Behind the Supreme Court ruling on Quebec’s language law: Canada clause vs. Quebec clause

In a previous post, I reported on Quebec reaction to the recent Supreme Court of Canada ruling that overturned yet another provision of Quebec’s Charter of the French Language. Here is an extract from an article by Pierre Dubuc, editor of L’aut’journal, that relates some of the political background to this judgment of the Court. My translation and notes. — Richard Fidler

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Law 101, in its original version, contained a provision — called the Quebec clause — that allowed parents who had attended an English school to retain this privilege and transmit it to their descendants. However, it required that all those who chose to come and settle in Quebec, wherever they came from, including the rest of Canada, to enrol their children in the French school.

Through the obligation to attend a French school, Law 101 sought to counter the decline of the French-speaking population in Quebec as a result of the fall in the birth rate and the massive attendance by immigrants in English schools. In 1972, it is worth recalling, 90 percent of the immigrants of Italian origin were being educated in English on the territory of the Montréal school board.

If Law 101 had been applied in its original form, the English school population would have steadily declined. But that’s without reckoning on the intervention of the federal government.

Trudeau strikes back

From the time he entered political life in 1967, Pierre Elliott Trudeau had sought to impose bilingualism on a Canada-wide scale. But he was stumbling on the distribution of power in Canada, which makes education a provincial jurisdiction.

In his book The Charter of Rights and the Legalization of Politics in Canada,[1] law professor Michael Mandel shows how Trudeau conceived a way to use the growing popularity of the proposed Charter of Rights to conceal his project of entrenching the language rights of minorities.

Trudeau took advantage of the defeat of the sovereigntists in the 1980 referendum to implement his “solemn commitment” to “renew the Constitution”. He got a decision from the Supreme Court that there was no need for unanimous consent of the provinces to repatriate the Constitution to Canada. This made possible the exclusion of Quebec at the first ministers’ conference on November 2, 1981, better known as “the night of the long knives” and, in 1982, the repatriation of the Constitution.[2]

Trudeau was able to count on a compliant Supreme Court he had himself remodelled with the appointment in March 1970 of Bora Laskin, a partisan of judicial activism like that in the United States. Four months later,[3] Trudeau appointed Laskin to head the Court, passing over five judges with more seniority.

Although rights charters usually set down broad general principles affecting rights and freedoms, section 23 of the Charter has the detail of a tax law. Under this section, Quebec is required to recognize the eligibility for publicly funded instruction in English of all children whose father, mother, brother or sister have themselves received or are receiving such instruction, or who are receiving it themselves, anywhere in Canada. This is what is called the “Canada clause”.

In their decision overruling Law 104, the judges acknowledge this feature of section 23: “This provision is unlike those generally found in charters and declarations of fundamental rights.” And they rely on this section, stating: “In the protection afforded by the Canadian Charter, no distinction is drawn as regards the type of instruction received by the child, as to whether the educational institution is public or private, or regarding the origin of the authorization pursuant to which instruction is provided in a given language.”

Note that the Charter provided that governments could derogate from the broad principles of freedom of “conscience”, “association” or “fundamental justice” by invoking section 33, the “notwithstanding clause” — but not from the language rights in section 23!

The dismantling of Law 101

Once the Charter was proclaimed in force, the Anglophone school boards of Quebec immediately took legal action to overturn the provisions of Law 101. The case was heard by [Chief] Justice Deschênes of the Superior Court of Quebec, who ruled in favour of the applicants.

When, during the trial, Quebec cited the collective right of individuals speaking a minority language, Judge Deschênes accused the province of “a totalitarian conception of society”. It was, he charged, using “the Kolkhose steamroller” and wanted to “see merit in the collective result even if some individuals are left by the wayside in the process”. Under the Charter, he said, “Human beings are, to us, of paramount importance and nothing should be allowed to diminish the respect due to them.”

In 1972 Pierre Trudeau had appointed Jules Deschênes directly from an illustrious legal firm to the Court of Appeal. He quickly proved himself in two major political cases: Charbonneau (1973), where the court upheld the heavy prison terms handed down against the trade-union leaders of the Common Front; and Rose (1971), following the death of Pierre Laporte [in the October crisis], where Judge Deschênes’ vote was decisive in upholding the conviction.

In return for his valuable services, Trudeau installed Deschênes to the highly strategic position of Chief Justice of the Superior Court of Quebec, where he was to assign himself all the cases involving important language provisions.

Right of disallowance

The Supreme Court’s recent judgment invalidating Law 104 is consistent with a line of earlier judgments whittling down the right to self-determination of the Québécois nation. Originally, under the British North America Act, the federal government had a right of disallowance — the power to overturn — provincial laws. This right was unpopular and hard to justify, and it fell into disuse before being reborn in the new and “impartial” clothing of the Charter of Rights and Freedoms and the power of the judges, which allows, once again, the will of one nation to prevail over the will of another.

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[1] Toronto, 2^nd edition 1994, Thompson Educational Publishing, Inc.

[2] On November 2, 1981, following a meeting overnight in the absence of Quebec premier René Lévesque, the premiers from the English Canadian provinces struck a deal with Trudeau that would give Canada sole control of its constitution but with an amending formula that allowed them to override Quebec’s views on some matters of importance to that province, and a Charter of Rights and Freedoms with a language-rights clause, section 23, that was specifically designed to defeat key provisions of Quebec’s Charter of the French Language (Law 101).

[3] Actually, four years later.

What the debate on the ‘veil’ conceals

by Benoit Renaud

In the following article Benoit Renaud, a member of the International Socialism collective in Québec solidaire, argues that calls to prohibit public employees from wearing the hijab, by far the most common item of clothing worn by devout Muslim women, serve the interests of right-wing ideologists, supporters of war and imperialism and opponents of non-white immigration. He makes an important point: that secularization of the state and social services — an important conquest in recent decades by Québécois fighting church control of education and official sexism in laws and public institutions — should not be confused with calls for state regulation of individual religious belief, let alone dress codes. Renaud is replying, implicitly, to Islamophobic articles in journals such as L’aut’journal, published by “left” PQ supporters, which has been campaigning against the hijab.

This article has been translated from the November 3 issue of Presse-toi-à-gauche, an online publication in the periphery of Québec solidaire which has itself carried some Islamophobic articles, although QS leaders have spoken out against such views. [My translation, introduction and note] -- Richard Fidler

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The debate on accommodation, religious symbols and secularism has been recurring periodically since the period of collective psychodrama in 2007 that led to the election of 41 ADQ members to the National Assembly and the appointment of the Bouchard-Tremblay Commission.[1] This debate is a challenge for the left, given the complexity of the issues it raises.

For example, we are presented with a choice worthy of a Solomon: to discriminate against the members of minority communities or endorse patriarchal customs. In effect, to decide between sexism and racism. The only way to avoid falling into both these traps is to grasp the overall dynamics of oppression in all its forms, in the context of globalized capitalism and therefore imperialism. The debate must be situated in its context if we are to understand clearly the real meaning of the proposals being advanced for action.

First, it is necessary to correct a common — yet evident — error in vocabulary. In French, clothing that covers the hair and/or the neck is called a foulard (headscarf). A voile (veil) is clothing that conceals the face. There is a qualitative difference. Some writers, insistently confusing these quite different accessories, display a lack of rigour, to say the least. In what follows, I will refer to the Islamic headscarf or hijab. Genuine veils are a quite different question, since they impede communication and actually “hide” the women who wear them.

Imperialism: the number one danger

It is no accident that this debate arose in Quebec during the 22^nd Regiment’s initial six-month tour of duty in Afghanistan. The countries of the West have been immersed in a wave of Islamophobia since the Muslim Middle East became the principal target of the imperialist and neocolonial offensives, and especially since the attacks of September 11, 2001. Western governments justify such politics as the boycott of the Palestinian government in Gaza duly elected in 2006, the occupation that is dragging on in Iraq, the military escalation and endemic corruption in Afghanistan, and the constant threats against Iran, by fueling the ideology of Orientalism, which presents the peoples of this region of the world as barbarians, backward, allergic to democracy or modernity.

However, it was the previous interventions by imperialism, in alliance with the local reactionary forces, that crushed the left and paved the way for ultra-conservatism with a religious overlay. Without British support, there would have been no Saudi monarchy; without U.S. interference, no dictatorship of the Shah; without Russian-U.S. rivalry in Central Asia, no civil war in Afghanistan and no Taliban, etc. So it is imperialism itself that is the main danger to the security of the world’s peoples, and not some supposed grand fundamentalist conspiracy.

The sexism of others...

One is surprised to see some right-wing and centre-right politicians discover their affinities with feminism — provided it is to fight the sexism of “the others”, those foreigners who despise “their women”. The wearing of headscarves is portrayed as a threat to the fundamental values of the “nation”. But nothing is done to fight the hyper-sexualization of teen-agers, sexist advertising, cuts in the budgets of groups assisting women victims of violence, etc. In Quebec, over the last 20 years, some 500 women and children have been killed by a husband or former spouse or a violent father. Is Christianity held responsible? Do we prohibit every sexist thing in the culture of the majority?

We must be clear. This right-thinking discourse aimed at the sexism of others is in perfect harmony with the most common anti-feminist idea: that the liberation of women, here in the West, is a fait accompli. The Quebec Federation of Women (FFQ), the coalition of virtually all women’s groups and all tendencies within feminism, incurred the wrath of all the right-thinking people when it dared to say no both to the obligation to wear the Islamic hijab and to its prohibition. For the FFQ, the issue was one of respecting the women who wear the scarf and accompanying them in their efforts at integration and emancipation, instead of excluding them and stigmatizing them. No one denies that Islam is a sexist and patriarchal religion. But it is not by stigmatizing and marginalizing Muslim women who wear the hijab that we are going to help them achieve their liberation.

Islamophobia, a form of “acceptable” xenophobia

The other contextual element that eludes most of the thinking on the matter is that of immigration in a period of crisis of the neoliberal economy. In Europe, the far-right parties have draped their anti-immigrant discourse in an especially virulent version of Islamophobia. The National Front in France need no longer campaign against “the Arabs”, it can attack the Muslims, with the moral cover of the traditional parties, under the umbrella of secularism and the values of the Republic. Closer to home, the Parti indépendantiste has found a way to affirm, in the very same section of its program, its support for secularism and for the preservation of our Christian heritage! The caricature of peoples originally from Africa or Asia, sometimes encouraged by intellectuals who have emigrated from these continents and are now crusading against fundamentalists, creates a climate that is used to justify all the petty discriminations in hiring, access to housing, etc. If the government sets the example by prohibiting the wearing of the hijab among the half a million employees in the public and parapublic sectors, how, with any credibility, can it conduct an effort directed against the ordinary racism that victimizes the members of these communities?

Women who wear the Islamic hijab should have the same right to work as anyone else. As a member of a trade union in the Quebec public sector and a co-worker of an immigrant woman who wears a hijab, I expect my union to defend her right to work and to dress as she wishes. The state should not decide the dress code for 450,000 workers based on ideological and arbitrary criteria. If we accept the prohibition of the hijab, out of concern for secularism, what other restrictions are we going to face later on? Prohibition of Che Guevara t-shirts? Prohibit a teacher from running as a candidate in elections?

To give in to the fear campaign against Muslims by prohibiting the wearing of any religious insignia in the public sector would undermine our efforts to mobilize against the war and imperialism, against xenophobia and discrimination against immigrants of various origins, and our ability to recognize the very real sexism that still exists in “our own” society, as well as our fight for the unity of the labour movement in opposition to an employer who is preparing to make us pay the cost of the crisis.

Benoit Renaud

Gatineau, Quebec

October 27, 2009

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[1] Popular support for a small right-wing party, the Action Démocratique du Québec, suddenly ballooned when it campaigned against attempts to accommodate the religious beliefs of members of religious minorities. Although it elected 41 members in the 2007 general election, the ADQ vote dropped precipitously in the 2008 election; it now has only four MLAs. In the interim, a government-appointed commission headed by academics Gérard Bouchard and Charles Taylor held extensive hearings throughout Quebec and issued a report supporting “reasonable” accommodation in the interests of “interculturalism” with a view to integrating immigrant and other minorities into Quebec society.