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Why the linguistic rights of Canada’s indigenous peoples must include the obligation to an IAL


Machjo

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An Esperanto-speaking friend of mine was trying to get an opinion piece (of which I'm pasting the English version below) published in different English and French publications. They all seem to have turned him down. He decided to share it with me to see what I thought of it, and I found it shocking.

Though I see why some would disagree with his recommendations and conclusions, I would have thought that they might have wanted to publish it just because of the stats it presented. While one could disagree with his recommendations, one would think they'd at least agree with his conclusion that official bilingualism is a fundamentally broken system. I present the article with his permission below:

Why the linguistic rights of Canada’s indigenous peoples must include the obligation to an IAL

The Assembly of First Nations has long called on Ottawa to make Canada’s indigenous languages co-official with English and French.[1] Based on my experience with official bilingualism, I don’t see how Parliament could do that without the adoption of an international auxiliary language (IAL) at least in public-school second-language instruction as multilingual states like Indonesia and Tanzania have done. The following might illustrate my point more clearly.

A few years ago, members of the Ottawa Police Service arrested my wife for working in Canada without the proper authorization to do so and then transferred her to the local Ottawa CBSA office. A CBSA officer interviewed my wife, had her detained, and then referred her to the IRB.

 At her bond hearing, my wife conclusively proved the falsity of the CBSA officer’s interview notes claiming that she didn’t know my name, where I lived, any local tourist area, and other knowledge, which prompted the judge to grant her bond. Around a week after her release, I read the police and CBSA reports. The police reports revealed a plethora of orthographic and grammatical errors and, as I continued to analyze them, possible basic lexical errors. The CBSA officer’s report revealed even more broken English to the point that I struggled to understand parts of it.

My wife later got her hearing. Since the police and CBSA reports had already been printed in what some might call English and my wife’s counsel didn’t know French, the hearing proceeded in what was supposed to be English. The judge ruled in my wife’s favour in part because he correctly concluded that a reasonable person could understand the reports only vaguely without further precision from their authors (whom the Minister’s counsel refused to present for questioning), but only after the state had already spent probably tens of thousands of dollars all because a CBSA officer decided to interview my wife in an official language the officer herself didn’t know.

About a week after the Minister appealed the decision, I received the hearing transcript. Since I’d not been allowed inside the hearing room until after the judge had decided to render his decision, I was about to read the transcript for the first time. The transcript revealed that the Minister’s counsel so struggled to understand parts of my wife’s affidavit printed in Standard English that the judge had to correct her a few times throughout the hearing.

In hindsight, the above shouldn’t have surprised me. As a multilingual former expatriate French-Canadian with an interest in languages and language policy, I already knew long before my wife’s arrest that around half of Canadian adults possesses functional literacy in neither official language,[2] that core French and French immersion courses in New Brunswick give success rates of around one and ten percent respectively,[3] that Ontario and Quebec public schools struggle to find enough qualified second-language teachers to fill the demand,[4][5] that the Government of Canada must compete fiercely with the private sector for the few competent official-language speakers that the market can supply, and (contrary to popular belief) success rates in Europe are not much better when one reads the data.[6] I also already knew that English orthography is around three times more difficult to learn than those of Finnish, German, and Greek[7] and that 150 hours of Esperanto suffice to reach a level that requires at least 1500 of English.[8]

I can’t imagine that I’m the only multi-literate (as opposed to merely officially bilingual) resident of Canada who has faced a language barrier before the Government of Canada in its own official languages. In fact, even our own Members of Parliament depend on professional interpreters like UN ambassadors do to communicate with their colleagues and compatriots. How would Canada translate our laws, require businesses to package and label products, and provide other services in over fifty languages when our Members of Parliament themselves can’t learn the two we have now? Add to that the gross inadequacy of the British adversarial system (compared to the inquisitorial one) when the participants must communicate in a second language or through an interpreter!

With the above in mind, I don’t see how indigenous peoples will convince their sympathizers to further increase the number of official languages in the Canadian Charter of Rights and Freedoms, without first expanding our understanding of indigenous language rights to include not only the right to the mother language, but the obligation to an international auxiliary language [whether Esperanto, Chinuk Wawa (in its present or a revised form), or some other easy-to-learn language for practical intra- and international communication] too. Given how few Canadians successfully learn our present official languages well, many might welcome this new obligation for the sake of reconciliation and a complete knowledge of a common second language for all Canadians.

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3 hours ago, Hates politicians said:

English only, period. The indians were imigrants too. They came across the land bridge. There is no proof they were here first as they killed off lots of others

Standard or broken English? If standard, then few government officials will know any other language. How would an arresting officer, a police officer, or a judge communicate with a suspect from Quebec or Nunavut for example?

If Broken English, then how do we ensure precise communication?

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14 hours ago, Hates politicians said:

English should be the only official language. Period

Right. even our police and CBSA officers and even Minister's counsels who work in English are working in broken English. Where are we going to find these competent English speakers?

Edited by Machjo
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Machjo O again I must commend your logic and writing style.  On this issue I do believe our existing legal system de facto recognizes all indigenous languages as official languages in Canada because of the reference put into the Charter. It doesn't specifically say so but  in all the courts in Canada translators are required in the indigenous language of the appropriate party whether its for a provincial or federal legal subject due to that legal assumption all courts now make. In theory no provincial law however directly applies to an indigenous person unless its probably a Highway Traffic Act offence.  

Your argument is actually correct and logical as to auxillary languages but it in specific regards to indigenous languages since in practice it is now  addressed it is a moot point in regards to indigenous  languages. However you raise a huge issue once say Spanish or Mandarin or Punjabi grows to the size of a majority language. The way the Charter is written it opens the window to add other language requirements if the courts continue down the road of interpreting the Charter as widely as possible in application. 

We know because of the Official Languages Act of Canada which applies to federal laws, providing bilingual English-French services across Canada for its laws is a  mandatory requirement not withstanding the actual number of French or English citizens in the specific geographic area of application.

On the other hand as you also probably know, many provinces including Quebec  can abd have  opted out of being bilingual for laws under exlusive  provincial jurisdiction  and at this time, only  Manitoba, New Brunswick and Ontario are officially bilingual provinces provincially when it comes to providing provincial government and court services for laws that are exclusively provincial in jurisdiction .

The Canada Act and Constitution Act and the division of laws says only provinces can pass laws pertaining to legal subjects in their exclusive domain and so that would include language rights pertaining to those provincial laws. The Charter has not been used by theSupreme Court of Canada to challenge the province's exclusive power to define  language rights on provincial jurisdiction laws at this time and Quebec used the Not Withstanding clause to justify laws that in theory violated the Charter and deliberately institutionalized discrimination against non French language rights in the name of protecting French language rights.

That is interesting because the same people who remained silent when Quebec invoked the notwithstanding clause probably now call Doug Ford a fascist for doing the same showing clear political sentiment can be  behind the opinions of people as to how that clause should be used. The fact is constitutionally it is clear, municipal laws do not exist unless the provinces first pass laws to delegate powers to municipalities. So what Ford did was not wrong in principle just wrong in procedure.

Legally had he followed proper procedure, he would first have had to pass a specific piece of legislation shrinking the municipal government of Ontario. Had he done that the City would probably not have received the decision it did from a lower court which in essence said follow the proper procedures Mr. Ford.  Had the City challenged the legislation once properly passed they would have lost but it would have gone all the way to the Supreme Court of Canada for a reference and between the process of passing the legislation and getting it confirmed by the Supreme Court of Canada, that would have taken 1-5 years. Ford  wants to skip all that and try to avoid the lengthy and proper procedures. The lower court is technically incorrect in trying to say municipal politicians have rights it is correct in saying Ford did not follow the proper procedures in invoke a provincial law. Politicians do not have human rights  in the sense of being guaranteed a job. Their powers only exist as Municipal representatives if and only ifthe Municipal Act of Ontario which is created by the provincial government gives them that power. However by by-passing the proper legislative procedure, Ford exposed himself to this legal  political manouver by self serving municipal politicians seeking to protect their jobs  who could then argue by his mot following the procedures properly his actions became  unconstitutional.

Ford's reference or pledge or threat to use the Not Withstanding  clause is high handed,  but no more high handed than how the Quebec government used it to screw English people of their rights. So  to selectively argue Ford can not do that is interesting, Nowhere in the Charter does it say how that clause is to be used or not used, i.e., it does NOT specify the  grounds for when it can or can not be invoked.

The Supreme Court of Canada would be hard pressed if asked for a reference to on the one hand says the Charter should be used as widely as possible to promote individual rights but then in the next breath continue to ignore English Quebecers and as well, prevent provinces from using the clause which was created precisely to offset that Charter rights. If the Not Withstanding  clause was not intended to be used it should not have ben placed in the Charter in the first place . It's like giving someone a fork and knife and a full plate of food and then telling them they should not assume they should eat the food and use the knife and fork. It's an absurd legal fiction as some now do to blow the trumpet of moral indignation over Ford but remain silent on how it was used in Quebec.

Interestingly when I got my Master's in Law I was fortunate to meet Prof. Hogg co-author with Trudeau of the Charter. He said the two never intended the Charter to be used as it is now by the Supreme Court of Canada in such a wide application to all laws and they only threw in  the Not Withstanding clause in a last minute exercise  to placate the Western provinces to get them to sign on to the Charter.

The fact is you have a Charter now being used in a way its co-authors never intended it to be used by the Supreme Court of Canada and some selectively only focusing on  telling Ford he's using Charter in a way it was never supposed to be used when the Supreme Court of Canada has enshrined the principle of using it in ways it never intended to be used.

Think about that for a second. Who said the Charter must be used as widely as possible and not as narrowly as possible? The Supreme Court of Canada did, not the people who wrote the law or the elected officials who passed the law. The Supreme Court of Canada said that. They created the scope, extent, nature and intent of the Charter of today,  not the people who wrote it or the people it claims to protect.

That is something unusual. It ordinary law, courts don't do that. Courts  are  supposed to limit their interpretation of ANY  law using the plain language meaning and not assume anything not written specifically.  They are not supposed to invent NEW law. They are supposed to be limited to only what is written and if a party asslst for  a meaning other than what is written they must go back and change the law to be specific and not ambiguous to conform to the meaning they want.

The Supreme Court of Canada has taken an activist approach, i.e., one that prescribes new meanings to the Charter as opposed to sending back ambiguous clauses and asking the government(s) to re-write to clarify what they meant.. British law which is what our legal system is  is based on, particularly our  constitutional model of law,  was never designed for courts to create new laws.

The US can when Democrats appoint activist Judges take the approach our Supreme Court now does which is to event new law, or it can appoint fundamentalist conservatives who are loath to create new precedent or new meanings out of the law unless the wording specifically says so..

Whether a court is activists or traditionalist It comes down to political sentiment. Harper and now Ford believe legislation written by elected officials not Judges should create the intent of a law and how it is to be applied. The problem is when they write ambiguous or unclear laws, it opens the window for courts to be unable to resist  coming  up with new meanings that were not intended.Courts should whenever possible not create laws. If a law is not clear their proper role should be to send it back to the legislature to  re-write the law through amendments to be more specific and give the wording in front of them plain meaning only. They do not. They have turned "plain meaning" into the concept of what they call "common sense" meaning, i.e., a new context they believe makes sense but is not written in the legislation. They argue this common sense meaning by using a line of reasoning that is often arbitrary, and makes assumptions about context from previous case interpretations of previous laws. Some try remain consistent with older laws, others want to create brand new meanings. Its not as logical as people think it is. There is subjectivity in the decisions of Judges in many of these decisions.

All that said, and I mention it, because Quebec abused language laws  in its own province against the English and got away with it by using the Not Withstanding clause and the federal government and the  Supreme Court of Canada  did not challenge that use  of the clause setting a precedent before nd after the creation of the Charter.

The Supreme Court of Canada when it comes to interpreting the ambiguous Charter has for the most part given it as wide an application as possible in invoking/creating  rights. I  question why it was used that way to give convicts the right to vote or non Canadian citizens the right to use the Charter to get rights of Canadian citizens. I think the Supreme Court may have gone too far in some not all cases. I think in those two cases for  example it was wrong.

So in conclusion to your comments, while I think you are absolutely correct about auxillary language rights, I would caution  in practicality it becomes ultimately a political issue not a legal one that provinces can veto or limit with any of their laws. When and if a language other than Indigenous ones or  English or French becomes a majority language, it is theoretically possible at that point the Supreme Court of Canada might interpret them as a language in need of equal protection. We shall see. They didn't with English in Quebec but in years to come they might with other languages given the politically trendy and politically correct concepts of the day. It's also possible if a majority of voters who are neither English or French vote in particular leaders, they may try use the legislative process to invoke discriminatory laws in favour of their religion or language and if that happens whether the Supreme Court of Canada would challenge that remains to be seen.  with that. They seem to have been impotent over Quebec discriminating against English and now with Ford and the City of Toronto.

While I appreciate the Supreme Court of Canada is the ultimate arbitrator of legal meaning, I also contend it should not where meaning is not PLAIN, i.e., clear and precise, create new meaning but instead send it back to the politicians for amendment.

On the other hand if you violate clear and precise procedures of our legal system, all courts as did this lower court with Ford have  an obligation to challenge that error and stop the action taken until proper procedures are followed.

Ford needs to slow down and cool it down with the Trump behaviour. This bully boy look how tough I am shtick is not helpful. He should go back and review the Premiership of William Davis and how Davis handled language rights and constitutional issues. That for me is a model of apolitical, neutral, logical approach that balances provincial government rights in a greater context where there is tension with federal and municipal laws. Flamboyant ego driven ultimatums like the ones Ford, Trudeau, Trump and the former Trudeau used may ultimately alienate more than they unite.

 

 

Edited by Rue
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1 hour ago, Rue said:

Machjo O again I must commend your logic and writing style.  On this issue I do believe our existing legal system de facto recognizes all indigenous languages as official languages in Canada because of the reference put into the Charter. It doesn't specifically say so but the courts in Canada translators are required in the indigenous language of the appropriate party whether its for a provincial or federal legal subject due to that legal assumption all courts now make. Any  Your argument is actually correct and logical as to auxillary languages but it in specific regards to indigenous languages since in practice it is now  addressed it is a moot point in regards to those languages. However you raise a huge issue once say Spanish or Mandarin or Punjabi grows to the size of a majority language. The way the Charter is written it opens the window to add other language requirements if the courts continue down the road of interpreting the Charter as widely as possible in application. 

Because of the Official Languages Act of Canada which applies to federal laws, providing bilingual English-French services across Canada for its laws is a  mandatory requirement not withstanding the actual number of French or English citizens in the specific geographic area of application.

As you also probably  know many provinces including Quebec  opted out of being bilingual for laws underr exlusive  provincial jurisdiction  and at this time, only  Manitoba, New Brunswick and Ontario are officially bilingual provinces provincially when it comes to providing provincial government and court services for laws that are exclusively provincial in jurisdiction . The Canada Act and Constitution Act and the division of laws says only provinces can pass laws pertaining to legal subjects in their exclusive domain. The Charter has not been used by the Supreme Court of Canada to challenge that to impose language rights on provincial jurisdiction laws at this time and Quebec used the not withstanding clause to justify laws that violated the Charter and institutionalized discrimination against non French language rights.

That is interesting because the same people who remained silent when Quebec invoked the notwithstanding clause now call Doug Ford a fascist for doing the same showing clear political sentiment is behind the opinions of people as to how that clause should be used.

The fact is constitutionally it is clear, municipal laws do not exist unless the provinces first pass laws to delegate powers to municipalities.

What Ford did was not wrong in principle just wrong in procedure. Legally had he followed proper procedure, he would first have had to pass a specific piece of legislation shrinking the municipal government f Ontario. Had the City challenged the legislation they would have lost but it would have gone all the way to the Supreme Court of Canada for a reference and between the process of passing the legislation and getting it confirmed by the Supreme Court of Canada, that would have taken at least 5 years. Ford skipped all that and tried to avoid the lengthy and proper procedures. The lower court is technically incorrect in trying to say municipal politicians have rights. They in fact do not. Their rights only exist of the Municipal Act of Ontario which is created by the provincial government says so.

However by by-passing the proper legislative procedure, Ford exposed himself to this political manouver by self serving municipal politicians who in effect said by not following the procedures properly that was unconstitutional.

Ford's use now of the clause is high handed but no more high handed than how the Quebec government used it and to selectively argue Ford can not do that is interesting, Nowhere in the Charter does it say how that clause is to be used, i.e., the grounds for when it can or can not be invoked. The Supreme Court of Canada would be hard pressed if asked for a reference to on the one hand says as it doe now the Charter should be used as widely as possible to promote individual rights but then in the next breath also be used to prevent provinces from using the clause which was created precisely to offset that otherwise individual rights power.

If the clause was not intended to be used it should not have ben placed in the Charter. Its like giving someone a fork and knife and a full plate of food and then telling them they should not assume they should eat the food and use the knife and fork.

Its an absurd legal fiction. Interestingly when I got y Master's in Law I was fortunate to meet Prof. Hogg co-author with Trudeau of the Charter. He said the two never intended the Charter to be used as it is now by the Supreme Court of Canada in such a wide application to all laws and they only through the notwithstanding clause in to placate the Western provinces to get them to sign on to the Charter at the last moment.

The fact is you have a Charter now being used in a way its co-authors never intended it to be used and people telling Ford he's using the Charter in a way it was never supposed to be used when the Supreme Court of Canada has enshrined the principle of using it in ways it may not have been intended to be used.

Think about it. Who said the Charter must be used as widely as possible and not as narrowly as possible? Not the Charter. The Supreme Court of Canada said that. They created the extent, nature and intent of the Charter not the people who wrote it. That is something unusual. It ordinary law, courts don't do that. They are supposed to read any law using the plain language meaning and not assume anything and state to the parties, they don't assume, they only assume what is written and if you want a meaning other than what is written go back and change the law to be specific and not ambiguous.

The Supreme Court of Canada has taken an activist approach, i.e., one that prescribes new meanings to the Charter. British law is baded on a constitutional model where this is not done. This is why for example Britain continues with an unwritten constitution. It does follow the past until specifically something new and clear is placed in legislation.

The US can when Democrats appoint activist Judges take the approach our Supreme Court does, or it cab appoint fundamentalist conservatives who are loath to create new precedent or new meanings out of the law.

It comes down to political sentiment. Harper and now Ford believe legislation written by elected officials not Judges should create the intent of a law and how it is to be applied. The problem is when they write ambiguous or unclear laws, it opens the window for courts to interpret and come up with meanings that were not intended. If that is the case the legislature must re-write the law through amendments which is what Ford should have done.

Now he will short cut the process. He's ultimately right but going about it the wrong way opening the door for others to abuse the power he is using.

All that said, and I mention it, because Quebec abused language laws  in its own province against the English and got away with it  witht he same people who now with Ford, suddenly feel morally outraged.

Individual, language, cultural, human rights, they open a kettle of worms. When you are to the left of centre you tend to want the government to initiate all kinds of standards and regulations how we behave, and if you are on the right of centre the exact opposite stating such things should rest with the individual to decide.

The Supreme Court of Canada when it comes to interpreting the ambiguous Charter has for the most part given it as wie an application as possible which of course I question. I question why it was used that way to give convicts the right to vote or non Canadian citizens the right to use the Charter to get rights of Canadian citizens.

I think in those two cases it was wrong.

In conclusion to your comments, you are absolutely correct about auxillary language rights, but in practicality it becomes ultimately a political issue not a legal one that provinces can veto or limit with any of their laws. When and if a language other than Indigenous ones or  English or French becomes a majority language, it is theoretically possible at that point the Supreme Court of Canada might interpret them as a language in need of equal protection. They didn't with English in Quebec but in years to come they might with other languages given the politically trendy and politically correct concepts of the day. Its also possible if a majority of voters who are neither English or French vote in particular leaders, they may try use the legislative process to invoke discriminatory laws in favour of their religion or language and how the Supreme Court of Canada would deal with that will be interesting. They seem to have been impotent over Quebec discriminating against English and now with Ford.

 

I would be curious as to your thoughts on an IAL as a second-language in high schools. For example, we know how much of a miserable failure English and French as second languages are across Canada. These languages are so difficult to learn we struggle to teach enough teachers, let alone students. Research shows that 150 hours of Esperanto give the same results as 1500 of English and French is around as difficult to learn as English. We know Canada's high functional illiteracy rates and how even our Members of Parliamen, judges, and Ministers' counsels t can't even communicate with one another effectively.

With the above in mind, would it not make sense to allow public schools across Canada to teach Esperanto to fulfill high-school second language requirements given how it's around ten times easier to learn than either English and French and given how even our judges and counsels and MPs can't even learn them well?

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Lol good luck on that one. Mach I think we should require all Canadians to learn French and English in elementary and high school and then let them choose a third language of any kind as an optional course-in high school..in  other words, pretty much the way it is now.  I think its good if your kid is Portugese, Italian,  Greek or Spanish or Chinese, whatever, you encourage them to retain that language.  The studies show, the more languages you speak the more likely you will be open-minded and flexible in the way you deal with things.

Spanish is the fastest growing language in Toronto  and the second largest in Toronto  having replaced Italian and way ahead of Punjabi, Urdu, Mandarin, Tagalog.  Hola!

I can teach you some Yiddish, here you go:

Justin Trudeau........putz

Donald Trump.........shmuk

Melania Trump.......shixa

Doug Ford...............matzah ball

 

 

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10 minutes ago, DogOnPorch said:

Wouldn't we be better off learning Arabic or Chinese as a third? The languages of our masters?

You remind me off the guy who was a fascist when the fascists were in power and a commie when the commies were in charge - its no wonder you're so well versed in the Koran.

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19 minutes ago, DogOnPorch said:

Wouldn't we be better off learning Arabic or Chinese as a third? The languages of our masters?

If a French Canadian could learn the grammatically difficult Arabic language and the scripturally difficult Chinese, then he could learn the at least relatively easier English too. the point is he can't even learn English well, so how will he learn Arabic and Chinese?

As to the point of speaking different languages opening one's mind, I agree. I speak a few languages too and even have friends who share no common language with one another and have had friends with whose friends I shared no common language. Knowing different languages is great at a personal level. But I sure wouldn't want language policy in Air Traffic control and between pilots being a free for all.

Parliament and the courts are the same thing. We're not talking about personal bilingualism here.

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2 hours ago, Machjo said:

If a French Canadian could learn the grammatically difficult Arabic language and the scripturally difficult Chinese, then he could learn the at least relatively easier English too. the point is he can't even learn English well, so how will he learn Arabic and Chinese?

As to the point of speaking different languages opening one's mind, I agree. I speak a few languages too and even have friends who share no common language with one another and have had friends with whose friends I shared no common language. Knowing different languages is great at a personal level. But I sure wouldn't want language policy in Air Traffic control and between pilots being a free for all.

Parliament and the courts are the same thing. We're not talking about personal bilingualism here.

 

I'm just joshing. But still...

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2 hours ago, eyeball said:

You remind me off the guy who was a fascist when the fascists were in power and a commie when the commies were in charge - its no wonder you're so well versed in the Koran.

 

Other than a year in the UK, lived in Canada all my life.

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20 hours ago, DogOnPorch said:

 

I'm just joshing. But still...

Try not to do that-certain trendy leftists don't have a sense of humour. They live on a moral throne....that and they are constipated. But hey who am I to suggest prunes. Interestingly today it doesn't matter what language we use, specific leftist morally righteous self appointed moral police will find it inappropriate and demand we be put in the institute for  the politically incorrect.

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