Québécois Denounce Supreme Court Attack on Language Rights

by Richard Fidler

The Court declared unconstitutional a law adopted unanimously by Quebec’s National Assembly in 2002 that closed a loophole in the Charter being used to circumvent the requirement that Quebec students attend French-language schools. In effect, the judgment restores free choice of language of elementary schooling for parents rich enough to send their kids for a few years to private schools not funded by the Quebec government before enrolling them in English public schools.

More than 30 years ago, Quebec passed laws making attendance at French schools mandatory for all Francophone and immigrant children enrolled in government-funded schools. The legislation was adopted in response to mounting concern over the fatal attraction of English in a province economically dominated by Anglophone capital and constitutionally lacking sovereignty in key areas of jurisdiction crucial to its definition as a Francophone nation within the Canadian state. Public education in French has long been seen as crucial to integrating immigrants into the province’s majority Francophone society.

The Court’s decision was a rude reminder to Québécois that the key legislation, the popular Charter of the French Language, adopted in 1977 as Bill 101, continues to be subject to attack by the federally-appointed judiciary using provisions of Trudeau’s 1982 Canadian Charter of Rights and Freedoms that were specifically aimed against the Quebec language Charter. In past decisions, the Supreme Court has overturned other provisions of the CFL that made French the sole language of Quebec courts and legislation, public advertising and corporate names, and that restricted English-language public schooling to children with a parent who had attended an English elementary school in Quebec.


Important progress under Law 101

The French-language Charter’s requirement that non-Francophone immigrants to Quebec, with few exceptions, send their children to French-language schools was widely accepted and within a few years a whole new generation of minority Anglophone and immigrant community youths were emerging from the public school system with fluency in French, the majority language. These are commonly referred to as the “children of Bill 101.” It seemed that for the first time in many years Quebec was reversing the trend toward anglicization and the decline of its defining French-language culture.



In a 2005 judgment (Solski), the Supreme Court held that while Quebec was entitled to restrict access to English schools, the determination as to whether prior attendance at an unsubsidized private English school constituted the “major part” of a child’s education had to be determined not just numerically (as in the number of years of attendance) but qualitatively – that is, that each individual case was to be considered on its merits and that it sufficed if such education was “a significant part, though not necessarily the majority, of the child’s instruction.”

In last week’s judgment (Nguyen), the Court went further. It held that the Law 104 prohibition against taking a child’s “pathway” in an unsubsidized private school into account is “excessive.” It therefore invalidated the provision of the French-language Charter enacted unanimously in 2002 by the Quebec National Assembly.

Court’s analysis ‘superficial’ and insensitive

The Supreme Court ruling was widely denounced, including by all the major union centrals in Quebec. The Centrale des syndicats du Québec (CSQ) charged the Court with using “political and economic considerations” to dilute the “message that our language is the language of the common public culture and the language of integration in Quebec.” The Quebec Labour Federation (FTQ) protested: “We cannot leave it to the good judgment of administrators, however impartial, to analyze case by case and in which circumstances entire families could exempt themselves by a subterfuge from the provisions of the law.” By allowing non-Anglophones and future workers to choose English in a society that is majority Francophone, the FTQ said, the decision served to undermine the labour movement’s strenuous efforts for many years to establish French as the language of work.

“Rarely have we seen a unanimous judgment of the Supreme Court arouse such reprobation in Quebec,” wrote Michel David, a political columnist in the Montréal daily Le Devoir. Drawing attention to editorial support for the judgment in the rest of Canada, he concluded that “In English Canada they simply refuse to recognize that French is threatened in Quebec. To claim the contrary necessarily denotes bad faith and an attempt to promote Quebec sovereignty.” In the federal Parliament, the Bloc Québécois was the only party to denounce the judgment, although the NDP – in an effort to distance itself from the Court’s judgment – presented a motion affirming that Quebec has “the right to ensure that immigrants arriving in Quebec learn French first and foremost.”


“In Quebec, it is the Francophones and the Allophones [those with neither French nor English as their mother tongue], and not the Anglophone minority, who are fighting for access to the English school. Even today, a large proportion, if not a majority of the immigration settled in Quebec, chooses English as its language of use….




The Supreme Court decision will reinforce the view of many Québécois that the definitive defence of their language, culture and national identity lies in breaking from the federal regime and establishing an independent state. That is the spirit, if not the explicit message, of the strong statement in opposition to the Supreme Court ruling issued by Amir Khadir, a member of the National Assembly and co-chair of Québec solidaire, the new left-wing party in Quebec. It can be read, in French on the Québec solidaire website, and in my English translation, below. The fight for Quebec independence will be the main issue of debate at the next congress of Québec solidaire, to be held November 20-22 in the Montréal suburb of Laval.

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Statement by Québec solidaire leader Amir Khadir, denouncing Court ruling on French language

(October 28, 2009) At a time when French is reported to be the language now of fewer than 80 percent of the people of Quebec, at a time when we are struggling to ensure that French remains the major language in Montréal, especially in the work environment, finance, or the technical and scientific industries, the Supreme Court of Canada – in a deplorably blind disregard for context – has declared unconstitutional the sections of Law 101, the Charter of the French Language, that prohibit parents from resorting to unsubsidized English-language private schools to enable their children to access the subsidized English public school system.









A slightly different version of this article was published in Richard Fidler’s blog, Life on the Left.

2 thoughts on “Québécois Denounce Supreme Court Attack on Language Rights

  1. Hans Modlich

    Nota Bene: This time the NDP came down on the correct side of this issue [ if I'm not mistaken Richard?]

    Thomas Mulcher effectively let the attack on the court’s decision and got a lot of coverage in the Quebecois media. More comment on this I cannot make sitting here in Toronto, but I would encourage RF to do so.

  2. Marc Bonhomme

    Comments on Québec solidaire’s statement :

    1. When there is a consensus in Québec’s society, Québec solidaire always jump in the bandwagon. This time the consensus was not only within the union and popular movement but also includes all parties in the Assemblée nationale.
    2. Québec solidaire likes to use moral language (indignation, outrage, our duty, urge) but is weak in proposing alternatives. What the government should do ? We don’t know. It acts as a pressure group, not a left political party. Free choice for Cégep (colleges) is the object of a political debate hence Québec solidaire ignores the issue, that is it supports the statu quo.
    3. Québec solidaire assumes that collectives, whatever they are (Allophones, Anglophones, the members of our nation, United States and their allies, Humanity), speaks with one voice, that is reach a consensus. Classes and class struggles do not exist for them.
    4. Québec solidaire assumes that an elite (the contemporary creators of literature and culture, creators) speaks for the group. Others are evil persons (manipulators). Hence bad ideas exist with no social base : “the cultural imperialism exercised not by the English language itself but by a domineering vision of Anglo-Saxon culture that seeks to impose itself both in Quebec and throughout the world.”

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