CHAPTER 5

Let’s take the very worst of Bill 101 and entrench it in the Constitution

Tell me about our constitution and segregation.

The very essence of Canadian law is our constitution, the fundamental law of the land. And that document clearly and unambiguously makes inequality and segregation of rights the definition of what being a Canadian is. Section 23 of the so-called Canadian Charter of Rights and Freedoms outlines the "right" to which official language a person can be educated in Canada. In addition to discriminating against anyone who is not a citizen, the right to public education in one or the other official language is available only to those whose parent(s) are in possession of a certificate that is handed down from one generation to the next, just like a peerage title in the class-conscious England of old.

Section 23 reads:

23.(1) Citizens of Canada
(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or
(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,
have the right to have their children receive primary and secondary school instruction in that language in that province.
(2) 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.
(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province
(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and
(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds. (my emphasis)

Where in the world would the framers of our precious constitution -- the highest and most fundamental law of our land -- get such a horrible idea?

The section 23 discrimination provisions were inspired by and based upon the language of education provisions of Bill 101. As discussed in the earlier chapter entitled “Segregation by descent“, Bill 101 segregates all Quebecers into two separate and distinct civil rights categories: those that can freely choose to send their children to either French or English publicly-funded schools and those that can only send their children to French publicly-funded schools.

“Inspired by and based upon” Bill 101. According to you…

According to no less an authority than the Supreme Court of Canada. In its historic Protestant School Board ruling of 1984, the court said:

It is therefore not surprising that Bill 101 was very much in the minds of the framers of the Constitution when they enacted s. 23 of the Charter, which guarantees "minority language educational rights". This is confirmed when the wording of this section is compared with that of ss. 72 and 73 of Bill 101, and with other provincial statutes on the language of instruction.

…and…

By incorporating into the structure of s. 23 of the Charter the unique set of criteria in s. 73 of Bill 101, the framers of the Constitution identified the type of regime they wished to correct and on which they would base the remedy prescribed.[55]

Who is responsible for this disaster?

As the Supreme Court indicated above, it was the “framers of the Constitution.“ None other than the Rt. Hon. Jean Chrétien, then Justice Minister under Pierre Trudeau during the era of patriating the constitution, appears to hold the most responsibility. Here’s what he said on the matter when he appeared before a parliamentary committee back in 1981:

The criticisms we receive stem from the section relating to education. Bill 101 would be slightly changed but we have tried to respect it as much as possible.

…and…

In an effort to adhere as closely as possible to Quebec legislation, we have fashioned our amendment to the sections on education after Bill 101.[56]

The highest law of the land fashioned after a law that segregates Canadians into separate civil rights categories by use of a questionable procedure based upon one‘s parents‘ classification!

It’s worse than that: try changing it.

At least Bill 101 as a non-constitutional law can be amended by a simple 50% plus one vote in the Quebec National Assembly. Amending a constitutional provision is next to impossible. Chrétien and his cohorts not only put this segregation law into our constitution but because of the extremely strict criteria contained in the constitutional amending formula it is, in effect, written in stone.

I can’t believe that in this day and age such asymmetrical rights would exist in Canada’s constitution.

It gets worse.

How so?

This asymmetry has its own asymmetry.

Asymmetry within asymmetry? How could this horrible law be any worse?

Because of Section 23(1)(a), which reads:

23.(1)(a) Citizens of Canada whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside have the right to have their children receive primary and secondary school instruction in that language in that province.

So what’s the problem? Aside from the parent/child discrimination procedure which we all agree must be condemned, how is s. 23 otherwise asymmetrical?

Most reproductions of the Charter fail to mention that section 23(1)(a) has to read in conjunction with s. 59 of the Constitution Act, 1982 which is always buried somewhere else, far out of sight. It reads:

59. (1) Paragraph 23(1)(a) shall come into force in respect of Quebec on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

(2) A proclamation under subsection (1) shall be issued only where authorized by the legislative assembly or government of Quebec.

(3) This section may be repealed on the day paragraph 23(1)(a) comes into force in respect of Quebec and this Act amended and renumbered, consequentially upon the repeal of this section, by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

What effect does section 59 have in Quebec?

Because s. 23(1)(a) and s. 59 work together, it means that immigrants from French-speaking countries, such as France and Haiti, who received their primary education in French, can come to any province outside Quebec, become citizens, and have the constitutional right to send their children to French publicly-funded schools.

However, immigrants from English-speaking countries, such as the United States or Great Britain, who received their primary education in English, who come to Quebec and become citizens do not have the constitutional right to send their children to English publicly-funded schools.

Asymmetry upon asymmetry!

I refer to s. 23 as a "so-called" right because for an alleged "right" it's one of the most restrictive, segregating, discombobulated constitutional provisions on the face of the Earth. If Canada wanted to enshrine a "right" regarding language of education into our constitution they could have simply said:

All residents of Canada have the right to choose to send their children to either French or English publicly-funded school.

It is surprising that full freedom of choice for all residents of Canada is not what constitutes Canada’s minority language of education rights in the Charter, especially since that is what Mr. Chrétien claimed at the time was his and Mr. Trudeau’s stance:

As Mr. Trudeau, myself and many others have always maintained, we are in favour of complete freedom of choice. In my opinion, this is one of our rights. I am slightly disappointed by the fact that this right has not been given to Canadians through a Charter of Rights.[57]

“Slightly disappointed.” Either something is a right or it isn’t. If it is, its absence cannot “slightly disappoint“, Mr. Chrétien, it can only outrage.

Why in heaven’s name would Mr. Chrétien and other federalists put such a provision, section 23(1)(a), in an already horrible section of the Charter of Rights and then hide section 59 out of sight?

One possible explanation came from Warren Allmand, former Member of Parliament for the predominantly English-speaking Quebec riding of Notre-Dame-de-Grace who could not help breaking with his own party over the issue. He chastised Chrétien over what he perceived as brazen pandering to Quebec nationalists:

…your attempt to compromise on minority language education rights, and on general language rights in order to gain more support among, let us say, the more nationalistic group in Quebec, for example, you are not gaining that support. I maintain you could take off all your clothes and you would still not get Levesque and his supporters’ support, but you are losing the support of the ethnic
groups in Quebec and the minorities in Quebec by watering down the minority language provisions.

So you are losing support and gaining nothing. ...I suggest do what is right and not compromise…have all rights apply to citizens equally and not some for one group and some for another.[58]

That’s pretty strong language.

Warren Allmand, a sitting Liberal MP, courageously voted against the Constitution Act, one of four Quebec MPs to do so, specifically because of section 59 and its exemption of section 23(1)(a) application in Quebec:

...there is another clause which is so offensive to me and so unacceptable that I cannot vote for the resolution (to patriate the constitution); that is, Section 59.[59]

But, certainly, there must be a good reason why honorable people such as Jean Chrétien would have included such a provision in our constitution.

As Warren Allmand indicated, it was an attempt to pander to Quebec nationalism, to try and convince Quebec that they can protect the French culture and language within the Canadian context. In 2007, on the 25th anniversary of the Charter of Rights and Freedoms, the Editorial Board of the Montreal Gazette concurred with this sentiment when they wrote:

…the charter, in odd partnership with Bill 101, has made French more secure.[60]

Alas, more evidence that Bill 101 is a Canadian law.

I say: the road to hell is paved with good intentions. Segregating rights and discrimination based upon the parent-child connection is too much of a price to pay to keep Quebec happy.

However, Quebec wasn’t happy, even with section 59 or any of the other concessions that they received from the patriation of the constitution in 1981. Chrétien’s attempt at pandering -- which has cost the Anglophone community of Quebec dearly for the past 28 years -- was all for naught. As Pierre Trudeau observed:

There was a vast amount of new power given to the provinces from the list drawn up by the 'gang of eight', of which Quebec was one of the more notorious members, so, to those who say that Quebec got nothing I would point out that they did not say, 'Thank you,' but they got a lot.[61]

I am deeply troubled by this eagerness on the part of Canada to establish two classes of citizens.

Former Chief Commissioner of the Canadian Human Rights Commission, Max Yalden, put it best when he said this about section 23:

This fundamental problem is particularly evident in the treatment of the linguistic majority and of the non-citizen. They are distinguished in this charter of rights not by the rights they are granted but by the rights they are denied. While this kind of constitutional article could perhaps be perceived from a political standpoint as offering a commonality of treatment consistent with existing provincial law or practice, it is, in our view, discriminatory among citizens as well as between citizens and non-citizens. It is perhaps particularly unfortunate that our long-standing tradition of according basic civil rights -- except the right to vote, which enjoys a special status in virtually all countries -- according, as I say, basic civil rights to immigrants as well as citizens has been bypassed in so important an area as the language of education. This is a form of discrimination among neighbours and potentially even within families which I personally would be reluctant to see enshrined in a constitutional bill, whatever its apparent attractiveness in a more immediate sense.[62]

In contrast to Yalden, I can’t help thinking of Jean Charest, the Premier of Quebec as of this writing, and a so-called federalist (“so-called” because it’s like pulling teeth to ever get him to say he’s a Canadian). Politicians pay lip-service to the principle of equality yet seem to take every opportunity to denounce others of fostering different classes of rights.

What did he say?

Charest said the following in response to Parti Québécois leader Pauline Marois when she proposed that Quebec law expand upon the two classes of citizens idea:[63]

Would René Lévesque, a great democrat, have accepted a bill creating two classes of citizens, a proposal that renounces the basic democratic principle that we all have the right to vote, the right to participate in how our society is governed? This draft legislation by the PQ goes against the values of Quebec.

What chutzpah. What gall. What arrogance.

Charest, a man who defends Bill 101 at the drop of a hat. Charest is Quebec’s top law-maker and as such is the prime custodian of Bill 101, which makes him a promoter and supporter of a segregation law that already divides Quebecers into two separate and distinct classes of citizens. Yet he has virtually no inhibitions about taking others to task when they propose the same thing.

If Jean Charest is so opposed to the concept of two classes of citizens, why hasn’t he and his Liberal Party put section 23(1)(a) into effect in Quebec, something he can do as the leader of a majority government?

The short answer is that Mr. Charest doesn’t practice what he preaches.

Another answer is that he doesn’t believe in equality.

A more cynical answer is that the Liberal Party of Quebec knows that no matter how badly they treat the minority non-francophone community of Quebec and no matter how much they’re ignored, they can still count on their vote come election time because the alternative -- the Parti Québécois -- is anathema to the non-Francophones. There is no political benefit in doing something that may alienate the all-important “soft” nationalist vote. So, once again, rights are compromised and it is the Quebec Anglos that are the losers.

Charest’s refusal to do right by Quebec Anglophones by invoking section 59 is despite the fact that it has been the official policy of the Liberal Party of Quebec for almost 30 years that all English-speaking immigrants, citizens or not, be allowed to attend publicly-funded English schools in Quebec.[64]

How have we allowed matters to get to the point in this country where the highest law of the land, the Canadian constitution, the law which supersedes all other, incorporates an insidious law of discrimination?

In a word: fear.

I believe we, as a society, have been reluctant to be vigilant in opposing such discrimination because we have been afraid that to do so would push the majority of Quebec’s population towards separating.

To me, this reluctance to stand against segregation for almost 30 years calls into question the viability of the country itself. This segregation law, now entrenched in our constitution, symbolizes the extent to which Canadians and their federal government have been willing to sacrifice those values we hold most dear in order to placate Quebec nationalism and give in to our own unwarranted fear of separatism and loss of country.

This is unacceptable. Either this country must stand up and protect the values it claims to hold most dear or other arrangements will be made.

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