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DE RUEHOT #0854/01 3091446
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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