Sunday, November 8, 2009

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.

[1] Toronto, 2nd 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.

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