James Morton, National Post
Published: Monday, October 26, 2009
Language rights, children and education are some of the most emotional topics in Canada. The balancing of language rights and choice of language instruction have posed huge challenges from 19th-century Alberta to Quebec and Ontario today. Partly to ensure the continuity of language and cultural rights in both English and French, the Constitution provides that "Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language."
Quebec's language laws provide that the primary language of education in Quebec is French. But, in order to comply with the Constitution, the laws allow children educated in English in Canada to continue their education in Quebec in English. So, a child who went to school in English in Alberta, on moving to Quebec, could continue to be educated in English. The language laws were the result of political compromise to meet the requirements of the Constitution and Quebec's determination to be a French-speaking province. Part of the compromise allowed for unsubsidized private schools to offer education in any language without restriction; the cost of such schools meant that they would never become a significant part of the overall education system.
Parents who lived in Quebec who wanted their children educated in English, but who had no history of being taught in English, enrolled their children, sometimes briefly, in unsubsidized schools that taught in English. These "bridging schools" were advertised as a way of avoiding the language laws. Children attended bridging schools and then, having studied in English, sought to move to the regular, subsidized, English language schools.
The "bridging schools" posed a threat to the Quebec system as they offered a way for parents to avoid the mandatory French language instruction. The Quebec legislature saw the threat as significant and responded by passing legislation that excluded unsubsidized school instruction from consideration for entitlement to attend an English language public school. No matter how long a student studied in English in an unsubsidized school, that student would never qualify to continue their education in an English public school.
Parents of children who went to an unsubsidized school sued to have the exclusion declared unconstitutional. The Supreme Court of Canada agreed, in a unanimous decision in Nguyen vs. Quebec last week, and ordered the Quebec government to come up with a narrower solution. In so doing the court gave surprisingly little deference to the legislature and the legislative compromise. The decision that "bridging schools" posed a threat to the integrity of French language laws was found insufficient to support the exclusion.
The court considered the number of students involved with "bridging schools" and noted that it was small. While acknowledging the problem could get worse the court said "this legislative response seems excessive in relation to the seriousness of the identified problem and its impact on school clientele and, potentially, on the situation of the French language in Quebec." The court's words suggests a policy determination -"seems excessive" is hardly the language of deference to a legislative choice.
The importance of the court's decision goes beyond the details of English language instruction in Quebec. The court has, in effect, substituted its view of the seriousness of a problem for that of an elected legislature and done so in the language of policy options and choices. While the court's view may well be reasonable, the issue is one of who shall determine policy choices. This willingness to consider policy matters may have implications for future cases.
In November the Supreme Court will hear arguments in the case of Omar Khadr, a Canadian held in Guantanamo Bay, Cuba, by the United States. The Federal Government has repeatedly refused to seek Khadr's return to Canada. The November hearing will consider whether a Federal Court order requiring the federal government to seek Khadr's return is an unwarranted interference with the government's discretion to conduct its foreign relations as it sees fit. The decision in Nguyen suggests the Court may be open to an oversight of governmental discretion.
-James Morton is adjunct faculty at Osgoode Hall Law School and a partner at Steinberg Morton Hope & Israel LLP. He is past president of the Ontario Bar Association.
4 comments:
I would respond to this the same way that I responded to the claim that the Supreme Court's decision to strike down discriminatory marriage laws as being a case of the judges "writing legislation."
If not this, then what is a constitution for?
In a civilized society, even the rulers must obey the law. The ruling class, not matter what method by which they became the ruling class, are still human beings, with all of the normal human failings. This is why we expect the ruling class to obey the same laws as the rest of us. The idea that the above idea would also apply to determining what laws a legislature may pass, is not a separate notion, but, logically, is a notion wholly contained in the idea above.
One can challenge the judge's particular interpretation of how the constitution applies in this case, but to challenge the idea that the courts should be able to hold the legislature to the terms of the constitution is to abandon one of the basic foundations of a civilized society.
The problem that the Quebec legislature has, (as was the case with those opposed to same-sex marriage,) is with the constitution, but with the judges of the Supreme Court. They know, however, that they are not going to get the constitution changed. Judges make an easier target.
I hear you Mark -- my problem here is that the discretion to decide should (to my mind) be with elected officials and judges only dealing with clear contraventions of rights. So, while I agree with the result -- I think that anyone should be allowed to choose their schooling -- I don't think the judges should have made the decision. But you make a fair point!
I believe the Court was careful in striking a balance between going too far into the policy realm on the one hand, and leaving it entirely up to the Quebec legislature (without any constitutional oversight) on the other.
I read the decision in the "dialogue theory" tradition of the Court striking down the law on the grounds that it is too broad, while recognizing the legitimate objective of the Quebec Government, and allowing the legislature to "volley back" with a 1 year suspended declaration.
The Court recognized the problem of unsubsidized schools but noted that all time spent their in a blanket fashion leaves the door open for s.23(2) violations and thus must be modified.
One thing to note about this policy is that only children in well-off families have a chance to attend the english schools. Quite an unfair situation for poor Quebec families who want to have their children learn English.
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