CHAPTER 2

Segregation by descent

How does Quebec segregate rights?

The language of education provisions of Bill 101 divide Quebecers into two separate and distinct civil rights categories:

1) those that can choose to send their children to either French-language or English-language publicly-funded schools; and

2) those that can only send their children to French-language publicly-funded schools.

The discrimination procedure used to determine placement in either of these two civil rights categories is based upon:

1) who one’s parents are; and

2) what the parents’ classification is (i.e., eligibility certificate).

This classification is handed down, generation after generation.

This regime of discrimination based upon descent violates the basic tenet of a free and democratic society that all are equal under the law. As the Editorial Board of the Montreal Gazette observed:

…equal treatment under the law is at the heart of what it is to be a Canadian.[10]

Indeed, the language of Bill 101 used in the discrimination process described above is identical in principle to the one used under the now defunct apartheid system of South Africa. It is, in places, virtually word for word.

Are you comparing the plight of the Blacks of South Africa with those of the minority Anglophones of Quebec?

Certainly not. First of all, it is the Francophones and Allophones of Quebec who are restricted in their rights, not the Anglophones, who have the freedom to choose either French or English language schools. Secondly, the degree of rights abuse was much greater under apartheid.

But the process of discrimination is virtually the same.

That’s unbelievable. I’d have to see it for myself before I’d believe it.

Here is the applicable text from section 73 of Bill 101:

73. The following children, at the request of one of their parents, may receive instruction in English:
1) a child whose father or mother is a Canadian citizen and received elementary instruction in English in Canada, provided that that instruction constitutes the major part of the elementary instruction he or she received in Canada;
2) a child whose father or mother is a Canadian citizen and who has received or is receiving elementary or secondary instruction in English in Canada, and the brothers and sisters of that child, provided that that instruction constitutes the major part of the elementary or secondary instruction received by the child in Canada;
3) a child whose father and mother are not Canadian citizens, but whose father or mother received elementary instruction in English in Québec, provided that that instruction constitutes the major part of the elementary instruction he or she received in Québec;
4) a child who, in his last year in school in Québec before 26 August 1977, was receiving instruction in English in a public kindergarten class or in an elementary or secondary school, and the brothers and sisters of that child;
5) a child whose father or mother was residing in Québec on 26 August 1977 and had received elementary instruction in English outside Québec, provided that that instruction constitutes the major part of the elementary instruction he or she received outside Québec. (emphasis added)

How is that similar to the South African apartheid laws?

Compare the wording above from section 73 of Bill 101 to the following from the South African statutes:[11]

“native” means-
( a ) any member of any aboriginal race or tribe of Africa…; and
( b ) any person whose father or mother is or was a native in terms of paragraph ( a ); and
( c ) any person whose father or mother is or was a native in terms of paragraph ( b ); and
( d ) any other person, one or more than one of whose ancestors is or was a native… (emphasis added)

In both cases, individuals are segregated into separate and distinct civil rights categories by virtue of who their parents are and what their classification is.

Generally speaking, there were three major civil rights classifications under South Africa‘s apartheid system: "White", "Black", "Coloured" (and sometimes a fourth, “Asian“). Each individual was registered as belonging to one of these categories, each assigned different civil rights under law.

What happened in those exceptional circumstances when it was not so cut and dry what an individual's classification was? What verification procedure determined racial classification when a "White"-appearing individual, whom the authorities suspect was actually "Colored" or "Black", attempted to pass as "White" in order to enjoy the benefits and civil rights enjoyed under the "White" classification? On simple visual inspection, an individual may indeed have appeared as "White".

The parent-child discrimination procedure which appears as a legal doctrine in common law jurisprudence as well as in the statutes was employed.

The aforementioned illustration of the "White"-appearing individual is a case taken from South African jurisprudence. In Moller v. Keimoes,[12] the test of descent was applied. Moller, a fully "White" blooded male was married to a "Colored" woman. Moller's daughter attended a "White"-only publicly funded school. The daughter, on visual inspection appeared to be "White". However, when it became known in the community that the mother wasn't 100% "White" exception was taken to the girl's presence in the school and she was removed. Moller petitioned the court to have his child reinstated.

How was the Moller child's classification and, thereby, her eligibility to attend the school ultimately determined? The South African court didn't look upon the Moller child as an independent entity to whom a single nationally entrenched set of civil rights automatically accrued; in fact, it didn't even look at her skin color. It looked to her ancestral lineage. The child's classification was determined according to what her parents' and grandparents' classification was. Three of her grandparents were classified "White" and the fourth Non-European", meaning either "Black" or "Colored". As a result, the Moller child's racial classification was designated "Colored" and she was banned from the all "White" school.

You acknowledge that the degree of rights abuse was much more in South Africa than in Quebec.

Of course; that’s not even up for debate. But the degree of rights abuse relative to South Africa shouldn’t minimize the outrage that Quebecers and Canadians should feel regarding the fact that the same discrimination procedure is used in Canada.

Even Claude Ryan, a former Liberal Member of Quebec’s National Assembly and Minister responsible for the Charter of the French Language felt uncomfortable that a Quebec law shared any similarities with those of the then apartheid regime of South Africa. Although he was speaking on restrictive sign laws and not the language of education provisions, Ryan‘s discomfort was reported in this manner:

Language minister Claude Ryan found himself in hot water yesterday when he said he didn’t feel comfortable having Quebec associated with a country like South Africa because both countries have restrictive sign laws.

…and…

“I personally wouldn’t want to stay in a family of countries like that,” Ryan told a legislature committee examining Bill 86, which would allow languages other than French on commercial signs. “I’d prefer to be in the big family of liberal democracies.”[13]

As it stands now, South Africa is ahead of Quebec in terms of equality rights. This should be a source of shame for all Quebecers. Everyone should feel unsettled knowing that Bill 101's language of education provisions are, in places, word-for-word for the now-defunct apartheid statutes of South Africa.

Even the usually accommodating Editorial Board of the Montreal Gazette has expressed their discomfort with Bill 101‘s descent provisions:

[There is] an aspect of Quebec’s language laws that people often prefer to forget precisely because of its unpleasant echoes of racial laws.

That aspect is the law’s rule that the only people who may attend English school are those whose parents attended primary school in English in Canada.

The privilege is not specifically linked to race but in practice the effect is much the same. Some members of Quebec society -- indeed, the majority -- cannot do something that their neighbors can do.

The privilege has nothing to do with a person’s own circumstances, needs or abilities; it relates only to the circumstances of his or her parents or, as time goes on, grandparents (the privilege, like an aristocratic title, is hereditary).[14]

…and…

[As the language of education provisions of Bill 101] now stands, English school is basically accessible only for children with at least one parent who attended English primary school in Canada. So there are already two classes of citizens…[15]

You have emphasized the loss of individual and minority rights for Quebec’s Anglophone community. In this instance, however, you have pointed out that it is members of Quebec’s francophone and allophone communities who are the victims as it is they who don’t have the free choice to go to either English or French publicly-funded schools, something the Anglophones can do.

The largest group discriminated against by the language of education provisions of Bill 101 is Francophone Quebecers.

The vast majority of Quebecers are Francophones and through the democratic process, they are imposing this restriction upon themselves.

This doesn’t make it any less wrong. We are all supposed to be equal before and under the law as individuals -- not as members of any group, linguistic or otherwise -- without being segregated in our rights based upon who we have descended from.

The parent/child connection is, of course, how we obtain our genetic characteristics. We also obtain our nationality -- a non-genetic trait -- according to our parents. It is my contention that the tying in of one's parents' status places it under any of the following prohibited bases of discrimination under either the Canadian or Quebec charters of rights: national or ethnic origin, race, family status, civil status, language, or social condition.

Aren’t there other laws in Canada that determine rights based upon descent?

I know of only two.

One of the ways citizenship or nationality is determined is through the parent/child relationship. Of course, “nationality” is a universally recognized prohibited base of discrimination. Countries often discriminate on the basis of nationality regarding whom they admit into a country (almost all western democracies have immigration quota systems based upon an applicant’s country of origin) but once inside a country no one may be discriminated against on this basis.

The other is the Indian Act.

Tell me about the Indian Act

Although several other factors can also be used, the key procedure under the Indian Act that determines one’s status as an Indian in Canada is whether either of one’s parents is classified as an Indian which is, like certificate status under Bill 101, handed down from parent to child. Once an individual is classified as “Indian”, he has access to certain rights and freedoms that other Canadians don’t such as certain mobility rights, land claims, band membership, and exemption from various forms of taxation.

Note, again, the language. Here is the pertinent section of the Indian Act:

6(2) Subject to section 7, a person is entitled to be registered if that person is a person one of whose parents is or, if no longer living, was at the time of death entitled to be registered under subsection (1).[16] (my emphasis)

Just as it does under Bill 101, the parent/child relationship lies at the very foundation of the race-determination procedure of the Indian Act. Although hardly anyone has ever called Bill 101 a “race law”, time and again notable Canadians -- jurists and human rights experts alike -- have declared the Indian Act precisely that.

Who, specifically, has called the Indian Act a “race law” or racist?

Then-Chief Commissioner of the Canadian Human Rights Commission Gordon Fairweather:

...the whole (Indian) act is based on race and is therefore discriminatory...”[17]

The Editorial Board of the Montreal Gazette agrees:

…bloodlines are the way aboriginal rights in Canadian law are handed down from one generation to the next. Aboriginal rights in Canadian law are based on race.

…and…

The concept of rights based on racial purity is repugnant. That is why the Indian act is obsolete.[18]

In a controversial and, later, overturned decision, Justice Francis Muldoon of the Federal Court wrote:[19]

The Indian Act is racist. It countenances the segregation of people by race, into racist enclaves according to racially discriminatory laws.

Legal literature and journals regularly refer to the Indian Act as a “race law” because that, obviously, is what it is. Billing itself as “a journal devoted to judicial consideration of Charter and human rights issues,“ here is the language employed by the Canadian periodical Charter and Human Rights Litigation, in reference to Canada’s Indian Act:[20]

Race-based laws create a particular problem for public policy makers in Canada and internationally. Both the Universal Declaration of Human Rights (“UDHR”) and the Charter prohibit laws that discriminate on the basis of race.

You’re trying to imply that bill 101 is a race law just like the Indian Act because they both employ the parent/child relationship to discriminate. The big difference, however, is that aboriginal people are a distinct race; people segregated under Bill 101 are not.

Incorrect. The Indian Act requires that only one parent be “Indian” in order for the classification be handed down to the child. Therefore, an individual who is, for example, only 1/64th actual Indian blood, through the descent of six generations of just one “Indian” classified parent in each generation, can be classified “Indian” as well. An individual with 1/64th actual Indian blood classified as “Indian” is hardly discrimination based upon “race”. No, the discrimination is solely by virtue of the parent/child connection and in virtually all the declarations ever made by individuals such as those cited above, the distinction between those with full Indian blood and anything less has never been made.

Why are laws such as the Indian Act and Bill 101 allowed?

The Indian Act, until recently, was specifically exempted from application of the Canadian Human Rights Act.[21] This provided a convenient explanation why equality rights provisions of the same Act could not be used to invalidate it. A better explanation is provided by the same journal article cited above:

The international prohibition on race-based laws is fairly rigid in its articulation. No exceptions are contemplated.

Under the Constitution of Canada, however, exceptions to the rule against race-based laws have been expressly written in. Both sections 15(2) and 25 of the Charter contemplate situations where race-based laws will be upheld as constitutional.

The Indian Act, then, is understood and accepted as a “race-based law” yet the Canadian Charter of Rights and Freedoms makes an exception for it?

Correct. Again, from the same Journal article:

…Justice Estey’s view that section 91(24) “authorizes the Parliament of Canada to legislate for the benefit of the Indian population in a preferential, discriminatory, or distinctive fashion vis-à-vis others,…and [the Charter] cannot be interpreted as rendering unconstitutional the distinctions that are expressly permitted by the Constitution Act, 1867.”[22]

The federal government’s own Secretary of State gives this explanation:

Section 25 of the Charter makes it clear that no other provision can be used in a way that will interfere with any special rights that the Native people have now or may acquire. For example, any new benefits they may gain from a settlement of land claims would not run afoul of the general equality rights as set out in the Charter.[23]

This same principle -- that equality rights cannot be used to invalidate other “rights” in the constitution -- was invoked by Canada’s Supreme Court to quash a challenge to the language of education provisions of Bill 101. In March of 2005, the Canadian Supreme Court handed down its decision in the Gosselin case.[24] French-speaking families in Quebec wanted their children educated in English at publicly-funded schools but did not qualify under Bill 101 or section 23 of Canada’s Charter of Rights and Freedoms. They challenged the law by citing equality guarantees in the Quebec Charter of Human Rights and Freedoms.

The Court denied the parents’ claim to equality saying that:

…there is no hierarchy amongst constitutional provisions, and equality guarantees cannot therefore be used to invalidate other rights expressly conferred by the Constitution.[25]

By the mere fact that the Court has invoked this principle, does it not in fact confirm that discrimination on a prohibited basis is occurring? If that was not the case, why else would the Court have invoked the principle that equality guarantees can’t be used to invalidate other rights?

That’s certainly how I see it.

It is very troubling to me -- as I believe it should to all Canadians -- that the parent/child discrimination process has, by virtue of it being a constitutional provision, taken precedence over equality rights.

Canada’s Indian Act, the South African apartheid system, and the language of education provisions of Bill 101 use the parent/child discrimination procedures.

It gets worse.

There is wide-spread belief in certain quarters that Canada’s Indian Act actually served as the inspiration for South Africa’s apartheid laws:

By enclosing Indigenous peoples with in the legal category of wardship apart from the rights and responsibilities of citizenship, the first Indian Act set the direction for its many legislative cousins in the colonies and former colonies of Great Britain.[26]

…and…

The Indian Act formed much of the basis for the introduction of oppressive apartheid policies against Black people in South Africa which lasted for decades.[27]

…and…

It is important to consider that the Apartheid system of South Africa is in some ways modeled after sections of the Indian Act of Canada.

Officials of the Indian Affairs Department actually traveled to South Africa to discuss some of the sections of the Indian Act which were then enacted by the apartheid regime, particularly concepts of keeping people in villages, giving them passes in order for them to leave the village, and setting up town councils like band councils.[28]

The Indian Act, South African apartheid, Bill 101. Canadian discrimination has come full circle.

This whole parent/child discrimination thing smells very bad.

It upsets me when Canada and its media largely ignore this discrimination.

Sadly, the Editorial Board of the Montreal Gazette, which at times will show flashes of conscience, as demonstrated in the several quotes I have reproduced in this chapter, retreats into the safety of complacency and political correctness when it comes to Bill 101. What possesses them to write that "...our statutes and regulations apply equally..." and "the cornerstone of a modern, multicultural nation such as Canada is an impartial legal code that governs everyone equally..."[29]

It upsets me to know that Canadian courts using Canadian constitutional law are complicit in furthering parent/child discrimination. But forget about all the legal mumbo-jumbo. On a strictly intuitive level, meting out rights based upon who your parents are is just plain wrong. And I don’t need nine unelected judges sitting on some court in Ottawa to tell me that.

The continued presence of the language of education laws is, for me, the main reason why I want Canada to end. It is a violation of that most sacred principle of equality. And it’s not like it’s some archaic law that we’ve inherited from several hundred years ago. This is a law that was created since the moon landing.

Why do Canadians put up with such a law? Why, apparently, is the media complicit in sweeping even the discussion of this topic under the carpet?

When the Supreme Court of Canada came down with the ruling, cited above, denying francophone Quebecers access to English publicly-funded schools, the Editorial Board of the Montreal Gazette declared that “yesterday’s ruling is one we can all live with.” All that the Gazette appeared concerned with was not the rights of individual francophone Quebecers but, rather, “keeping the country intact” and avoiding “serious political consequences” (i.e. election of a separatist PQ government).[30]

I for one have had enough.

What is responsible for the virtual absence of a national discussion on laws of descent and their inherent discrimination?

Perhaps it is because this form of discrimination does not involve skin colour, gender or religion, bases of discrimination all too obvious to miss. Whatever the reason, the parent/child discrimination procedure has escaped detection as a segregation law by even the most liberal and open-minded Canadians in the media, the government, academia, the legal profession, politicians, and, yes, the public at large. Yet the similarities to current and former "race" laws both domestic and international are too similar to ignore.

The reader does not have to buy into the claim that Bill 101’s language of education is discrimination based upon “race”. It is enough to be outraged that such parent/child segregation exists.

And to those who respond that the parent/child discrimination procedure is not a race law and is an acceptable form of discrimination, I say: if it is an acceptable form of discrimination, let’s utilize it in other areas. Why restrict using the procedure only to determining access to English schools? Let it apply to where people can live, which hospitals they can use, which school board elections they can vote in, and the right to post in English on commercial signs.

Although never mentioned in polite, politically-correct company, we all know what this conspiracy of silence is meant to do: placate Quebec nationalist sentiment in order to keep Canada intact.

This is a price I no longer want to pay.

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