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Cablegate: Quebec School Language Law Fails Constitutionality Test

VZCZCXRO9988
RR RUEHGA RUEHQU RUEHVC
DE RUEHOT #0854/01 3091446
ZNR UUUUU ZZH
R 051445Z NOV 09
FM AMEMBASSY OTTAWA
TO RUEHC/SECSTATE WASHDC 0040
INFO ALL CANADIAN POSTS COLLECTIVE
RUEHFR/AMEMBASSY PARIS 0001

UNCLAS SECTION 01 OF 02 OTTAWA 000854

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PGOV PHUM CA
SUBJECT: QUEBEC SCHOOL LANGUAGE LAW FAILS CONSTITUTIONALITY TEST

REF: MISSION CANADA DAR OCTOBER 23, 2009
MISSION CANADA DAR OCTOBER 29, 2009

1. (SBU) Summary: Canada's Supreme Court unanimously struck down
a Quebec law that closed a loophole in allowing English-language
education in the francophone province, finding that it was
"excessive" and violated constitutional minority language rights.
Signaling that it found the procedures -- and not the intent -- of
the law unconstitutional, the court suspended the application of
its judgment for one year to allow the Quebec provincial government
to redraft the legislation. The law primarily affects recent
immigrant families seeking an English-language foundation for their
children in Quebec. Provincial leaders and political commentators
have expressed frustration with the ruling, as the debate over the
primacy of French in Quebec is largely over for the great majority
of Quebecers and for both the federal and provincial governments.
The decision will not turn the tide against the protection of
French in Quebec and instead emphasizes the constitutionality of
Quebec's language laws overall. End summary.

2. (U) Consulates General Quebec City and Montreal collaborated
with Embassy on this cable.

L'etat, c'est fran????ais

3. (U) The Charter of the French Language, also known as Bill 101,
defines French as the only official language of Quebec and
designates French as the "language of instruction," while being
"respectful of the institutions of the English-speaking community
of Quebec and the ethnic minorities." Bill 101 nonetheless allows
English-language public schooling for children who either have
parents who attended English-language schools in Canada or who
themselves (or their siblings) attended English-language schools in
Canada. This language mirrors Section 23 of the Canadian Charter
of Rights and Freedoms ("the Charter"), which protects minority
language educational rights. The Charter recognizes the right to
generational continuity of a language and defines the right to a
public education in either French or English as a parental right
for their children, based on the language of education of the
parents.

4. (U) Newly immigrant families to Quebec, whose parents do not
have the requisite English educational history in Canada, found a
loophole in Bill 101 by sending one child briefly to a private
English-language school ("bridging school") so that all the
children would subsequently be eligible to attend publicly funded
English schools. In 2002, the provincial government enacted Bill
104, which amended Bill 101 to "disregard" periods of attendance at
a bridging school in determining whether a child is eligible to
attend English public school. In 2005, 25 families, with the
support of the Quebec English Language School Board Association,
sued to overturn Bill 104. Two provincial courts upheld the law,
but, in 2007, the Quebec Appeals Court ruled against Bill 104.

The end does not justify the means but...

5. (U) In an unanimous decision on October 22, the Supreme Court
upheld the ruling of the Quebec Appeals Court, finding that the
objectives of Bill 101 and Bill 104 to protect the status of French
as the official language of Quebec were "sufficiently important and
legitimate" to justify a limit on Charter rights but that "the
means do not constitute a minimal impairment of the constitutional
rights" and thus are "excessive in relation to the seriousness of
the problem" (ref a). The court repudiated attendance at a
bridging school as "indicative of a genuine commitment" and
therefore ruled that this alone was not enough to grant a child's
parent the status of a minority language rights holder under the
Charter. The ruling affects less than 1% of the student population
in Quebec; however, the Supreme Court also noted that it did not
"wish to deny the dangers" of bridging schools to circumvent Bill
101 and "restore the freedom to choose" the language of instruction
in Quebec. The court suspended the effects of its ruling for one
year "to enable Quebec's National Assembly to review the
legislation" due to the "difficulties this declaration of
invalidity may entail" to the preservation of French in Quebec

OTTAWA 00000854 002 OF 002


society.

Pas encore

6. (SBU) Quebec reaction to the ruling includes frustration and
exasperation with yet another hurdle imposed on the province,
especially when federal and provincial political parties, the
majority of Quebecers, and the Supreme Court all agree that Quebec
has the constitutional right to protect the primacy of French.
Quebec Premier Jean Charest referred to the situation as "status
quo" in light of the suspension of the judgment for one year and
the narrowness of the decision. The ruling nonetheless gives
hard-line separatists fodder to stoke the small but still
smoldering fires of sovereignty, and some public commentary focused
on the "threat" to the integrity of Quebec language laws. In the
House of Commons, the New Democratic Party focused on this issue on
its "Opposition Day" motion on October 28, despite its stated
priorities for pension reform and employment insurance expansion.
Drafted by the NDP's sole Quebec MP, the motion to support the
primacy of French in Quebec for immigrants won unanimous approval
by voice vote, ensuring that no MP of any party had to go on record
(ref b). Consulate General contacts in both Montreal and Quebec
City view this ruling as the latest in a long history of court
battles over language issues in Quebec. Despite a brief flare of
media attention, this issue falls far short of more pressing
concerns in Quebec: the economy, H1N1, municipal elections, and
public corruption. Canadian Human Rights Commission contacts
emphasized privately to poloff that Section 23 of the Charter of
Rights and Freedoms was drafted primarily to protect the rights of
the French-speaking minority throughout Canada and that their
protections under federal law were "more critical" than the rights
of the English-speaking minority in Quebec.

7. (SBU) Comment: This Supreme Court decision will not turn the
tide against the protections nationally or provincially for French
as the official language of government, commerce, industry, and
education in Quebec. It emphasizes the strong federal commitment
to the status of Quebec as a fully francophone province, with the
constitutional right to block attempts to circumvent provincial
language laws. With the federal Liberals struggling to regain
support in Quebec, the NDP fighting to retain its one riding, and
the Conservatives seeing no benefit to angering Quebec any further,
there was little appetite among MPs to comment negatively on the
ruling. The decision will nonetheless force the Charest government
again to delve into language issues, a topic that can still inflame
passions on both sides, to draft a new law to maintain the status
quo. End comment.
JACOBSON

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