 2005, 2007; Smith and Hiden 2012), the concept of non- territorial autonomy (NTA), in the form of national- cultural autonomy, was formulated at the turn of the 20 th century by Karl Renner and Otto Bauer. Both were members of the Social Democratic Party of Austria- Hungary. Renner s State and Nation, first published in 1899, presented a new model for the management of national- cultural diversity within a single state (Nimni 2007: ). Bauer s The Question of Nationalities and Social Democracy, written in 1907, sought to remedy class divisions through a platform of equal rights for all national minority groups (Roach 2004: 92). Both authors were at the time trying to find a solution to the problem of secessionist threats from minorities within the Austro- Hungarian Empire. 4

5 At the base of their theory, we find the personality principle, which postulates that totalities of persons are divisible only according to personal, not territorial characteristics (Renner in: Nimni 2005: 32). This means that individuals, and not territories, are the rights- bearers, and therefore, that rights follow the individual wherever he or she may be within a given state. Renner envisaged the nation as a public law corporation, in a position comparable to that of the Church. Just as the latter embraced communities of shared belief, so the nation should be thought of as an association of equal individuals bound by a common culture (Smith and Hiden 2012: 12). Moreover, the model necessitates a democratic setting, since autonomous communities are organized democratically and are based on individual consent to belong and internal democracy (Nimni 2005: 10). It is a model able to recognize that some minorities may wish more or less autonomy and leaves open the possibility that it may exercise power in only certain matters deemed important. According to Nimni (2007), national- cultural autonomy is based on the premise that the most controversial issues in the relationship between ethnic and national groups are issues concerning language, education and the recognition of cultural rights in the public domain. Here, networks of communication across cultural boundaries are crucial because the model recognizes both communities and individuals as legitimate interlocutors. (347) Renner and Bauer s model, while deemed attractive, was never adopted by the Social Democrats within the Empire (Nimni 2005: 6) and since fell into relative obscurity. As many liberal democracies throughout the 20 th century came across relatively similar national minority issues, most states went in the way of territorial, rather than non- territorial, solutions, notably in the form of federalism. However, federalism brought its own series of problems. As it was made clear, it is nearly impossible to divide a territory 5

6 without creating new minorities within the new borders. A growing number of criticisms have been brought forward in the past two decades regarding multiculturalism (Kymlicka) and multinationalism (Burgess, Gagnon), the two great normative trends of territorial cultural accommodation within the liberal framework. Among them, we find the problems of power imbalance and discrimination created by the majority- minority status within a single nation- state, as well as systematic exclusion of minorities from the legislative and administrative branches (Nimni 2007: 349). Moreover, increased population mobility and worldwide networks brought on by forces such as globalization means it has only become more difficult to territorialize rights to autonomy (Rethmann, Szeman and Coleman 2010). As some European scholars such as Nimni and Roach are now trying to revive interest in Renner and Bauer s model, it still appears to be relatively absent in North American literature on minority recognition and accommodation, which still mostly focuses on territorial principles. In light of this observation, Raymond Breton, a Canadian sociologist, can be considered a pioneer in the development of a non- territorial model of autonomy for minorities in Canada. In 1964, he published Institutional Completeness of Ethnic Communities and Personal Relations of Immigrants, an article which analyzed how immigrants would choose to integrate, either into the majority community, his or her own ethnic immigrant group, or an immigrant group of a different ethnic background. His findings demonstrated that the level of an ethnic community s social organization, in terms of institutions, is directly related to its ability to attract and retain members. Institutional completeness, in this sense, varies on a continuum, from very informal bonds and interpersonal relations to the ability to perform all the services required by its members to the point that they would never have to make use of native institutions for the 6

7 satisfaction of any of their needs, such as education, work, food and clothing, medical care, or social assistance (Breton 1964: 194). Some twenty years later, in 1985, Breton updated his model. Now using Mancur Olson s theory of collective action as a starting point and therefore taking an individualistic stance, he explains how a community s sustainability relies on individual choice (Breton 1985: 77) and cannot only use internal constraints to keep its members. It must also use positive motivations, which he describes as advantages accessible only to those who participate to the production and maintenance of cultural and communal goods. In this perspective, the community shall, to assure its growth, put in place organizations, services and activities, which will incite individuals to join and integrate to it. We can thus say that the maintenance of a community, its vitality, and its cohesion, depend on the dynamism of its core and of the magnetism it generates [ ] this magnetism must emanate from the community s institutions and activities. 3 (ibid. 84) Both Bauer and Renner s national- cultural autonomy and Breton s institutional completeness appear to be well suited to minorities that demand significant autonomy but for a variety of reasons cannot have separate states (Nimni 2005: 11). Beyond this observation, there are some clear normative and practical overlaps between the two models, which merit closer attention. Firstly, both present a personalist alternative to the territorial models of minority self- determination and rely on voluntary/democratic precepts. According to Breton, belonging to a community is for the most part an individual choice: a person may integrate into it [ ] or leave, even if he or she had been a member since birth (Breton 1985: 77). Nimni explains further that the model recognizes both communities and individuals as legitimate interlocutors (Nimni 2007: 347). The authors underline the choice given to the individual regarding adhesion to and participation within the group. The organization of 7

8 the group itself appears to be democratically defined, as members get to debate and discuss issues regarding the community (internal democracy). Members of each national community, whatever their territory of residence, would form a single public body [ ] a legal personality and sovereignty to deal with all national- cultural affairs (ibid.). The level of autonomy of the community may be higher or lower, including multiple or fewer domains of responsibility, according to its will. Secondly, both models make it a point to target a certain number of contentious issues needing special attention within the community (and between communities), which are closely related to the maintenance of the group s culture. These are matters of competency in fields such as education, language and cultural goods. Thirdly and finally, both models tackle the question of the legitimacy of the minority s institutions and organizations. In both cases, there is an emphasis on an official recognition of those institutions, ideally protected under the constitution. As Breton (1985) wrote in regards to FMCs: We want the existence of the minority to be considered as legitimate, so that its institutions may claim a certain support from society at large 4 (79). This support is primordial to ensure protection on behalf of the state and to alleviate the community s minority status. FMCs and non- territorial autonomy: Why institutional completeness? The statistics from the latest Canadian census have determined there are about 1.1 million Francophones living outside Québec, out of whom 77% live either in Ontario (561,155 Francophones) or New Brunswick (240,455 Francophones) (Statistics Canada 2012: online). The rest are dispersed in the 10 other remaining provinces and territories, in 8

9 proportions sometimes as small as 3,020 Francophones or 0.6% of the population in the province of Newfoundland and Labrador (ibid.). Their respective demographic situation is therefore quite varied. FMCs have been deemed to be neither national nor ethnic groups, but rather a hybrid named nationalitary by sociologist Joseph Yvon Thériault (1981: 461). By nationalitary, he meant a group with some of the attributes of a national group, such as a shared history, language, or religion, but with no claims to a certain territory or to its own state. Their conception of the homeland would rather lie on a certain space. 5 As explained by Gilbert (2010: 13), the concept of space has gradually imposed itself to designate the French presence under diverse shapes in the Francophone minority milieu. This concept allows the description of places, often marginal and within Anglophone localities, where French is used, such as schools, community centres, hospitals, churches, but also radio stations, festivals, or literature. It is used in an abstract sense. 6 In the last decades, the heavy flow of Canadians moving from rural regions towards urban regions (where English is widely predominant), accentuates this phenomenon. If Francophones have moved to the cities, Anglophones have followed the same trend, even more massively so, which creates a manifestly English- speaking out- of- Québec urbanity 7 (Thériault 1989: 137). When Breton applied his model of institutional completeness to the FMCs starting in 1985 (see also 1994), he noted not only a diversity of communities, along provincial, regional and local boundaries, but also a wide heterogeneity in levels of institutional completeness. Breton explained that [These communities] do not all have the same capacity to modulate the diverse components of individuals life and therefore to retain pertinence and significance for their material, social and cultural condition. They also differ in their capacity to respond to individuals identity aspirations 8 (1994: 60). His 9

10 observations echoed those who had already qualified the many pockets of Francophones living in North America of which about a million live in Canadian FMCs (Castonguay 2004) as an archipelago of diverse, non- contiguous communities and individuals (Louder 1996; Gilbert 1998). The demographic and geographic situation of FMCs demonstrates a certain inapplicability of territorial autonomy and therefore the attractiveness of a model such as institutional completeness. While the government of Canada has been timid in recognizing institutional completeness for FMCs, the courts have been more innovative,, defining the right to NTA through various judgements. This next section will demonstrate that the road to non- territorial autonomy for FMCs has been a winding one, beginning in the 1980s and culminating in 2009 with the Lalonde judgement.. FMCs and the law. The role of the courts in the development of a right to institutional completeness Judicial developments on the autonomy of FMCs of the last thirty years can be classified into three eras. The first era, which lasts until 1990, evidences a restrained reading of Canadian law. The second era, which begins with the Mahé judgement in 1990 and ends in 1999, demonstrates a change in approach with judges ruling in favour of positive and collective rights. Finally, from 2000 to today, a clearer definition of a right to non- territorial autonomy has developed, through the concept of institutional completeness : The doctrine of political compromise Following the adoption of the Charter of Rights and Freedoms, the first step in the development of a Canadian judicial theory of linguistic rights took place during the

11 Manitoba Language Rights Reference case. This case did not touch on Charter provisions, but rather on section 133 of the Constitution Act (which addresses language rights) and its application in the province of Manitoba. The judges found that the requirements of s. 133 regarding the use of both French and English in the records and Acts of the legislature did apply to Manitoba. However, the part of the ratio decidendi which is most important to us is not the answers of the Court to the questions regarding the status of French in the province of Manitoba, but rather the reasoning regarding the essence of language rights used to answer those questions: The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society. 9 (Re Manitoba Language Rights, [1985] 1 SCR 721 at para. 46) While this case did not call for an interpretation of the linguistic dispositions of the Charter per se, it did lay the base for the recognition of language as a collective, rather than an individual, good. In 1986, the Supreme Court was seized with a trilogy of cases regarding the right to be heard in court and to obtain legal documents from state authorities in one s official language: Bilodeau, Macdonald and Société des Acadiens. In Bilodeau, the enforceability of a unilingual (English) summons under Manitoba s Highway Traffic Act was put into question by a Francophone (Mr. Roger Bilodeau, the recipient of the summons). The majority of the court ruled that in that province, a summons did not have to be bilingual or printed in the language of choice of its recipient to be effective (Bilodeau v Attorney General (Manitoba), [1986] 1 SCR 449). In the Macdonald case, the Supreme Court similarly dismissed the 11

12 appeal of an Anglophone who had received a unilingual French summons issued by the City of Montréal. In his decision, Beetz J., writing for the majority, put forth a narrow vision of official rights guarantees: It may well be desirable or fair that summonses be bilingual to ensure comprehension by the recipient, but such a requirement is not imposed by the explicit provision of s The section has not introduced a comprehensive scheme of official bilingualism [ ]. This incomplete but precise scheme is a constitutional minimum which resulted from an historical compromise arrived at by the founding people who agreed upon the terms of the federal union. 10 (MacDonald v City of Montreal, [1986] 1 S.C.R. 460: 6) Finally, in Société des Acadiens, the Court was asked whether a party was entitled by the Charter to be heard in the official language of its choice in a court of the province of New Brunswick. Beetz J., again, writing for the majority, that pleading may be done in the official language of the speaker s choice, but that there is no language guarantee [ ] that the speaker will be heard or understood (Société des Acadiens v Association of Parents, [1986] 1 SCR 549 : 5). This ruling, in practice, made the right to be heard in court in the official language of one s choice a hollow one. Beetz J. further notes: Language rights [ ] remain nonetheless founded on political compromise. [ ] This is not to say that language rights provisions are cast in stone and should remain immune altogether from judicial interpretation. But the courts should approach them with more restraint than they would in construing legal rights. 11 (ibid. at paras ) Together, these three judgements articulated what came to be known as the doctrine of political compromise of language rights. Beetz J. had effectively created two classes of rights within the Charter, first- class or principle- based rights and second- class or compromise- based rights (Green and Réaume 1990: 566). This doctrine was seen as a step backward from the previous judgements because it entailed a restrictive interpretation of language rights, based on negative liberties. Language was interpreted, in these three cases 12

13 as a second- class right which necessitated judicial restraint (ibid.) and merely as a utilitarian means of communication between individuals. Critics of the trilogy were quick to point out that the restrained interpretation was inconsistent with the robust and generous interpretation that had already been accorded to language rights (Réaume 2002: 598). Nevertheless, this doctrine was used by lower courts, notably restraining provincial language rights, for a number of years (Foucher in: Wallot 2005: 143). Notably, this doctrine was again cited by the Supreme Court of Canada in the Mercure (1988) case, which questioned the official language status of the province of Saskatchewan based on section 110 of the Northwest Territories Act : The demise of the doctrine of political compromise and the recognition of collective language rights As the Supreme Court is seized with the Mahé case in 1990, an interesting development for NTA occurs. Mahé remains one of the key Canadian language rights precedents to this day. Writing on behalf of a unanimous court, Dickson J. interprets the purpose of section 23 of the Charter (regarding minority language education rights) in a generous manner. He dismisses the 1986 trilogy s doctrine and the utilitarian interpretation of language rights, whose demise had already begun since the adoption of the new Official Languages Act by the federal Parliament in Dickson J. also reintroduces, in his judgement, the link between language and culture. Citing the Laurendeau- Dunton Commission on Bilingualism and Biculturalism, the judgement reads: [T]he vitality of the language is a necessary condition for the complete preservation of a culture. (Mahé v Alberta, [1990] 1 SCR 342 at para. 1) And further: 13

14 The general purpose of s. 23 is clear: it is to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language flourishes, as far as possible, in provinces where it is not spoken by the majority of the population. The section aims at achieving this goal by granting minority language educational rights to minority language parents throughout Canada. My reference to cultures is significant: it is based on the fact that any broad guarantee of language rights, especially in the context of education, cannot be separated from a concern for the culture associated with the language. Language is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it. 13 (Mahé v Alberta, ibid) On the question of access and management of minority language schools by the Francophone minority community in Alberta, we see here a definite turn towards the paradigm of collective rights. According to Power and Foucher, Because of its object, it is a social and collective right although its constitutional status, its justiciability, and its reach also make it an individual and civil right. 14 (Power and Foucher in: Bastarache 2004, 415). Mahé is the first court judgement where the right of the FMCs to the ownership and management of their own (state- funded) institutions (where numbers warrant) is clearly stated. This right will be restated in a number of ulterior cases, which will be discussed later in this paper. The Reference re Secession of Quebec in 1998, while not being specifically about FMCs, provided them with a massive legal argument for further litigation by recognizing the protection of minorities as an unwritten principle of the Canadian constitution. It also answers directly to the Société des Acadiens judgement and again refutes the doctrine of political compromise: [E]ven though those provisions [regarding language rights] were the product of negotiation and political compromise, that does not render them unprincipled. Rather, such a concern reflects a broader principle related to the protection of minority rights [ ] an independent principle underlying our constitutional order. The principle is clearly reflected in the Charter's 14

15 provisions for the protection of minority rights. (Reference re Secession of Quebec, [1998] 2 SCR 217 at para. 80) This was an important legal development for FMCs: From that moment on, they will also refer to this principle to demand that governments show a greater sensitivity to their preoccupations 15 (Cardinal in: Thériault, Gilbert and Cardinal 2008: 391). The Beaulac judgement, in 1999, overturned once and for all the political compromise doctrine. Following the advances made in Mahé, Bastarache J. recognizes the collective aspect of language rights: The objective of protecting official language minorities, as set out in s. 2 of the Official Languages Act, is realized by the possibility for all members of the minority to exercise independent, individual rights which are justified by the existence of the community. Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. 16 (R v Beaulac, [1999] 1 SCR 768 at para. 20) He also calls into question the norm of real equality for both official languages: Equality does not have a lesser meaning in matters of language. With regard to existing rights, equality must be given true meaning. This Court has recognized that substantive equality is the correct norm to apply in Canadian law. Where institutional bilingualism in the courts is provided for, it refers to equal access to services of equal quality for members of both official language communities in Canada. (ibid. at para. 22) Whereas the concept of real equality does not explicitly speak to the autonomy of FMCs, the concept is adopted in later judgements to underline the right of FMCs to institutions of equal quality to those of the majority : From collective rights to the introduction of institutional completeness This concept of real equality, comes into play a year later in the Arsenault- Cameron (2000) judgement, which addresses the right to French- language education on Prince Edward Island. This case is seen as a legal paradigm shift (Foucher in: Wallot 2005: 146), 15

16 in the sense that the judges take a decidedly collective stance in their reading of language rights, whose object is not to be solely a tool of communication anymore, but rather to permit minorities to live in their own language (ibid.). The court also introduces the notion of differential treatment, in the sense that equality between both official language communities may require different measures for the minority than the ones adopted for the majority. A unanimous court ruled: What made sense to the minority language community and its Board did not make sense to the Minister because pedagogical needs were not understood in the same way. The fact that the pedagogical requirements of the minority need not be met in an identical way to those of the majority did not appear to be a factor in the decision of the Minister. [ ] The decision of the Minister fostered an environment in which many of the s. 23 children were discouraged from attending the minority language school because of the long travel times. A similar disincentive would not arise in the circumstances of the majority. [ ] For the minority, travel arrangements were in large measure a cultural and linguistic issue; they involved not only travel times but also a consideration of distances because of the impact of having children sent outside their community and of not having an educational institution within the community itself. As just mentioned, travel arrangements [ ] have to be considered in the context of the pedagogical and cost requirements which pertain to the application of s (Arsenault- Cameron v Prince Edward Island, [2000] 1 SCR 3 at paras ) Finally, and of paramount importance in the context of this paper, the judges not only stated the right of the FMCs to control their education institutions, but also recognized the role of the community s representatives as legitimate spokespeople in their management: Where a minority language board has been established in furtherance of s. 23, it is up to the board, as it represents the minority official language community, to decide what is more appropriate from a cultural and linguistic perspective. The principal role of the Minister is to develop institutional structures and specific regulations and policies to deal with the unique blend of linguistic dynamics that has developed in the province. 17 (ibid., at para. 43) 16

17 In 1999, the Divisional Court of Ontario heard the Lalonde case, also known as the Montfort Hospital affair. At the crux of this case was whether the Franco- Ontarian community had a right to the ownership and management of its own hospital. When the Health Services Restructuring Commission, put in place by the provincial government in 1996, announced the closure of the Montfort hospital (the only French hospital in all of the province of Ontario), a group of citizens decided to challenge the decision by taking the Ontario provincial government to court. During the trial, Raymond Breton, as well as Roger Bernard, another sociologist specializing in minority issues, were called to testify as experts in the case. The court took their advice as evidence and based part of its decision to overturn the Commission s decision on Breton s principle of institutional completeness. The judgement reads, at paragraphs 14 and 15: Dr. Raymond Breton and Dr. Roger Bernard [ ] gave evidence that institutions are vital to the survival of cultural communities. They are much more than providers of services. They are linguistic and cultural milieus which provide individuals with the means of affirming and expressing their cultural identity, and which by extension permit them to reaffirm their cultural adherence to a community. [ ] Any reduction in an institution's sphere of activity will negatively impact the community and increase the probabilities of assimilation. While Dr. Breton and Dr. Bernard acknowledged that hospitals may not be amongst those institutions at the high end of the scale in this regard, they maintained nonetheless that hospitals such as Montfort are "all the same, very important in the network of institutions" of a minority culture. 18 (Lalonde v Ontario (Health Services Restructuring Commission) (1999), 48 OR (3d) 50, 181 DLR (4th) 263) Brought to appeal in 2001, the Divisionary Court s decision was sustained. The Court of Appeal also deemed it necessary to overturn the Commission s decision based on a few arguments, notably the unwritten constitutional principle of the protection of minorities, as had been enunciated in the Reference Re Secession of Quebec, case and further, restated the 17

18 importance of Montfort as an institution of the community. Weiler J.A. and Sharpe J.A. wrote in their judgement: We affirm the Divisional Court s findings of fact that the Commission s directions to Montfort would [ ] impair Montfort s broader role as an important linguistic, cultural, and educational institution, vital to the minority francophone population of Ontario. [ ] In exercising its discretion as to what is in the public interest, the Commission was required by the fundamental principles of the Constitution to give serious weight and consideration to the importance of Montfort as an institution to the survival of the Franco- Ontarian minority. The Commission considered this beyond its mandate and its directions are therefore subject to judicial review. This is a second reason for quashing the Commission s directions. 19 (Lalonde v Ontario (Health Services Restructuring Commission) (2001), 56 OR (3d) 505, 208 DLR (4th) 577 at para. 188) Lalonde therefore opened the door to the future establishment of Francophone health care facilities as another institution integral to the sustainability of FMCs according to the principle of institutional completeness, but this has yet to be confirmed in court. Moreover, outside of New Brunswick, no right to linguistically homogeneous hospitals yet exists there is only a right to administrative arrangements to accommodate the Francophone minority (Foucher 2012: 105). Almost concomitant to the Arsenault- Cameron and the Lalonde cases, the Doucet- Boudreau case in Nova Scotia also offers some interesting insight into the importance attributed to the FMCs institutions by the courts. After the government of the province of Nova Scotia failed for many years to begin the construction of homogeneous French high schools in five different districts where the number of potential pupils warranted such facilities but none already existed, a group of Francophone parents from those districts appealed to the Supreme Court of Nova Scotia in order to direct the Ministry of Education to answer its constitutional obligations, according to section 23 of the Charter. Not only did 18

19 LeBlanc J. find that the parents were within their right to demand these new facilities and that the government had failed, but also that the government had not given sufficient attention to the serious rate of assimilation among Acadians and Francophones in Nova Scotia (Doucet- Boudreau v Nova Scotia (Minister of Education), [2003] 3 SCR 3). He therefore decided to emit a series of deadlines by which those facilities and programs should be provided, left the case open and set a series of follow- up meetings with the applicants and respondents to make sure that reasonable advancement was made in order to respect these deadlines. The government appealed the remedial part of this judgement; the Nova Scotia Court of Appeal effectively struck it down, on the basis that the trial judge, having decided the issue between the parties, had no further jurisdiction to remain seized of the case (ibid.). This decision was, again, appealed by the Association of parents, and the case reached the Supreme Court of Canada in The Supreme Court confirmed LeBlanc J. s ruling and therefore, created an important precedent for future cases. In 2005, the Supreme Court of the Northwest Territories ( NWT ) was asked to clarify the linguistic obligations of the territorial and federal governments on that territory. The Fédération franco- ténoise, the Éditions franco- ténoises and others filed an action in the Supreme Court of the N.W.T. against the GNWT and the Government of Canada seeking general, special and punitive or exemplary damages resulting from the lack of services in French. (Office of the Commissioner of Official Languages 2006: 29). The question at stake was whether the territory (which, in the Canadian federation, is a creature of the federal level of government, subordinate to it) had fulfilled its obligations towards its official languages. 19

20 This case called on a number of experts from the social sciences field, such as Drs. Edmund Aunger and Rodrigue Landry. They both presented the argument of institutional completeness to highlight the lack of action from the government of the NWT. As demonstrated by Dr. Aunger: A language regime that is effective and balanced in its use of the minority language increases the institutional completeness of the minority and thus, its linguistic vitality. In a modern society, institutions using a minority language constitute a vital element in the survival of the linguistic community and its retention of its language. Such institutions can be social, economic, cultural but also political. A regime that is ineffective or very imbalanced reduces institutional completeness and thus, the vitality of the community of speakers. To summarize, when institutional completeness is low, the assimilatory pressure is high, all other things being equal. (Fédération Franco- Ténoise v Canada (Attorney General), 2006 NWTSC 20 at para. 613) These arguments were taken up by Moreau J. in her decision (at para. 625) to find the NWT government guilty of not respecting its own territorial language obligations. This judgement is therefore a second instance of the judges significant recognition of institutional completeness in a legal argument regarding FMCs language rights. In 2009, the Supreme Court of Canada was seized with the DesRochers case, which touched on the quality of services in both official languages provided by a federal public institution or by a private institution acting on behalf of the federal government. Prior to the Supreme Court hearing, the Federal Court of Appeal had found in 2007 that such services should be of equal quality in both official languages but taking a rather formalistic view of the notion of equality (Foucher 2012: 104). The Supreme Court, for its part, took a more substantive definition of equality. Charron J. wrote: The content of the principle of linguistic equality in government services is not necessarily uniform. It must be defined in light of the nature and purpose of the service in question. [ ] It is difficult to imagine how the federal institution could provide the community economic development services 20

21 mentioned in this description without the participation of the targeted communities in both the development and the implementation of programs. That is the very nature of the service provided by the federal institution. It necessarily follows [ ] that the communities could ultimately expect to have distinct content that varied greatly from one community to another, depending on priorities established by the communities themselves. 20 (DesRochers v Canada (Industry), [2009] 1 SCR 194 at paras. 51 and 53) Moreover, the Industry Canada program targeted in the case addressed community economic development, and according to the Department s website, the program adopted: a global approach to development under which communities take charge of their own economic futures and decide the direction they will take to attain their goals. The following CED principles guide community futures development corporations (CFDCs) in all the activities and services they offer: ensuring development of the community, by the community and for the community [ ] In addition to the business development and strategic planning services mentioned above, CFDCs may take part in all kinds of other CED activities and projects. These will vary greatly from one community to another, depending on priorities established in the local strategic planning process. 21 (ibid. at para. 52) The program should therefore have granted a certain amount of autonomy to the Francophone minority of the Huronie (Northern Ontario) region in order to respect those guidelines. However, as in the case of health care facilities in Ontario, the courts did not go as far as to define a right to autonomous institutions for the economic development of FMCs. Rather, they have suggested that: any claim by official language minorities in Canada for autonomous management of federal public service provision would stem from Part VII 22 of the [Official Languages] Act and of the federal engagement to take positive measures regarding linguistic minorities 23 (Foucher 2012: 108). Conclusion 21

22 Institutional completeness as theory and practice non- territorial autonomy for FMCs According to some authors (Foucher; Safran and Máiz), completely excluding territory from normative or practical ideas of autonomy may prove to be difficult. Safran (2000), in a volume on territorial autonomy, is quick to point out that any form of autonomy, whether territorial or personal/functional/institutional, cannot completely do away with the problem of territory because of the spatial characteristic inherent to institutions. The idea of territoriality is suggested by the existence of networks of institutions cultural, educational, social, commercial, and/or religious that serve the particular needs of ethnic communities 24 (Safran in: Safran and Máiz 2000 : 12). For instance, drawing the Mahé case discussed in this paper, the legal notion of where numbers warrant present in the jurisprudence, defines a sliding scale 25 towards institutional completeness in education for FMCs (as per Mahé par. 61). The notion of territoriality also rears its head at the local level, in towns and cities where Francophones make up either a majority or a significant portion of the population. In recent years, various local governments have been grappling with questions related to official languages, such as official bilingualism and bilingual commercial signage (Bourgeois and Bourgeois 2012; Dupuis 2012). In all these cases, the larger the number of Francophones on a given territory, the greater the community s potential level of institutional autonomy on that territory. The notion of territory therefore cannot be completely eliminated from a reflection about FMCs autonomy claims. Despite these difficulties, it is clear that there is an interesting normative affiliation between non- territorial autonomy and Breton s institutional completeness. This connection allows for a useful application of the NTA framework to the Canadian case of FMCs. The right to linguistically homogeneous institutions (Foucher 2012: 109) or institutional 22

23 completeness, which FMCs have gained before the courts, is a positive step toward non- territorial autonomy and fills a number of normative gaps regarding the recognition of their right to autonomy. This right is strongest in the provinces of Ontario and New Brunswick, where some legislative measures guarantee the right to linguistically homogenous institutions or institutional completeness in the educative, social and cultural domains. FMCs from other provinces often look to these two communities for political and judicial leadership on these matters. Courts have played a key role in not only articulating the right to distinct institutions but have also proposed a number of practices to actualize this form of NTA in their judgements. Such practices go beyond defining a government s duty to provide the relevant institutions for FMCs, and require measures to attain unique and needs- based substantive equality through these institutions (Beaulac). They also elaborated the duty to consult the FMCs in domains relevant to their language and culture (Montfort); the recognition of community actors as legitimate representatives before the government (Arsenault- Cameron); and the requirement that governments fulfill their duties towards FMCs in a timely manner (Doucet- Boudreau). There are a number of challenges FMCs need to face before they can claim integral institutional completeness in domains that are important to them. As previously discussed, there remain many steps to be taken before FMCs have the right to access health care services or to economic development, in both official languages. Such is also the case for the right to Francophone daycare and post- secondary education facilities, which have in recent years become concerns for the FMCs. These two domains have yet to be addressed in 23

24 court and are not explicitly defined in law or addressed through jurisprudence (although it may be argued that they are an extension, at both ends of the age spectrum, of the right to education in the minority s official language). If FMCs decide to take these question to the courts, judgements would have to define whether the protections of section 23 of the Charter extend to those institutions. As it has been said many times before, courts cannot speak on their own initiative; they may only answer when a question is asked to them. In light of our findings, it appears that FMCs will have to continue, in the future, to rely on the judges generous interpretation of their rights in order to ensure the broadening of their institutional completeness. This may prove a treacherous path, since judge nominations are, after all, political nominations. A government less inclined to recognize and promote official languages may be able to indirectly influence court decisions with the nomination of judges that share their ideology. As receptive judges, such as Dickson J. and Bastarache J., overturned the political compromise doctrine in the past, the more generous interpretation, which has become the new doctrine, may also be revisited in the future. This is a risk FMCs may have to face future litigation. 1 Personal translation. 2 This institutional arrangement created French- speaking minorities in the other three original provinces of the newly founded country, and in all subsequent provinces to join the Confederation. These minorities often had little to no protection related to the recognition of their language. 3 Personal translation. 4 Personal translation. 5 This, however, may be less true for the Acadians in New Brunswick, who had formulated a secessionist project and claimed half of the province s territory, through the Acadian Party s platform, in the 1970s. 6 Personal translation. 7 Personal translation. 8 Personal translation. 9 Emphasis added. 24

25 10 Emphasis added. 11 Emphasis added. 12 The House of Commons debates taking place before the adoption of the Bill, in 1987, demonstrate that the legislators were manifestly aiming to upgrade the constitutional minimum set by the trilogy. (Newman 2002: 8-9). 13 Emphasis added. 14 Personal translation. 15 Personal translation. 16 Emphasis added. 17 Emphasis added. 18 Emphasis added. 19 Emphasis added. 20 Emphasis added. 21 Emphasis in text. 22 Part VII of the OLA, added in 2005, legally binds the federal government to take positive measures towards the sustainability and development of official language minorities in Canada. 23 Personal translation. 24 Emphasis added. 25 The sliding scale approach is based on section 23 of the Charter and states the levels of institutional requirements to be provided for particular numbers of students to be instructed in the language of the minority. References BOURGEOIS, D. and Y. BOURGEOIS (2012) Minority sub- state institutional completeness, International Review of Sociology, 22(2), pp BRAËN, A., P. FOUCHER and Y. LEBOUTHILLIER (Eds.) (2004) Languages, Constitutionalism and Minorities (Markham: LexisNexis Butterworths). BRETON, R. (1994) Modalités d appartenance aux francophonies minoritaires: essai de typologie, Sociologie et sociétés, 26(1), pp BRETON, R. (1985) L intégration des francophones hors Québec dans des communautés de langue française, Revue de l Université d Ottawa, 55(2), pp BRETON, R. (1983) La communauté ethnique, communauté politique, Sociologie et sociétés, 15(2), pp BRETON, R. (1964) Institutional Completeness of Ethnic Communities and Personal Relations of Immigrants, American Journal of Sociology, 70(2), pp BURGESS, M., and J. PINDER (Eds.) (2007) Multinational federations (London: Routledge). 25