Once again, part of Quebec's language law has been found to be unconstitutional and a violation of the Charter rights of Canadians. The legislation struck down unanimously yesterday by the Supreme Court of Canada had been passed unanimously in 2002 with the support of both the Parti Québécois government and Jean Charest's Liberal opposition, to further restrict access to publicly supported English schools.
At issue was Section 23(2) of the Canadian Charter of Rights and Freedoms, which reads: “Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.”
The purpose was to ensure continuity in the language of schooling, so a child would not be forced to transfer from one language to the other. It was also to ensure that, within the same family, children were not separated by attending schools in different languages.
But the wording of the Charter allowed a practice that grew up in Quebec of sending a child to an unsubsidized English school, permitted under Quebec law even to those ineligible for subsidized English school because neither parent had been educated in English in Canada. Sometimes, after taking Grade 1 in such a school, the child was transferred to a subsidized English school, claiming the right under the Charter.
In 1993, Quebec passed an amendment to the Charter of the French Language allowing otherwise ineligible children to attend subsidized English schools only if “the major part” of their instruction had been in English. This the court repudiated in the 2005 Solski judgment, where it found the criterion too indiscriminate. The court insisted that a “qualitative” as well as a “quantitative” evaluation must be made of a child's entire “educational pathway” to determine the child's eligibility.
In 2002, the National Assembly went further. Henceforth, no period of study in an unsubsidized English school would give a child or its siblings access to a subsidized English school. Moreover, otherwise ineligible children who, for special reasons, were given a minister's permit to attend a subsidized English school (for example, because of learning difficulties or a temporary stay in Quebec) could no longer extend the right to their siblings.
Yesterday, the court found both provisions unconstitutional. It ordered that the brother of a girl who had received a special ministerial permission also be admitted to a subsidized English school. It also suspended for a year the practical effect of its declaration of unconstitutionality to give Quebec time to rewrite a law that, without a blanket disqualification of unsubsidized English schooling, would conform with the quantitative and qualitative evaluations ordered by the court in 2005.
There are two problems with yesterday's decision. It opens the door to numerous time-consuming and costly evaluations, case by case. Without clearly defined objective criteria, the Quebec government will invoke subjective judgments to refuse admission. It has amply proved its bad faith, outrageously throwing up every obstacle, every delay, to restrict the number of children in English schools.
The second problem is deeper. This judgment, as did Solski, invoked the court's 1988 Ford decision, according to which the language law could restrict freedoms in Quebec because “it was a response to a pressing and substantial concern – the survival of the French language.” The very existence of French was supposedly threatened.
The court based its judgment on evidence from before the Quiet Revolution. Yesterday, it invoked a 2008 government document which again claims that the durability of French in Quebec is not assured.
But what are the facts? Objectively, a language is threatened when younger generations abandon it. But according to the 2006 census, between 1996 and 2006 the number of Quebeckers whose mother tongue is French increased by 175,410 (from 5,741,430 to 5,916,840). The number who gave French as the language spoken most often in the home increased even more: by 255,075 (from 5,830,080 to 6,085,155). This shows French thriving, not disappearing. Moreover, other figures from the census show that a majority of those whose mother tongue is neither French nor English now speak French more often than English in their homes.
But it's an article of faith in Quebec that the language is threatened. That justifies a regime of repressions. What's needed now is for the court to reconsider the Ford decision and its implications in light of the facts, not opinions. Freedoms might be restored when the mythical state of emergency is past.
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William Johnson is an author and a former president of Alliance Quebec.