Language 101: There's no easy formula

Harold F. Schiffman haroldfs at
Sun Apr 3 19:01:59 UTC 2005

Forwarded from

Language 101: There's no easy formula

Yesterday's Supreme Court decision is a victory for French and a defeat
for clarity, says law professor SEBASTIEN GRAMMOND

Friday, April 1, 2005

The requirement that Quebec's francophones and immigrants send their
children to French-language schools has been a cornerstone of the
province's language policy since Bill 101 was passed in 1977. Although
aspects of the bill have been challenged under the Charter of Rights and
Freedoms' protections of individual rights, no one had dared to attack the
fundamentals until recently. Yesterday, in ruling against a group of
francophone parents who sought to educate their children in English, the
Supreme Court of Canada upheld the law in principle, but it demanded more
flexible -- and problematic -- rules governing the law's application.

In its decision, the court had to decide whether insisting that
instruction must be in French was discriminatory because it applied only
to francophones and immigrants but not to anglophones. The court rejected
a mechanistic application of equality rights, and ruled that it was
legitimate to grant special rights to members of a linguistic minority so
they could preserve their language. In fact, Quebec finds itself in a
double-minority situation: Francophones are a minority in Canada (and in
North America), while anglophones are a minority in the province but not
in the country as a whole. To reconcile the interests of these two
minorities, individuals must be treated differently on the basis of the
language group to which they belong. Such a distinction is not
discriminatory; rather, it lets each group achieve its goals. Francophones
can use the democratic process to impose obligations to protect French.
Anglophones, for their part, are guaranteed the right to be educated in
their language if they so wish.

The court confirmed that the drafters of the Constitution knowingly ruled
out freedom of choice with respect to matters of language of instruction,
and affirmed that Quebec can mandate that instruction be in French
(anglophones excepted). The court says individual rights do not set aside
this essential compromise because both sets of rights are guaranteed by
the same document and have the same legal force. From this perspective,
yesterday's decision deserves applause: It takes Quebec's distinct
character within Canada into account and shows a subtle understanding of
the linguistic balances.

But the decision has not ended the debate. The francophone parents who
unsuccessfully brought the case can still apply to a United Nations
committee, which will rule whether Bill 101 complies with international
human-rights treaties. This committee's recommendations carry substantial
weight; in 1993, it persuaded Quebec to abandon demands for unilingual
signs. It's the second part of yesterday's decision, however, that will
give politicians the biggest headaches. The court looked at measures that
Quebec has taken to prevent francophone parents or immigrants from trying
to circumvent Bill 101 and send their children to English schools.

The parents' subterfuges took advantage of the Charter's Section 23(2),
which guarantees that a child who has received or is receiving instruction
in English may continue to receive his or her primary and secondary school
instruction in that language. Some parents claimed that a short period at
an English-language school was sufficient to trigger this provision's
application, and sent their children to English schools outside Bill 101's
jurisdiction (such as unsubsidized private schools in Quebec or schools in
neighbouring provinces). Other parents claimed the exemption for temporary
residents of Quebec. It was to counter these ruses that Quebec amended
Bill 101 in 1993. The right to continuity of instruction in English would
be recognized only if instruction in English constituted the major part of
the instruction the child had already received. That way, no child could
be exempted by moving to an English school for a few months if the child
had already been taught in French for two years.

The court case challenged this "major part" formula. And in a highly
nuanced decision, the Supreme Court sided with the parents -- in part. The
court said that, while Quebec has the power to clarify the Charter's
Section 23 provisions, it could not adopt a purely mathematical test. In
future, the concept of "major part" must be understood in a qualitative,
not quantitative, sense, and each child's situation examined case by case.
What is more, the court wouldn't express an opinion on the other measures
taken by Quebec to staunch attempts to circumvent Bill 101 (such as its
refusal to take into account instruction given in unsubsidized private
English-language schools).

Although the court has clearly ruled out giving parents freedom of choice
over the language of instruction, it is difficult to predict the extent to
which yesterday's decision will allow francophones and immigrants to send
their children to English schools. What causes concern is the way the
decision appears to require that each child's situation be assessed on a
case-by-case basis. Past experience has showed that such an approach is
inadequate, and that objective rules at least had the merit of avoiding
large numbers of wrenching individual decisions.

Most people used to know clearly who had the right to be educated in
English. We can only hope now that the Quebec government, the bodies
responsible for enforcing the law and the courts will be able to combine
flexibility, clarity and predictability. Sbastien Grammond, a law
professor at the University of Ottawa, earned his doctor of philosophy at
Oxford with a thesis on membership in linguistic communities.

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