Document complémentaire á l'etude intitulée "Les droits des minorités linguistiques et culturelles dans un Québec souverain"

In the original study, published 1992, we examined the rights that should be recognized in a sovereign Quebec, first to the Anglophone minority, second to other minorities. this update, we examine the developments in the field of linguistic and cultural rights of minorities over the last decade, first in Canadian constitutional law, then in international law. In the Canadian constitutional case law, three developments have had -or could have- the effect of broadening the scope of the rights recognized to official language minorities (Anglophones Quebec and Francophones elsewhere in Canada), and therefore of further constraining Quebec's capacity legislate in order to protect and promote the French language. In the Beaulac case in 1999, the Supreme Court clarified the differences between, on the one hand, the judicial language rights of Francophones and Anglophones and, on the other, the right the assistance of an interpreter, implicitly contained in the right to a fair trial, which all persons are entitled, regardless of their language. With regard the categories of persons eligible for public instruction in English Quebec, the Quebec Superior Court interpreted, in the 2000 Solski case, the relevant constitutional provisions as allowing all Canadians, regardless mother tongue, usual language or language of instruction, to send one of their children to a non-subsidized private English-language school in order to obtain at the same time (or shortly thereafter) the permanent right to send all their children to English-language public schools in Quebec. Finally, in its 1998 Reference on the secession of Quebec, the Supreme Court ruled that the Canadian Constitution contains implicit structural principles of normative value, particularly the principle of respect for and protection of minorities. This ruling was followed by a number of judicial proceedings in which the petitioners asked the courts to use this principle in order to recognize linguistic rights not explicitly found in the Constitution. Generally speaking, Canadian courts have so far shown judicial restraint and refused to allow new minority linguistic rights to be derived from structural principles. As for developments in international law, in its 1993 observations in the Ballantyne case, the United Nations Committee on Human Rights concluded that the Quebec Charter of the French Language, in so far as it required the exclusive use of French in commercial signs and company names, violated the freedom of expression guaranteed article 19 of the International Covenant on Political and Civil Rights. In 1999, the Waldman case, the Committee came to the conclusion that the provisions of the Canadian Constitution creating special rights for Catholics and Protestants were incompatible with article 26 of the Covenant against discrimination. Can the same reasoning be applied to constitutional provisions that create special rights for Anglophones and Francophones? A negative response seems in order, given that, the state must be neutral in religious matters, it manifestly cannot be neutral in language matters, since it obviously must express itself in one or more languages, which are then given preferential treatment, and it clearly cannot express itself in all the languages spoken on its territory. The study also examines the Declaration on the Rights Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, adopted by the United Nations General Assembly in 1992, and the General Comment of the United Nations Committee on Human Rights on article 27 of the Covenant, adopted in 1994. Finally, with a view to ascertaining trends in international law in this area, the two main instruments adopted by the Council of Europe in the last decade, the European Charter for Regional or Minority Languages and the Framework Agreement on the Protection of National Minorities, are also taken into account. --------------------------------------------------------------------------------

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