Now, what is the case of the French Canadians of Ontario, on what do they rely, on what do they base their claim that French should be used in their schools? By the British North America Act it is provided that the rights and privileges enjoyed by Roman Catholics in the Province of Ontario at the time of Confederation, or by the Protestant minority in the Province of Quebec, shall not be interfered with by the provinces. Subject to these rights the provinces are given absolute power to legislate on school matters. There is the whole question so far as the legal and constitutional aspect is concerned. You have to see what in 1867 were the rights of the respective minorities in Ontario and Quebec. So far as Quebec is concerned, it is not and never was subject of misunderstanding. Everyone has agreed as to what the rights of the Protestant minority were and are, and no one has interfered with them. But it is different in Ontario. I have been there for thirty-two years, and it has always been more or less a subject of discussion and dispute. The rights of the Catholics in Ontario in 1867 were the rights given by the act of 1863.
The first part of the act gave to the Roman Catholics the right to elect trustees to conduct the Catholic separate schools, in other words the right to fully administer the schools. Other provisions of the statute dealt with the right to determine the kind and description of the schools, in other words the right to have schools where both languages would be taught, as it had been previous to 1863. Then there was the right to appoint teachers and define their duties; also to appoint inspectors or superintendents. Every one of these essential things has been wiped out and taken away from the separate schools supporters of the city of Ottawa, not in part, but wholly and completely, and conferred upon Government appointed Commissioners.
Let us see what this means. The questions involved in this controversy are in principle as essential and as important as any question that ever came before the British people. Why, it goes back to Runnymede, when this principle was settled forever—No taxation without representation. The French-Canadians of Ottawa are compelled to pay taxes and they have no representation. They are taxed and have to pay taxes for schools, and yet they have nothing to say regarding the expenditure of their taxes or the conduct of these schools.
What would you say if my good friend, Sir Lomer Gouin, undertook to say to the city of Quebec: I don't like the members that you send to represent you—they don't do things as I like to have them done, and hereafter you are not going to select your representatives, but I am going to name or appoint them for you; or if he arrogated to himself the right to have your dissentient schools conducted and administered wholly not by your elected trustees or Commissioners, but by certain persons chosen by him. Gentlemen, I say in all solemnity that there is no difference between that and the things that have been done in the Province of Ontario. Am I not right in saying that this question should be of the deepest concern to all lovers of British constitutional law and constitutional history?
Now, as to the second point, the kind, number and description of schools.
Prior to Confederation there were French schools—not English-French schools, but exclusively French schools under the Department of Public Instruction in the Province of Ontario. I use that term advisably, because it was so called at that time, although it is now called the Department of Education. Time and again it occurred, with the approval of the educational authorities, that teachers who could not speak a word of English, but only German or French, were employed in the schools of Ontario. There were schools in the Province of Ontario before Confederation where no English was taught, and that with the sanction of the Department. In many parts of Ontario there were schools, many of them, where there was only French, and there were many others where both the English and the French languages were taught. They had French teachers and French inspectors, and French text books. I am referring to this in order that you can fix in your minds what were the conditions in 1867. In other words, what were the conditions which the Act of Confederation, an Imperial Act, has made perpetual in Ontario, as well as in Quebec.
We had these rights in 1867; in what way and when have we been deprived of these rights—on what authority have they been taken away? Absolutely none. There was only one authority that could deprive the Roman Catholics French-Canadians of Ontario of their rights in that province, or the Protestant minority of their rights in the Province of Quebec. There is only one authority, not the Ontario Legislature, not the Quebec Legislature, not the Dominion Parliament, but the Parliament of Westminster. The Act of Confederation is an Imperial Act which no Canadian Parliament or Legislature can in any way affect. The Imperial Parliament has not dealt with the question. If I have made it clear to you that there were rights which were enjoyed in 1867, since those rights have not been touched by the only authority that could touch them—have I not made out an absolute case that those are rights which we had then and still have to-day, and ought to have now and in the future?
Section 133 of the British North America Act—and I refer to it because, strangely enough, it has been quoted and relied on by both sides in this controversy—section 133, you will remember, provides that either the English or the French language may be used in the Parliament of Canada, the Legislature of Quebec, and the Federal and Quebec provincial courts, and it places these two languages on an equal footing in such Parliament, Legislature and courts. It is argued by those opposed to us that that is a restrictive provision, a limitative provision, on the doctrine “inclusio unius fit exclusio alterius.” I do not think so at all. Here were new forums being created: The Parliament of Canada, the Federal Courts, where it was absolutely necessary that the language to be used should be determined without doubt—there should be no doubt that in the Federal Parliament both languages should be official—no doubt that is what was in the minds of the fathers of Confederation.
But, they say, why mention Quebec at all? Why did they say that English could be used in the Legislature of Quebec and why not say that French could be used in the Legislature of Ontario?
The answer to that is that the English language was safeguarded in the Legislature of Quebec simply because our English friends were on that occasion, as usual, a little more practical than we are. They wanted the English language to be official in the Legislature of Quebec, and asked to have it stated in the Act. That was a concession to the Protestant, or rather to the English-speaking minority in the Province of Quebec. Section 133 is not limitative. Some people are apt to look upon this matter in a very strange way. We are told that we are not to claim any rights for the French Language in Ontario, because there is no text of law. I ask you, gentlemen, if you have ever seen anywhere a text of law which says that the English language is the official language of the British Empire? No, there is no such law, none anywhere, not at Westminster, at Ottawa or at Toronto. Why? Simply because language is a natural right—there are rights that we all enjoy which do not need the sanction of law, the right to live, to breathe, the right of property—these are rights which do not need the sanction of law, that is, of any special text of law, but belong inherently to all individuals and everyone is entitled to their enjoyment without any text of law. These rights are the necessary attributes of individual freedom.