Blog of the International Journal of Constitutional Law

Canadian Language Wars (yet again)

Canada is arguably one of the world capitals when it comes to language rights jurisprudence. The fundamental disagreements concerning the preferential status of French in Quebec vis-à-vis Canada’s commitment to bilingualism have been a perennial bone of constitutional contention over the last 30 years.

The formal status of English and French, as well as minority language education rights in the two languages are protected by s. 133 of the Constitution Act, 1867, and by ss. 16-22 & s. 23 of the Charter of Rights and Freedoms, 1982. Since the emergence of a nationalist movement in Quebec in the 1960s, and even more so since the rise to power of the Parti Quebecois in the mid-1970s, the Quebec provincial government has made a continuous effort to promote French and establish its status as the primary, or even sole, language in Quebec. In 1984, the Supreme Court of Canada ruled that the education provisions of Quebec’s Bill 101 (requiring that teaching in Quebec be in French only) contradicted s. 23 of the Charter and should, therefore, be struck down. In Ford v. Quebec (1988), the Court ruled that the provisions of Quebec’s Bill 101 requiring that public signs and advertisements may only be in French violated the Charter’s freedom of expression guarantee. It also ruled that a blanket use of an override declaration by the Quebec government (Bill 178) was an improper and invalid application of the Charter’s “override clause” (section 33 of the Charter). At the same time, the Court has issued a series of rulings protecting the status of French and French education in predominantly anglophone settings, from Alberta to Manitoba, and from PEI to New Brunswick. But the language question in Quebec continues to linger.

In 2005, the Supreme Court of Canada revisited the tension between Quebec’s Bill 101 and the Charter’s section 23, when it ruled unanimously that in determining a child’s entitlement to minority language education (in this case, education in English in Quebec), section 23 must receive a broad interpretation consistent with the constitutional objective of protecting minority language communities. The requirement in Bill 101 that a “major part” of a child’s past educational experience be conducted in English in order to be entitled for further English education must involve a nuanced qualitative, not a strict quantitative, assessment.

On October 22, 2009, another landmark Supreme Court ruling on the matter was released. Under s. 23(2) of the Charter, citizens of Canada of whom any child is receiving or has received instruction in the language of the linguistic minority (in Quebec, that would be English) may have all their children receive primary and secondary school instruction in that language. Quebec’s Charter of the French Language establishes that, in principle, French is the common official language of instruction in elementary and secondary schools in Quebec, but allows for children with some history of schooling in English to receive instruction in English in a public or subsidized private school in Quebec. That provision created a loophole that essentially allowed parents whose children were not entitled to instruction in English to send one or more of their children to unsubsidized private “bridging schools” (écoles passerelles) in English for a year so that they would then be eligible to attend publicly funded English schools.

In 2002, two new paragraphs (AKA Bill 104) were added to Quebec’s Charter of the French Language in response to that loophole. It suggested periods of attendance in such “bridging schools” as qualifying children for public education in English should be disregarded. A group of Quebec parents, naturalized immigrants of Asian origins (i.e. neither francophone nor anglophone background) argued that Bill 104 violated their constitutional rights as it effectively closed the only way open to them to acquire public education in English.

Drawing on a typical “section 1” analysis (the Canadian version of what has been dubbed “proportionality”), the Supreme Court ruled unanimously that Bill 104 was “excessive” in its infringement upon parents and children’s minority language education rights. The court also held that the loophole affected few students and that it did not pose a threat to the vitality of the French language in the province. The Court thus granted the government of Quebec a year to amend the law in a way that would balance more adequately between the preferential status of French in Quebec and minority language education rights in that province.

Quite predictably, the ruling awakened some nationalist sentiments in Quebec. Some of it is no doubt authentic. But part of it politically driven. The current Premier, Jean Charest of the moderate Liberal Party is portrayed by the Parti Qubecois opposition as too soft on Quebec sovereignty issues. The opposition’s staged outrage is thus meant in no small part to capitalize on the Court’s anti-Quebec decision to denigrate Charest politically. The opposition leader, Pauline Marois, said Charest had a duty, as the head of the Quebec nation, to protect the French language despite the court decision. “The Supreme Court, a court named by another nation, has once again hacked away at a tool that is fundamental for the Quebec nation,” Marois said. “How does the premier intend to correct the situation?” Only time will tell. Or in French (my 4th language, mind you): Seul le temps nous le dira.



4 responses to “Canadian Language Wars (yet again)”

  1. David Law Avatar

    Is it just me, or is the Court getting a bit bolder in this area? Sometimes I think I should keep track of the shifting terrain of language politics in Quebec. But then you remind me that it doesn’t really change. Or in French, somewhere down the language menu: La plus ça change …

  2. Tom Ginsburg Avatar
    Tom Ginsburg

    David, what does that mean?

  3. David Law Avatar

    The more things change, the more they stay the same …

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