Top court strikes down Quebec English school law
Supreme Court of Canada calls Bill 104 'excessive'
Last Updated: Thursday, October 22, 2009 | 10:46 PM ET
CBC News
Brent Tyler, the lawyer who masterminded the challenge to Quebec's language law on schools, said his clients are somewhat disappointed by Thursday's ruling. (Tom Hanson/Canadian Press)Canada's top court has declared a Quebec law barring certain students from going to public English-language schools unconstitutional, a decision that has "angered" the province's government.
The Supreme Court of Canada released its unanimous ruling on Bill 104 on Thursday morning, effectively throwing out two Quebec government appeals to preserve the legislation.
The court called Bill 104 "excessive" and lacking nuance, and is giving Quebec one year to replace it with an appropriate compromise.
'Unfortunately for my clients, they haven't been declared eligible for English instruction immediately. Their files have been referred back to the minister of education to be studied. So in that respect, my clients are disappointed'—Montreal lawyer Brent Tyler
Quebec Culture Minister Christine St-Pierre reacted almost immediately to the decision, telling reporters she is "disappointed and angered" by the ruling.
Premier Jean Charest said he hopes to work with opposition parties on a legislative response that will underscore the "primacy of the French language" as a "key value" in Quebec society.
A group of Quebec parents challenged Bill 104 shortly after it was adopted by the province in 2002. The controversial law closed a loophole in the province's French Language Charter, which guides Quebec's language policy in all sectors. The loophole allowed parents who sent their children to private English school for a short time to subsequently register them in Quebec's public English-language system.
Quebec's strict language laws require the majority of children in public schools to attend French-language institutions unless they meet a long list of criteria and can provide a "certificate of eligibility" for going to school in English. But prior to Bill 104, students who attended private English school for a year or less could earn their eligibility for the English public system.
Bill 104 was originally struck down by Quebec's Court of Appeal two years ago for violating Section 23 of the Charter of Rights and Freedoms, which provides a child who has received schooling in English or French the right to continue to be taught in that language.
A 'very partial victory': families
For the 25 families taking part in the legal challenge, Thursday's Supreme Court ruling is a "very partial victory," said Montreal lawyer Brent Tyler, who has worked on the lawsuit since its inception.
"We're very happy the law was declared invalid. That was the first step," he told CBC News in Ottawa.
"But our reasoning is because that law was the sole reason for being refused, and if that law has been declared invalid, then why on Earth should [parents] not be able to avail themselves of their constitutional rights right now?"
The one-year grace period granted to Quebec's government leaves students in limbo, Tyler said.
"Unfortunately for my clients, they haven't been declared eligible for English instruction immediately. Their files have been referred back to the minister of education," which will review whether they can enroll in the English system, Tyler explained.
"So in that respect my clients are disappointed, because after having won, they are now being told they have to start at zero again."
The ruling could potentially affect thousands of Quebec students over time, Tyler said. Enrolment in English school boards dropped by about 5,000 students in the years following Bill 104's adoption.
Ruling renews debate about French
Parti Québécois Leader Pauline Marois tabled an emergency motion after Thursday's ruling, calling on Quebec's provincial legislature to "denounce" the Supreme Court decision, and demanding the premier stand up for the French language.
Marois told the province's assembly she is surprised the Liberals don't have an immediate action plan, given the governing party has expected a ruling in the case since 2007.
Charest said he too was disappointed by the decision, because Bill 104 was an important law designed to prevent parents from using a back door to do something that technically isn't allowed.
The government's response will stress the importance of French as a Quebec value, Charest said.
With files from The Canadian Press
