NOTES
- See Kenneth M. Holland, “Introduction,” in Kenneth M. Holland, ed., Judicial Activism in Comparative Perspective (New York: St. Martin's Press, 1991), p. 2. Among eleven North American and European high courts, Holland ranks the United States first and Canada second.
- Michael Mandel, The Charter of Rights and the Legalization of Politics in Canada (Toronto: Thompson Educational Publishing Inc., 1994).
- Peter H. Russell, “The Growth of Canadian Judicial Review and the Commonwealth and American Experiences,” in Donald W. Jackson and C. Neal Tate, eds., Comparative Judicial Review and Public Policy (Westport, Conn.: Greenwood Press, 1992), p. 37.
- F.L. Morton and Rainer Knopff, The Charter Revolution and the Court Party (Peterborough, Ont.: Broadview Press, 2000), p. 13.
- Alan C. Cairns, “The Fragmentation of Canadian Citizenship,” in William Kaplan, ed., Belonging: The Meaning and Future of Canadian Citizenship (Montreal: McGill-Queens University Press, 1993), p. 208.
- Leslie A. Pal, “Advocacy Organizations and Legislative Politics: The Effect of the Charter on Interest Group Lobbying over Federal Legislation, 1989–91,” in F. Leslie Seidle, ed., Equity and Community: The Charter, Interest Advocacy and Representation (Montreal: Institute for Research on Public Policy, 1994), p. 148.
- Kenneth M. Holland, “Judicial Activism in Western Europe,” in Stuart S. Nagel, ed., Handbook of Global Legal Policy (New York: Marcel Dekker, 2000), p. 181.
- Rainer Knopff and F.L. Morton, Charter Politics (Scarborough, Ont: Nelson Canada, 1992), 98. The ensuing discussion draws upon their characterization of the terms.
- C. Michael MacMillan, The Practice of Language Rights in Canada (Toronto: University of Toronto Press, 1998), ch. 3.
- This explanation is offered in Ken McRoberts, English Canada and Quebec: Avoiding the Issue (North York, Ont.: Robarts Centre for Canadian Studies, York University, 1991), p. 15.
- House of Commons, Bill C-72, An Act respecting the status and use of the official languages of Canada, second session, Thirty-third Parliament, (first reading, 25 June 1987, passed 7 July 1988).
- See Official Languages Act c. 31 (4th Supplement) of the Revised Statutes of Canada, 1985, Part III.
- These points are emphasized in Ken McRae, “Official Bilingualism: from the 1960s to the 1990s” in John Edwards, ed., Language in Canada (Cambridge: Cambridge University Press, 1998), pp. 76–79.
- Joseph Eliot Magnet, “The Charter's Official Languages Provisions: The Implications of Entrenched Bilingualism” The Supreme Court Review 4 (1982), p. 170.
- Supreme Court, Reference Re: Manitoba Language Rights [1985] 2 Supreme Court Reports, p. 347.
- Ian Greene, The Charter of Rights, (Toronto: James Lorimer & Co., 1989), p. 207. Mandel observes a more self-consciously political role for the court. See Mandel, The Charter of Rights and the Legalization of Politics in Canada, ch. 3. This narrow conception would appear to be contradicted by the judgment in the Ford case concerning Quebec's Sign Law, Section 58 of Bill 101, in which the court assessed the validity of the Quebec requirement that all commercial signs be only in the French language. However, the Ford decision reflects an expansive reading of “freedom of expression” rather than “language rights” as such.
- The quotation is from the case, Société des Acadiens du Nouveau-Brunswick Inc. et. al. v. Association of Parents for Fairness in Education et. al., [1986] 1 Supreme Court Reports, p. 549. I have drawn it from Ian Greene, The Charter of Rights, 191. The second case Concerning bilingual summonses is cited as MacDonald v. City of Montreal et. al., [1986] 1 Supreme Court Reports, 460. See his Chapter 7, “Language Rights” for a useful summary of these and other Supreme Court decisions regarding language rights since the Charter.
- Supreme Court, Reference Re: Manitoba Language Rights [1992] 1 Supreme Court Reports, p. 212. Quoted from the Lexum report of Supreme Court judgments on the web at www.lexum.umontreal.ca/csc-scc/en/pub/1992/voll/texte/1992scr1–0212.txt.
- Judge Wilson, MacDonald v. City of Montreal, pp. 521- 524.
- See Greene, The Charter of Rights, pp. 190–4.
- Joseph Magnet, “Comments” in David Schneiderman, ed., Language and the State: the Law and Politics of Identity (Cowansville, Qué.: Les Éditions Yvon Blais Inc., 1991), 146. The federal position is quoted on 144.
- The case is cited as A.-G. Que. v. Association of Quebec Protestant School Boards et al.,[1984] 2 Supreme Court Reports, p. 66.
- See Wayne MacKay, “Minority Language Educational Rights Vindicated” in Schneiderman, ed., Language and the State, pp. 123–140. His discussion, however, emphasizes that Section 23 is a useful, but not necessarily decisive, resource in the face of an intransigent provincial government.
- Mahé v. Alberta, (1990) 1 S.C.R., 344.
- Knopff and Morton, Charter Politics, p. 103.
- Leslie Pal, “Official Language Minorities and the State: Dual Dynamics in a Single Policy Network” in William Coleman and Grace Skogstad, eds., Policy Communities and Public Policy in Canada (Toronto: Copp Clark Pittman, 1990), p. 178.
- Brodie, “Interest Group Litigation,” p. 365.
- Ibid., pp. 371–372.
- Quebec Association of Protestant School Boards et al. (1984), 10 Dominion Law Reports (4th), 321 at 331; quoted in Pierre Foucher, Constitutional Language Rights of Official Language Minorities in Canada, (Ottawa: Minister of Supply and Services, Canadian Law Information Council, 1985), p. 347.
- Reference re Secession of Quebec, Supreme Court of Canada; decision issued August 20, [1998]; 2 S.C.R. 217.
- R. v. Beaulac, at 24. The quotation is drawn from the Federal Court of Appeal decision in Canada (A.G.) V. Viola [1991] 1 F.C. 373, at 386–7.
- Supreme Court of Canada, R. v. Beaulac, [1999] 1 S.C.R. 768, at 6.
- See Paul Sniderman, Joseph F. Fletcher, Peter H. Russell and Philip E. Tetlock, The Clash of Rights: Liberty, Equality and Legitimacy in Pluralist Democracy (New Haven, Conn.: Yale University Press, 1996), ch. 7. Also see their “Political Culture and the Problem of Double Standards: Mass and Elite Attitudes toward Language Rights in the Canadian Charter of Rights and Freedoms” Canadian Journal of Political Science 22 (1989), pp. 259–84. For a critical assessment of these findings, see C. Michael MacMillan, “Explaining Support for Language Rights: A Comment on ‘Political Culture and the Problem of Double Standards’” Canadian Journal of Political Science 23 (1990), pp. 531–6.
- See “The Charter: Dividing or Uniting Canadians? Monograph for Canadian Centre for Research and Information on Canada” (Montreal: CRIC, 2002), p. 10. It reported that 73 percent of anglophones living outside Quebec supported French language federal government services in their provinces, and 86 percent supported the right to French language educationthe latter figure being noteworthy as a level of support almost equalling the 88 percent support in Quebec for English language education within that province. More significantly, data from the same study indicated that there is majority support in every region of the country for maintaining official bilingualism—a substantial change from 1985. See Andrew Parkin, “The Charter: Dividing or Uniting Canadians?” a paper presented at the conference, Canadian Rights and Freedoms: 20 Years Under the Charter (Ottawa, April, 2002).
- Paul Sniderman et al., The Clash of Rights, Figure 7.2, 201.
- An analysis of the impact of the Canadian Charter on public policy concluded that the imputed ideological leanings of the Supreme Court justices were only a minor factor in their decisions on rights. See Charles R. Epp, “Do Bills of Rights Matter? The Canadian Charter of Rights and Freedoms” American Political Science Review 90 (December, 1996), pp. 765–779.
- R. v. Beaulac, [1999] 1 S.C.R. 768. It appears on page 10 of the text of the decision available through a joint project between the Supreme Court of Canada and the LexUM team of the Centre de Recherceh en Droit Public at Université de Montreal. The address is www.lexum.umontreal.ca/csc-scc/en/pub/1990/voll/texte/1990scr1–0342.txt, accessed June 14, 2002.
- The significance of such support structures for rights documents to be effective is emphasized in Epp, “Do Bills of Rights Matter,” pp. 766–7, 769–71.
- Raymond Tatalovich, Nativism Reborn? The Official English Movement and the American States (Lexington, Kentucky: University of Kentucky Press, 1995), pp. 21–2, 33–62. 65–9.
- Some sources mention a fourth case, Hernandez v. New York, 500 U.S. 352(1991), where Equal Protection violations were alleged in jury selection because peremptory challenges by the prosecutor removed two Hispanics from the jury which eventually convicted Hernandez. The defendant alleged ethnic discrimination but the prosecutor argued that, although the disputed jurors were bilingual, he had doubts about their willingness to accept the finality of the court interpreter's translation of testimony from witnesses into English. The Supreme Court, like the lower courts, believed the prosecutor acted in a race-neutral manner, although the majority opinion did not resolve “the more difficult question of the breadth with which the concept of race should be defined for equal protection purposes,” meaning that a wholly new issue would be involved had the prosecutor justified his peremptory challenges because he did not want Spanish-speaking jurors. Thus the Justices did not need to ponder whether language, like skin color, was a proxy for race under equal protection analysis.
- lva Gutierrez v. The County of Los Angeles, etc., United States District Court for the Central District of California, No. CV 85–2172-RG (1985).
- Gutierrez v. Municipal Court of the Southeast Judicial District, 861 F. 2d 118 (1988).
- Municipal Court of the Southeast Judicial District, County of Los Angeles, et al. v. Gutierrez, Alva 490 U.S. 1016 (1989).
- Michele Arington, “English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights,” Journal of Law and Politics 7 (1991), p. 335.
- Municipal Court of the Southeast Judicial District, County of Los Angeles, et al. v. Gutierrez, Alva 490 U.S. 1016 (1989).
- Linda Greenhouse, “Justices Set Aside Reversal of ‘English Only’ Measure,” New York Times (4 March 1997), A9.
- For Justices, “the Reagan administration wanted to sponsor ardently conservative candidates for the high court.” See David Alistair Yalof, Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees (Chicago: University of Chicago Press, 1999), p. 134.
- Arington, “English-Only Laws and Direct Legislation: The Battle in the States over Language Minority Rights,” p. 339.
- Ibid., pp. 335–6.
- Jeffrey Segal and Harold Spaeth, The Supreme Court and the Attitudinal Model (Cambridge, UK: Cambridge University Press, 1993).
- Walter F. Murphy, Congress and the Court (Chicago: University of Chicago Press, 1962), 246–247.
- See Tatalovich, Nativism Rebrn?, ch. 6.
- See Brief of U.S. English as Amicus Curiae in Support of Petition for Writ of Certiorari, Alexander v. Sandoval, No. 99–1908 (July 14, 2000); Brief for U.S. English as Amicus Curiae in Support of Petitioners, Alexander v. Sandoval, No. 99–1908 (November 13, 2000).