Bill 104 unconstitutional, Supreme Court says

October 22, 2009

OTTAWA – The country’s top court has ruled that a Quebec law restricting access to English schools is not constitutional.

In a unanimous decision, the Supreme Court of Canada struck down Bill 104 which was adopted by the Quebec government in 2002 to close a loophole in its French-language charter that had enabled some students who weren’t eligible to attend English schools to gain that right.

They did so by attending an unsubsidized English private school for at least a year. Many then switched to English public schools, but the Quebec law ended that option.

The ruling recognized the importance of protecting the French Language, but concluded that the Quebec government’s response went too far.

"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," wrote Justice Louis LeBel in the judgment. "The absolute prohibition on considering an educational pathway in a (unsubsidized private school) seems overly drastic."

“I’m happy. You can hear me laugh,” said Audrey Smith, one of the 25 families represented by lawyer Brent Tyler in the Bill 104 legal challenge.

Smith had switched her eldest son Kevin Queenland-Smith to a private unsubsidized elementary school because he had been having difficulty in French school. When the Quebec government passed Bill 104 in 2002, Smith’s son had already attended Emmanuel Christian School in Dollard des Ormeaux for a few years.

But an administrative error meant her son never got his English eligibility certificate before the law took effect while other students at the school did, said Smith who is originally from Jamaica. Her son completed his elementary schooling at Emmanuel Christian but had to switch to a French high school. He failed Grade 7 and drop-out last spring, Smith said.

But he has since completed his high school studies in English at an adult education centre, she said.

Smith had yet to reach Tyler to get details of the Supreme Court’s decision so she didn’t know if it means she’ll be able to switch her two younger sons to English school. Smith said she wasn’t sure if she would switch her youngest out of French school because he isn’t having difficulty. But she hopes she can switch her son, who is in Grade 5, to English school.

“We’re very happy that the law was declared invalid. That’s what we asked for,” said Tyler, the Montreal lawyer who represented the 25 families involved in the legal challenge.

However, he lamented that the ruling means his clients files–with the exception of Satbir Bindra–will be sent back back to Quebec’s Education Department “for a determination on their rights.”

Tyler said he believes they should have been granted immediate access to English school. “I don’t know what is going to happen. It’s going to depend on the minister,” Tyler said.

“It took us seven years to get this far. Does the court expect us to take another seven before their charter rights are vindicated?” Tyler said.

“What I have to say to my clients is that “˜you won, but you don’t have the right that’s been recognized yet.”

“The only reason why they were refused was Bill 104. If the reason they were refused is declared invalid, then why aren’t they entitled to a (English eligibility) certificate now?

Tyler did not sound optimistic that the Quebec government will open the door to English schools for the children of the families in question. “My gut feeling is they will continue to be mean-spirited and they will ignore the spirit of this judgment and they will find ways to refuse most of the people.”

The English schools boards most affected by Bill 104 are the English Montreal School Board and the Lester B. Pearson School Board. Both boards say they’ve lost about 400 to 500 in new registrations every year because of Bill 104.

Marcus Tabachnick, the chairperson of the Pearson Board, said he hoped that the Quebec government respects the spirit of the decision–-“and that is not to limit access to English education any further."

EMSB chairperson Angela Mancini called it a “small victory.”

“It’s certainly not what we would have liked to have seen. It’s basically telling the government to “˜go back and do homework,’” Mancini said. “We’re not sure at this point what that will mean one year from now and what that will do to our system.”

The Supreme Court ruling will be suspended for one year, giving the national assembly time to introduce new legislation to address the issue. In the meantime, the Education Department must address the 25 respondents named in the case. One student, Satbir Bindra, whose sister has been previously granted permission to attend an English school must immediately be given permission to also get his education in English.

LeBel also noted that "bridging" schools had been set up to allow access to English schools that represented a threat to the French Language that needed to be addressed.

"I do not wish to deny the dangers that the unlimited expansion of (unsubsidized private schools) could represent for the objectives of preserving and promoting the French language in Quebec," LeBel said in the ruling. "If no action were taken to control this expansion, the bridging schools could become a mechanism for almost automatically circumventing the Charter of the French Language’s provisions on minority language educational rights, creating new categories of rights holders under the Canadian Charter and, indirectly, restoring the freedom to choose the language of instruction in Quebec."

The Quebec Court of Appeal struck down Bill 104 in 2007, with the majority on the court ruling it was inconsistent with the Canadian Charter of Rights and Freedoms.

"Twenty per cent of students in our elementary schools are not eligible to continue in our secondary schools," said Jonathan Goldbloom, a spokesman for the Quebec Association on Independent Schools, one of the interveners in the court case. It translated into about 340 students in 2007, Goldbloom said.

That’s because the private schools to which Goldbloom is referring, such as Lower Canada College in Montreal, don’t receive government subsidies at the elementary level but do for high school. As a result, students need to be eligible to attend English school to study there at the high school level under Bill 101.

The impact of Bill 104 on English public schools represents a loss of about 400 to 500 new registrations every year, said Debbie Horrocks, head of the Quebec English School Boards Association.