High court strikes down Bill 104 - Macleans.ca
 

High court strikes down Bill 104

Quebec law closing loophole on English schooling declared “overly drastic,” but Supreme Court decision recognizes need to protect French language


 

This is not the unequivocal decision opponents of Bill 104 had hoped for. Far from sweeping aside the rationale for the law—which sought to close a loophole allowing greater access to English-language schooling—the Supreme Court of Canada has merely declared the legislation an “excessive” response to the problem. But the decision, written by Justice Louis LeBel, explicitly recognizes “the problem” as the Quebec government sees it, namely, the potential proliferation of privately funded English schools that would erode the primacy of French in the province. The Quebec National Assembly now has a year to amend its law before the SCC decision takes effect, which reduces the likelihood the Charest government will invoke the notwithstanding clause of the Constitution to protect Bill 104.

The Gazette


 
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High court strikes down Bill 104

  1. Since when is it worth shutting down a school in order to protect a language?
    It's a language. A means of communication. Who cares which one people use??

    Perhaps we should pay more attention to what schools teach rather than which language they choose to teach it in.

  2. Who cares which one people use??

    I will have to presume that you do not live in Quebec, but now it appears you may not actually live in Canada. Look around, G. Gazillions care which language people use around here. They're called Canadians.

  3. It was a rhetorical question M. It actually has impinged on my consciousness that there are people who care which language everyone uses. I just think they're being irrational, is all.

  4. I suspect that the time given to rewrite the law to conform to the Charter has absolutely no bearing on whether the government will use the notwithstanding clause.

  5. I tend to agree, but it's a hard one for me, because I realize I have zero experience in being a person whose language is disappearing. When I think about how I might feel if that was the case, I can see being quite upset about it.

  6. Sure, just like I might feel sad to see a certain style of clothes disappearing. That doesn't make it rational for me to start shutting down schools that won't help preserve my sentimental attachments.

  7. "But the decision, written by Justice Louis LeBel, explicitly recognizes “the problem” as the Quebec government sees it, namely, the potential proliferation of privately funded English schools that would erode the primacy of French in the province."

    The Supreme Court is helping the Province of Quebec protect Quebecois from their freedom of choice. I thought the SCOC was supposed to protect our freedom of choice from government.

  8. They force the ethnic minorities to learn French, to assimilate tot heir culture. Yet these people are not accepted as true Québécois. They'd rather hire French people from France than the ethnic minorities. It is common to see ethnic minorities even those who speak fluently French to move out of the province because there is discrimination against them in the labour market. I am a child of loi 101 and fluent in both French and English with a university degree, yet my friends and I all have a hard time finding decent work in Quebec while we see these French foreigners getting ahead of the pack in marketing positions, managerial positions. Nous sommes des citoyens de seconde class dans notre propre pays!

  9. Okay, and it's completely insensitive responses like that which make me lean more toward the French side of the debate. Comparing a preference for a style of clothing to your primary language? Seriously? That's some deep thought you put into this matter, that's for sure.

    You've just shown you have absolutely no appreciation for the sense of upheaval that such a thing might cause in your life, and is causing in theirs. How would you feel if all of your churches were disappearing? Even that doesn't compare because a church is a voluntary association, and it's one you can get along without. You can't get along without your language.

  10. Do you have a rational argument? Accusations of insensitivity and appeals to a "sense of upheaval" aren't that.

    I'd feel sad if all my churches were disappearing. That does not give me a good reason to try to close down non-religious schools. You can indeed get along without your native language…millions of people do so every day. And in any case it's not as though someone is advocating the complete and instantaneous eradication of French. If it becomes extinct that will be a process over many decades through lack of use. No one will be left unable to communicate.

  11. I notice a lot of my anglophone friends seem happy and excited today to learn about the Supreme Court's ruling. As someone who's from Quebec I am much more trepidations about it. We have struck an uneasy linguistic peace in Quebec in recent years – no not everyone is happy with the current situation, but it's at least tolerable for the vast majority of people who actually live here – but this linguistic peace very fragile. I would hate to see this decision unsettle things.

    I have mixed feelings about it myself, since I do have a great deal of respect for individual rights, but linguistic communities and culture(s) are important as well. In fact they feel give meaning to the lives of individuals. Cultural diversity INCREASES human freedom.

  12. A language is a lot more than a "certain style of clothes" Gaunilon. There are certain ideas which can only be expressed in French or in the Québecois vernacular. You may be able to approximate the idea through translations but you lose subtlety of meaning. So when a language dies you lose more than a funny-sounding accent, you lose ideas, you lose ways of thinking about the world. You also lose the fundamental building block around which the larger culture is built: plays, novels, poetry, music, etc. The meaning of many of these cultural products is intimately tied up with the way the language sounds, with its rules of grammar, its quirks and oddities.

    Being human in a lot of ways is all about mastering a language. And each one is different. Yes languages change and some die off, but you might feel a little less casual about the situation if it was YOUR language that was threatened. I think English speakers have a particularly difficult time understanding what this means to Quebecers (or other people who are at risk of seeing their language decline in use) because English is possibly the least threatened language in the world at this time (for economic reasons).

  13. If you're claiming that was linguistic peace, then why is the government passing new laws all the time, restricting English more and more? The PQ was suggesting recently a whole new set of draconian laws. There is no end.

    And sorry, the phrase "Cultural diversity INCREASES human freedom" makes absolutely no sense. Freedom means that you do what you want, diversity has nothing to do with freedom. Not only that, if the population as a whole decides to migrate to a single language, then that is freedom, but that is hardly what I'd call diversity.

    There is nothing good nor bad about diversity, and in fact excessive diversity can lead to conflict – consider those people who think that an adequate punishment for theft is chopping off peoples' hands, and people who think women should not drive or leave the house without a male escort. That's diversity for you, but it's certainly not freedom.

  14. It's not disappearing, French will not suddenly vanish from the earth. It's not like people who speak French will forget how to do it. It's the simple matter that what today's French people decide may not be the same what the future generations decide, but today's generation wants to make decisions for future generations. Hence, the need to enact new laws that restrict peoples' choices. It's absurd and an affront to human freedom and dignity.

  15. Let's say for the sake of argument that French isn't my native language, as you assume with zero justification.

    Then, you ask, wouldn't I feel differently if it was MY language that is threatened. Answer: yes, I'd feel bad.
    And where does that get us? Should my feelings (or anyone else's) determine public policy? Shouldn't public policy be decided based on reason, not sentiment?

    Of course, if you do want to promulgate law based on feelings of attachment, then what about the feelings of the kids in the schools that were going to be closed? Why are your feelings for your language more important than their feelings for their school, their friends, and indeed their own language?

    Look, if there's some compelling reason why the French language needs to be preserved even at the cost of closing schools, then fine: present it. Arguments based on sentimentality simply don't cut it, and this refrain of "oh you'd agree with us if you were French" is really absurd.

  16. Cultural diversity is good, but it doesn't increase human freedom when it's enforced by the law even to the point of closing schools. That's a bit like saying "we're going to promote intellectual diversity by banning the books that most people buy in order to allow the less popular books to flourish."

  17. I agree, it is something that I've seen myself with the young generations of anglophones and allophones in Montreal. They are all bilingual, but many of them leave because they are shut out of the labour market.

    Not that anyone has any interest in this travesty.

  18. You would think… but our SCOC has shown a habit of straying from the law and making it up as they go along.

  19. Excuse me but are arguing in a vacuum? Out here in the west for the longest time it was against the law the teach in the language in O Canada was originally written in. Here in Manitoba the regulations go a long way to force that every one learns English. We have no choice in the matter. Also I may add that again here in Manitoba ALL the minorities were forced to learn English and still faced discrimination. Example The University of Manitoba from the 20's to the 50's put quotas on Jews, Mennonites, Ukrainians, etc.. so that proper British stock people would not have too much competition in getting their Law and Medical degrees.

    As for Ontario does anyone remember regulation 17? A law to stop French instruction in the public schools during WWI. The prevalence of the English Language outside of Quebec did not just happen. Laws were passed, regulations were (are) enforced constitutions were ignored and promises were broken.

  20. For me it isn't so much about the language as it is about Quebec parents inability to chose the language (and therefore schools) in which to educate their children. I might be wrong about this but other Canadians living in provinces other than Quebec have never faced such artificial restrictions. The supreme court (and the Quebec Superior courts) have struck a victory for basic rights of quebecer and leveled the playing field among all Canadians and should be commended! Today as a quebec parent i am excited about the ability to chose how to educate my children and am proud to be a Canadian living in the wonderful province of Quebec.

  21. Sorry to deflate your chest, but…

    The SCOC "set aside" its own verdict for a year, encouraging the Quebec govt to rewrite the law in order to achieve the same effect as currently legislated. Bye-bye, choice.

    And yet, it all has to do with PUBLIC FUNDING of schools, and the Quebec govt's choice to limit access to one, in the hopes of starving the public English schools to oblivion (and enforcing francisation of immigrants). Nothing prevents families from begging, borrowing or stealing in order to send their kids to private English school.

    The Charter of Rights and Freedoms has a peculiar genealogical approach to determining eligibility of language of instruction in Quebec. So Quebec works around those margins to delegitimize its anglophone community, by restricting choice for the majority of its own citizens and all newcomers.

    I hasten to add, it has every right to do so, since it pays for the education. I remain surprised that the Quebec voting population continues to support such a French-only isolationist policy for itself. But, they do.

  22. Quebec voting population continues to support such a French-only isolationist policy

    This is one of the cases of "tyranny of the majority"

  23. Hi everyone, I'd like to weigh in on this issue since I am one of the very few people who actually work in this field.

    Firstly, let me point out that there is an exception to the Canadian Charter under which there is no free choice in Quebec when it comes to the langage of instruction. Therefore, all students attending publicly funded English schools in Quebec must be declared eligible to English instruction under the Charter of the French language. However, if parents wish to have their kids attend non-subsidized English private schools, they may choose to pay for that service. That is the exception to the exception if you will.

    That is precisely the issue at hand here: Can one enroll their child in a private non-subsidized English school for a year or two and then claim a right which is valid for generations to come to be schooled in English in Quebec with public funds?

    The Supreme Court just says the means to block this practice were too harsh. But it certainely didn't say "Sure, we like the idea that people can buy their way around otherwise valid language laws."

    There you have it, I hope that made the debate a little bit clearer.

  24. Heard of this thing called voting? Our whole society is run on feelings.
    If that wasn't the case, we'd never see a negative advert.

  25. "If you're claiming that was linguistic peace, then why is the government passing new laws all the time, restricting English more and more? The PQ was suggesting recently a whole new set of draconian laws. There is no end."

    What are you talking about? What new laws? Bill 104 was the first new language law I can think of since Bill 178 back in 1988. And PQ hardliners can (and will) suggest whatever they want but they're not the government.

    ——————

    "And sorry, the phrase "Cultural diversity INCREASES human freedom" makes absolutely no sense. Freedom means that you do what you want, diversity has nothing to do with freedom. Not only that, if the population as a whole decides to migrate to a single language, then that is freedom, but that is hardly what I'd call diversity."

    It increases freedom in the sense that it creates options for people and new avenues to express themselves. I am thinking in particular about the new generation of "allophones" in Quebec who have grown up under the current language laws. Many of them now speak French AND English almost flawlessly (and in many cases speak other languages as well). These people now have many more opportunities in life that they would not have had if they hadn't been forced to learn French. By that measure they have greater freedom than unilingual people. And it's not just about economic opportunities too. They can appreciate and participate in Quebecois cultural life on a deeper level than people with no (or only marginal) French.

    ———————-

    "There is nothing good nor bad about diversity, and in fact excessive diversity can lead to conflict – consider those people who think that an adequate punishment for theft is chopping off peoples' hands, and people who think women should not drive or leave the house without a male escort. That's diversity for you, but it's certainly not freedom."

    I disagree. Diversity is a beautiful thing. It makes life more interesting. And I hardly think Quebec's language laws will produce "excessive diversity" my friend. Don't worry guys like you can continue to watch American TV shows and movies and safely insulate yourselves from "excessive diversity".

  26. "Let's say for the sake of argument that French isn't my native language, as you assume with zero justification."

    Yeah you know, I feel comfortable with that assumption and am going to stick with it.

    —————————-

    "Then, you ask, wouldn't I feel differently if it was MY language that is threatened. Answer: yes, I'd feel bad.
    And where does that get us? Should my feelings (or anyone else's) determine public policy? Shouldn't public policy be decided based on reason, not sentiment?

    Of course, if you do want to promulgate law based on feelings of attachment, then what about the feelings of the kids in the schools that were going to be closed? Why are your feelings for your language more important than their feelings for their school, their friends, and indeed their own language?

    Look, if there's some compelling reason why the French language needs to be preserved even at the cost of closing schools, then fine: present it. Arguments based on sentimentality simply don't cut it, and this refrain of "oh you'd agree with us if you were French" is really absurd."

    2 things:

    1. Your view that only "reason" should determine public policy seems narrowly utilitarian. Yes I suppose it would be more economically efficient if everyone in the world only spoke English (or perhaps Mandarin), but there is more to life than economic efficiency.

    2. You also assume that there are no good "practical" reasons to maintain the French language and cultural diversity in Canada. In fact our bilingualism allows us to create links with other French-speaking countries and communities around the world and lots of economic benefits stem to Canada from being a bilingual country. You'll notice, for instance, that it is Jean Charest who has assumed the leadership position in trying to forge a Canada -EU freed trade deal (the federal government hopped on later). Do you think it's just a coincidence that it was the Premier of Quebec who led the way on this?

  27. "It's absurd and an affront to human freedom and dignity. "

    Oh come on. This kind of overheated rhetoric makes it hard to take you seriously. Quebec is hardly Stalinist Russia or anything. The current language laws were passed through a democratic process (and could be amended if there was public support to do so). The courts have also ruled that they – aside from Bill 104 which is now in limbo – strike the right balance between individual rights and the group right to preserve culture. If people find them so intolerable there are 9 other Canadian provinces and 3 territories they can move to where they don't have to be burdened with learning French.

  28. You're equating "reason" with "pragmatism". That is not what I meant.

    Of course non-practical considerations need to be considered, such as the loss of culture/literature/knowledge that may ensue. Also I like your point about the practical benefits of preserving French. All of these points (the practical and the cultural) are rational arguments for maintaining French, and they make far more sense than your (and Thwim's) prior appeals to how sad it would make you feel if a language to which you are sentimentally attached dies out.

    However, even if I grant the benefits of French, is the downside of losing them sufficiently grave to justify closing schools? Schools are pretty beneficial too, after all, and even more important is the freedom of Canadians to choose where their children can go to school, what they will study, and in what language.

    Based on the fundamental importance of these freedoms to our society's existence, I would hesitate to trespass on them even if lives were at stake. In the case of a language there is no contest.

  29. The operative word was "should".

    Interestingly enough, you've hit on the exact source of the split between the Left and the Right.

  30. You really like to twist the meanings of words. And I'm sorry, the allophones in Quebec do not have many more opportunities in life because they've been bullied by the government. The fact that people are bilingual in Quebec has nothing to do with the school laws. Those that attend English school become bilingual just as much as those that attend french schools. People in rural areas forced into french schools are often unilingual (I've worked with many of them, so I know).

    Funny how you consider exposure to America, a group of 300 million people and possibly the most diverse population in the world, as an impediment to diversity. Hilarious. You are one of those close-minded types, I see.

    As for your denial of the reality of new laws:
    1960s: quiet revolution
    1969: bill 63
    1974: bill 22
    1977: bil 101
    1980: separation referendum
    1988: Sections 58 and 69 of Bill 101 struck down by supreme court, firebombings follow
    1988: bill 178
    1993: bill 86
    1993: united nations says bill 178 violates the International Covenant on Civil and Political Rights
    1995: separation referendum
    1997: bill 40 and the revival of language police
    1999: bill 86 struck down by the courts and reinstated on appeal
    1999: language police extend enforcement to internet
    2002: bill 104
    2006: street signs in my hometown changed to satisfy language police
    2007: bill 195
    2008: language police informs pub owners that too much English being spoken amongst staff
    2009: bill 104 struck down

    I fail to see the linguistic peace. And in fact, I guarantee, once the official opposition, the PQ, wins another election, there will be more language laws.

  31. Well my friend I saw allophones have more opportunities in life because they are required to attend French schools and learn French (they learn English at home and from mass media anyway) and you say they don't. I guess in the absence of any empirical evidence we'll just leave it there.

    I know what informs my judgment though. That's riding around on Montreal public buses and metro cars and hearing young immigrants effortlessly switch back and forth from French to English. I envy how bilingual they are and how many doors this will open for them in the future.

    All Bill 40 did was reintroduce the previously existing Commission de la langue française, a modest measure.

    Bill 195 wasn't passed (and was largely ridiculed by most Quebecers)

    Bill 104 we discussed.

    The other examples you cite are not laws.

    So basically no major legislation since 1988 (and Bill 178 was just a re-statement of Bill 101 taking into account the SCC's criticisms of the earlier law).

    This hardly fits your melodramatic description that "there is no end" to language legislation in Quebec. Actually it appears we had achieved a kind of equilibrium. I am hoping that the SCC striking down Bill 104 will not disrupt this.

  32. We will see bill 195 being passed with the next PQ government. And you are trivializing all of these measures.

    In one breath, you proclaim that this major major court event threatens language peace.

    In another, you claim all these previous bigger events are trivial.

    Make up your mind. Is it trivial or is it serious?

    There is new legislation popping up every few years. And for someone interested in linguistic peace, it's funny how you ignore things like referendums for separation and restrictions of freedom.

    Frankly, being bilingual does not open doors anything like knowing nuclear physics or flying airplanes. Knowing a second language is a skill that is useless almost anywhere in North and South America (unless it's Spanish or English), and in Europe it is trivial because everyone knows multiple languages, although the multiple languages are different everywhere so they still can't communicate anyway. French is spoken in a limited number of places in the world. Knowing two languages does not put bread on the table or a roof over your head. It allows you to order from the menu in a few foreign countries. And it allows you to talk to the unilingual Quebecers in the rural areas.

  33. Who's got the overheated rhetoric? The SCOC rules on a case and you claim that the peace is threatened.

    You don't have to be killing millions of people like Stalin to be creating affront to human freedom and dignity. There is no such thing as a group right. And your suggestion that people move out of the province to satisfy your whims is indeed an affront to freedom. People that have lived in Quebec for generations should not have to leave because people like you want to bully them around. They have just as much right to live in their home as anyone else. I'm not fond of the attitude that only the pur laine French Quebecois get to run the show, and everyone else can leave. Constitutional rights were created for a reason – so that the majority would not strip the rights from individuals in the minority.

  34. Another thing: we have 25 families who have decided to stand up for themselves and their children, and they have decided for themselves what is best for their own children.

    And you could not care less about this case, or about these numerous families who are adamantly against the law. You have no interest in what is best for the people affected by this law – it does not hurt other people if these families do what is best for their children.

    You're worried that Pauline Marois and Bernard Landry are upset because they can't push these families around. When you talk about individual rights, you are only giving it lip service. You really have no concern for the people directly affected by this law.

  35. You also assume that there are no good "practical" reasons to maintain the French language and cultural diversity in Canada

    I don't see how making people use something with the force of the law is a way of maintaining anything.

    Secondly, Canada would remain a bilingual country regardless of Bill 101 and 140, for centuries. Maybe the numbers of french speakers would decline, but that's only because Quebecers refuse to have enough of their own babies, and some Quebecers children really don't care to maintain French as their primary language, so they want to force people from other cultures to abandon their own language and adopt french, and they want to force future generations into a single language.

    ur bilingualism allows us to create links with other French-speaking countries

    Frankly, we have plenty of free trade agreements, including recently signed agreements with countries named Colombia and Panama where people speak neither English nor French. A Euro agreement would be a good thing, but the French language would have nothing to do with it, there are more English speaking people in Europe than French, and there are in fact a total of 3 Euro languages that are spoken more than French, with another two that are spoken more around the world. The biggest trade ties in the world are forged between two countries, Japan and the US, for which neither country speaks the language of the other. You seem to think that language has some sort of magical properties, that we'll can see unicorns and ride on rainbows if we know French.

    If the whole idea to learn another language is the prevalence and the ties that can be forged (and frankly, language is no impediment to forge economic ties, but for the sake of argument), then we should be learning Chinese, Hindu, Arabic, Spanish, Portuguese, Russian, Japanese, German, and Korean, all of which are spoken more widely than French.

  36. There's a big difference between forcing people to learn a language and forcing them to attend a school where every single subject is taught in that same language.

    Also, two wrongs don't make a right. I think you have a point that the same injustices have been perpetrated elsewhere in Canada in the past, and elsewhere in the world. But that doesn't justify them.

  37. it's sort of insane that the government can tell you you can't send your own child to school in the language of your choice … at first in quebec they tried to make it that this applied to everybody but then they came up with a ule that anglophones educated in canada can send their kids to school in english but not francophones and children of immigrants …so really you are punishing immigrants and francophones by forcing them into the french system that does not provide them adequate english skills in case they would like to some day work outside of this small corner representing 2% of north america …these rules do not apply to wealthy people who can send their chilren to private school

  38. wouldn't it make sense that english was the language of instruction in a british colony? i don't recall the british north america act delcaring canada to be a partnership between french and english ….you can read it if you want, it's online

  39. The point we were debating was whether there were constantly new language LAWS being introduced. I have pointed out that there is not. You are mixing together all kinds of things – referendums, court cases, street signs (!) – in support of your claim.

    The fact is that Bill 101 was the major legislation and not much has changed since then. Yes people on both sides still bicker but that will always be the case. Comes with democracy.

  40. Don't presume how I feel about those families, or what I care about.

    Individual rights are very important. So, however, is protecting a language and culture. The court suggested that the Quebec govt find a way to more carefully screen individual cases and separate which families have very compelling reasons to send their kids to an English school versus those who are just trying to get around the law.

    Seems to me that is the right track to pursue.

    The only other point I was making was that I hope it doesn't provoke a backlash that will end up infringing more on the rights of individuals and the interests of the English school system than would have happened otherwise.

    I'm not worried about Pauline and Bernard. I'm worried about the millions of soft nationalists who care more about the French language than a few families who are badly served by Bill 104.

  41. Please, please, please – stop referring to Bill 104. It is no longer a "Bill" ( a proposed law) but it is an Act (a Bill passed in a parliament or legislature and now a statutue law). I'm not a lawyer, but even I know the difference. The law in question is properly know as "An Act to amend the Charter of the French Language" and was introduced into the Quebec National Assembly in May 2002 and given royal assent on June 13 of that year. After that time, it was no longer a Bill but became an Act. Our Canadian legislatures deal with hundreds of "Bills" every year and just to refer to a bill by number in the media is very confusing as there could be dozens of Bill 104s over the years. If you have to talk about this law by it's number , then call it "Quebec Bill 104-2002. Thanks

  42. People that are born in Quebec should be able to go to an english school, they should be able of getting everything in quebec. immigrants should only go to 1 year of french and then be able to go to a english school because iimigrants should be able to grasp the french in 1 year. quebec should stop worriying about language cuz we all know in order to get a job we need french they should worry about swine flu

  43. It's sad that with all the problems we have in the world, in the country, and in this province that our government chooses to sink our resources into drawing a line in the sand between the french and the english. I have more important things to worry about than what language my kids school needs to be in. I want my children to learn both languages so that they are educated and not because I have a gun to my head from the Quebec governments "office de la ……".
    I would rather leave the province than feel forced into something thats wrong. The Quebec government isnt doing all of this to keep our culture and history alive they are doing it to have control over its people.