by Richard Fidler
The October 22 ruling by the Supreme Court of Canada overturning yet another section of Quebec’s Charter of the French Language (CFL) has been met with angry protests by a broad range of opinion in the province.
The Court declared unconstitutional a law adopted unanimously by Quebec’s National Assembly in 2002 that closed a loophole in the Charter being used to circumvent the requirement that Quebec students attend French-language schools. In effect, the judgment restores free choice of language of elementary schooling for parents rich enough to send their kids for a few years to private schools not funded by the Quebec government before enrolling them in English public schools.
More than 30 years ago, Quebec passed laws making attendance at French schools mandatory for all Francophone and immigrant children enrolled in government-funded schools. The legislation was adopted in response to mounting concern over the fatal attraction of English in a province economically dominated by Anglophone capital and constitutionally lacking sovereignty in key areas of jurisdiction crucial to its definition as a Francophone nation within the Canadian state. Public education in French has long been seen as crucial to integrating immigrants into the province’s majority Francophone society.
The Court’s decision was a rude reminder to Québécois that the key legislation, the popular Charter of the French Language, adopted in 1977 as Bill 101, continues to be subject to attack by the federally-appointed judiciary using provisions of Trudeau’s 1982 Canadian Charter of Rights and Freedoms that were specifically aimed against the Quebec language Charter. In past decisions, the Supreme Court has overturned other provisions of the CFL that made French the sole language of Quebec courts and legislation, public advertising and corporate names, and that restricted English-language public schooling to children with a parent who had attended an English elementary school in Quebec.
In the latter case, Quebec’s National Assembly had responded to the Court’s ruling by making English-language education in a public or private government-subsidized school available to any child educated in English in Canada or having a parent educated in English in Canada – thus bringing the CFL into compliance with the Canadian Charter. But it insisted that English had to be the “major part” of that education in the minority language. This qualifying clause was designed to limit attempts by some parents to make their children eligible for English schooling by sending them for a brief period to private English schools, then asking that they be admitted to English-language public or subsidized schools.
Important progress under Law 101
The French-language Charter’s requirement that non-Francophone immigrants to Quebec, with few exceptions, send their children to French-language schools was widely accepted and within a few years a whole new generation of minority Anglophone and immigrant community youths were emerging from the public school system with fluency in French, the majority language. These are commonly referred to as the “children of Bill 101.” It seemed that for the first time in many years Quebec was reversing the trend toward anglicization and the decline of its defining French-language culture.
But English continues to exert a powerful force of attraction in Quebec, especially in recent years with the growth of globalization and the Internet. This pressure was felt most acutely in the educational system. Before long, private English “bridging” schools not subsidized by the government were springing up to dispense minority-language education to students for a brief period that would qualify them for admission to English public or subsidized private schools.
Between 1982 and 1989, only a few hundred pupils were admitted to English schools after a brief period in a private unsubsidized school. However, between 1998 and 2002 this number climbed to almost 5,000, or 5% of the total enrolment in the Quebec English school system. Thus in 2002 the National Assembly adopted Law 104, which amended the CFL to provide in part that, in determining eligibility for English schooling, no account would be taken of English-language education received at an unsubsidized school. Predictably, this legislation was challenged by Anglophone rights groups.
In a 2005 judgment (Solski), the Supreme Court held that while Quebec was entitled to restrict access to English schools, the determination as to whether prior attendance at an unsubsidized private English school constituted the “major part” of a child’s education had to be determined not just numerically (as in the number of years of attendance) but qualitatively – that is, that each individual case was to be considered on its merits and that it sufficed if such education was “a significant part, though not necessarily the majority, of the child’s instruction.”
In last week’s judgment (Nguyen), the Court went further. It held that the Law 104 prohibition against taking a child’s “pathway” in an unsubsidized private school into account is “excessive.” It therefore invalidated the provision of the French-language Charter enacted unanimously in 2002 by the Quebec National Assembly.
Court’s analysis ‘superficial’ and insensitive
The Supreme Court ruling was widely denounced, including by all the major union centrals in Quebec. The Centrale des syndicats du Québec (CSQ) charged the Court with using “political and economic considerations” to dilute the “message that our language is the language of the common public culture and the language of integration in Quebec.” The Quebec Labour Federation (FTQ) protested: “We cannot leave it to the good judgment of administrators, however impartial, to analyze case by case and in which circumstances entire families could exempt themselves by a subterfuge from the provisions of the law.” By allowing non-Anglophones and future workers to choose English in a society that is majority Francophone, the FTQ said, the decision served to undermine the labour movement’s strenuous efforts for many years to establish French as the language of work.
“Rarely have we seen a unanimous judgment of the Supreme Court arouse such reprobation in Quebec,” wrote Michel David, a political columnist in the Montréal daily Le Devoir. Drawing attention to editorial support for the judgment in the rest of Canada, he concluded that “In English Canada they simply refuse to recognize that French is threatened in Quebec. To claim the contrary necessarily denotes bad faith and an attempt to promote Quebec sovereignty.” In the federal Parliament, the Bloc Québécois was the only party to denounce the judgment, although the NDP – in an effort to distance itself from the Court’s judgment – presented a motion affirming that Quebec has “the right to ensure that immigrants arriving in Quebec learn French first and foremost.”
André Braën, a law professor at the University of Ottawa, expressed a typical reaction of Quebec legal scholars. “This decision,” he wrote in Le Devoir, “demonstrates the lack of sensitivity that the Supreme Court of Canada accords to the Quebec reality. It is based on a superficial analysis of the linguistic problematic that takes no account of the asymmetry prevailing in this area between Quebec and the rest of Canada. In Quebec there is a private educational system that has no equivalent in the other provinces.
“In Quebec, it is the Francophones and the Allophones [those with neither French nor English as their mother tongue], and not the Anglophone minority, who are fighting for access to the English school. Even today, a large proportion, if not a majority of the immigration settled in Quebec, chooses English as its language of use….
“In short, the Court has reintroduced in practice a limited form of free choice. It even indicates how to achieve it: spend a little more time in an unsubsidized private English school that does not advertise itself as a “bridging” school. And the dirty work will be left to the government if it wants to limit the number of authorizations given by way of exception, whether for family or humanitarian reasons, special learning or other needs….
“We know that in Quebec free choice of the language of education already exists at the college and university levels. With this decision, we must add the elementary and secondary school levels. While the English school should be reserved to the members of Quebec’s Anglophone minority, the Anglophone system is becoming increasingly an immense immersion system for Francophone and Allophone pupils. The Solski and Nguyen judgments open the door to the English public school for the better-off.”
Prof. Braën suggested that an appropriate response to the latest judgment might be to make the Charter of the French Language applicable to private unsubsidized schools. But whatever the government’s decision, he said, “it will also be challenged in the courts.”
The Supreme Court decision will reinforce the view of many Québécois that the definitive defence of their language, culture and national identity lies in breaking from the federal regime and establishing an independent state. That is the spirit, if not the explicit message, of the strong statement in opposition to the Supreme Court ruling issued by Amir Khadir, a member of the National Assembly and co-chair of Québec solidaire, the new left-wing party in Quebec. It can be read, in French on the Québec solidaire website, and in my English translation, below. The fight for Quebec independence will be the main issue of debate at the next congress of Québec solidaire, to be held November 20-22 in the Montréal suburb of Laval.
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Statement by Québec solidaire leader Amir Khadir, denouncing Court ruling on French language
(October 28, 2009) At a time when French is reported to be the language now of fewer than 80 percent of the people of Quebec, at a time when we are struggling to ensure that French remains the major language in Montréal, especially in the work environment, finance, or the technical and scientific industries, the Supreme Court of Canada – in a deplorably blind disregard for context – has declared unconstitutional the sections of Law 101, the Charter of the French Language, that prohibit parents from resorting to unsubsidized English-language private schools to enable their children to access the subsidized English public school system.
On October 22, the co-chair of my party, Françoise David, expressed our indignation at this decision. Québec solidaire is outraged by this decision, which legalizes a dubious practice and creates an additional breach in legislation whose sole purpose is to protect the French language in Quebec.
We are outraged to see that the Court has ruled in favour of those who, like Brent Tyler [the lawyer for the applicants], have systematically fought Law 101. The members of our nation, whether their mother tongue is French, English or otherwise, are trying to create better conditions for living together, in harmony and political equilibrium. But a privileged minority, represented by Mr. Tyler, is manipulating some Allophones and our laws in opposition to Law 101, a necessary bastion against the cultural imperialism exercised not by the English language itself but by a domineering vision of Anglo-Saxon culture that seeks to impose itself both in Quebec and throughout the world.
That reductionist and domineering vision is certainly not held by the contemporary creators of literature and culture that is expressed in English. Creators, in whatever language, participate in the construction of a civilization that encompasses and is inspired by all cultures, their specificity and their originality.
Fortunately, that vision is not shared either by the majority of the Anglophone community of Quebec, or among the Allophones. The Anglophones and Allophones of Quebec do not seek to weaken French in Quebec. They do not try to violate the spirit of Law 101. I am myself an Allophone immigrant and I invite all of those like me, all of us Québécois men and women, to join with the members of the National Assembly in defending the continued existence of the French language in Quebec and in defending Law 101.
The struggle of the Québécois to protect the French language in Quebec is the struggle of all those who believe that another, non-domineering vision of the world, is possible – that we are not condemned by fate to assimilate into the dominant Anglo-Saxon culture propagated by the imperial economic power the United States and their allies wield in order to transform all cultures into a single market open to the hegemony of culture conceived as a commodity, subject only to the rules of the market.
The fight for the protection and promotion of the French language in Quebec is the common struggle of humanity to preserve the cultural diversity that attends the sovereign power of nations to protect and promote their specificity, their originality, their space of freedom respectful of other nations, in a relationship of cooperation among equals and not submission to a single culture that seeks to overcome our cultures through the imposed uniformity of a single language, which for historical reasons happens to be the English language.
The Supreme Court has again proved to us that it always leans in the same direction. Its decision legitimizing the trampling of the spirit of Law 101 by overruling Law 104, as the Court has just done, proves that the institutions of the federal power have been moulded by a vision of history that denies, with regrettable consistency, the inalienable rights of the Quebec people, including their right to political, linguistic, cultural and legislative self-determination.
The French-language public school is an essential instrument in spreading the influence of our culture. It is our duty to protect it. Since the amendments to Law 101 invalidated by the Supreme Court were adopted unanimously by the National Assembly in 2002, Québec solidaire urges the government of Quebec to find immediately the legislative or juridical means to seal this open breach. The primacy of French in Quebec is not negotiable, whether the Supreme Court likes it or not.
A slightly different version of this article was published in Richard Fidler’s blog, Life on the Left.