Bill C-91: An Act respecting Indigenous languages

Tabled in the House of Commons, March 22^nd, 2019

Explanatory Note

The Minister of Justice prepares a “Charter Statement” to help inform public and Parliamentary debate on a government bill. One of the Minister of Justice’s most important responsibilities is to examine legislation for consistency with the Canadian Charter of Rights and Freedoms [“the Charter”]. By tabling a Charter Statement, the Minister is sharing some of the key considerations that informed the review of a bill for consistency with the Charter. A Statement identifies Charter rights and freedoms that may potentially be engaged by a bill and provides a brief explanation of the nature of any engagement, in light of the measures being proposed.

A Charter Statement also identifies potential justifications for any limits a bill may impose on Charter rights and freedoms. Section 1 of the Charter provides that rights and freedoms may be subject to reasonable limits if those limits are prescribed by law and demonstrably justified in a free and democratic society. This means that Parliament may enact laws that limit Charter rights and freedoms. The Charter will be violated only where a limit is not demonstrably justifiable in a free and democratic society.

A Charter Statement is intended to provide legal information to the public and Parliament on a bill’s potential effects on rights and freedoms that are neither trivial nor too speculative. It is not intended to be a comprehensive overview of all conceivable Charter considerations. Additional considerations relevant to the constitutionality of a bill may also arise in the course of Parliamentary study and amendment of a bill. A Statement is not a legal opinion on the constitutionality of a bill.

Charter Considerations

The Minister of Justice has examined Bill C-91, An Act respecting Indigenous languages, for consistency with the Charter pursuant to his obligation under section 4.1 of the Department of Justice Act. This review involved consideration of the objectives and features of the Bill, including the importance of promoting values that underlie the Charter, notably equality, respect for diversity and freedom of expression.

What follows is a non-exhaustive discussion of the ways in which Bill C-91 potentially engages the rights and freedoms guaranteed by the Charter. It is presented to assist in informing the public and Parliamentary debate on the Bill.

Overview

The preamble of the Bill states that Indigenous languages were the first languages spoken in the lands that are now in Canada and that they are fundamental to the identities, cultures, spirituality, relationships to the land, world views and self-determination of Indigenous peoples. The preamble further recognizes that Indigenous languages contribute to the diversity and richness of the linguistic and cultural heritage of Canada and that the recognition and implementation of rights related to Indigenous languages are at the core of reconciliation with Indigenous peoples. 

The preamble of the Bill further provides that a flexible approach that takes into account the unique circumstances and needs of Indigenous groups, communities and peoples is required in light of the diversity of identities, cultures and histories of Indigenous peoples. It also states that it is important to take into account the unique circumstances and needs of Indigenous elders, youth, children, persons with disabilities, women, men and gender diverse persons and two-spirit persons.

Clause 5 sets out the purposes of the Bill, which are the following:  a) supporting and promoting the use of Indigenous languages; b) supporting the efforts of Indigenous peoples to reclaim, revitalize, maintain and strengthen their languages; c) establishing a framework to facilitate the effective exercise of the rights of Indigenous peoples that relate to Indigenous languages; d) establishing measures to facilitate the provision of adequate, sustainable and long-term funding for the reclamation, revitalization, maintenance and strengthening of Indigenous languages; e) facilitating cooperation with provincial governments, Indigenous governments and other Indigenous governing bodies and organizations; f) responding to the Truth and Reconciliation Commission’s Calls to Action numbers 13 to 15 which, respectively, call on the federal government to acknowledge that Aboriginal rights include language rights, to enact an Aboriginal Languages Act and to appoint an Aboriginal Languages Commissioner; and g) advancing the achievement of the objectives of the United Nations Declaration on the Rights of Indigenous Peoples.

In Clause 6, the Government of Canada recognizes that the existing Aboriginal and treaty rights recognized and affirmed by section 35 of the Constitution Act, 1982 include rights related to Indigenous languages. The Supreme Court of Canada has stressed the importance of section 35 to the process of reconciliation and noted the integral relationship between section 35 rights and the preservation of distinct Indigenous cultures, of which language is a key component.

Clause 11 provides that a federal institution may cause any document to be translated into an Indigenous language and that interpretation services be provided to facilitate the use of an Indigenous language in the institution’s activities.

Finally, Clause 12 establishes the Office of the Commissioner of Indigenous languages, who will be mandated to, inter alia, support the efforts of Indigenous peoples to reclaim, revitalize, maintain and strengthen Indigenous languages, facilitate dispute resolution and review complaints to the extent provided for in the Act.

Freedom of expression (section 2(b))

Section 2(b) of the Charter guarantees everyone the right to freedom of expression. The protection of freedom of expression is premised upon fundamental principles and values that promote the search for and attainment of truth, participation in social and political decision-making and the opportunity for individual self-fulfillment through expression.

Section 2(b) protects activities or communications that convey or attempt to convey meaning. Freedom of expression includes the right to use the language of one’s choice. Language can be so intimately related to the form and content of expression that the purposes for which freedom of expression is guaranteed are more fully realized when one is able to use the language of one’s choice. Language is not merely a means or medium of expression; it colours the content and meaning of expression. It is a means by which a people may express its cultural identity. It is also a means by which individuals express their personal identity and sense of individuality.

The Bill would promote the values and principles that underpin freedom of expression. By supporting Indigenous peoples in their efforts to reclaim, revitalize, maintain and strengthen their own languages, the Bill empowers them to convey meanings that may only be captured in their own language, to express their own identity, culture, spirituality, and sense of individuality, thereby promoting their self-fulfillment and self-realization.

Equality rights (section 15)

Subsection 15(1) of the Charter protects equality rights. It provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the basis of racial or ethnic origin. Equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect, and consideration.

The Bill would provide a benefit to Indigenous peoples (First Nations, Métis and Inuit) that is not provided to other groups. Although race- or ethnicity-based distinctions can engage the protection of subsection 15(1), supporting Indigenous peoples in their efforts to reclaim, revitalize, maintain and strengthen their languages, including through long-term funding, promotes their substantive equality and is consistent with the core values that underpin the right to equality. Through this Bill, the Government of Canada recognizes that a history of discriminatory government policies and practices were detrimental to Indigenous languages and takes specific measures to support the efforts of Indigenous peoples in reclaiming, revitalizing, maintaining and strengthening these languages. 

Achieving substantive equality for disadvantaged groups often requires making distinctions. Subsection 15(2) of the Charter clarifies that subsection 15(1) does not preclude laws, programs or activities that have as their object the amelioration of conditions of disadvantaged individuals or groups, including those that are disadvantaged because of race or ethnic origin. The Bill would promote the aims and values of the Charter’s equality rights generally and help to foster reconciliation with Indigenous peoples by acting on the Truth and Reconciliation Commission’s Calls to Action numbers 13 to 15.