September 26, 2022

La Ronge Northerner

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40 Years of Judgment on Bill 101 | Authoritarian “Quebec rule”?

(Quebec) Quebec, a totalitarian state? Only a conspiracy theorist can say that these days. But under the sharp pen of the Chief Justice of the Supreme Court, such an assertion raises eyebrows.

Published at 8:00 am.

It’s been 40 years this week. On September 8, 1982, Justice Jules Descens declared unconstitutional the provisions of Bill 101, which reserved admission to the English-language school system in Quebec to children educated in that language. Exit “Quebec Rule”: Children whose parents did part of their education in English “in Canada” were eligible for English-language elementary and secondary schools.

“The invalidation of the Quebec rule was perceived as an attack on a fundamental, very sensitive, instructional language,” notes sociologist Jacques Beauchemin, an expert on linguistic issues. “At that point people realized it wasn’t good news,” Mr. Beaucemin recalled. Two years later, the Supreme Court upheld the Descens judgment.

Photo by Robert Skinner, Law Press Archives

Judge Jules Descens, in 1999

In December 1979, the Supreme Court’s Blaikie decision already invalidated the articles of Act 101, but it was about the courts’ language, interpretation of statutes, and more theoretical questions. Less concrete issues than the language of instruction have been at the center of linguistic controversies in Montreal for decades.

Judge Deschenes’s ruling drew astonishment, not so much for its orientation as for the incendiary tone adopted by the magistrate. This formulation sheds a harsh light on the evolution of sensitive, public discourse over four decades. Quebec argued that the “restriction” imposed would not constitute a “restriction” of the right conferred by section 23 of the now-adopted Canadian Charter. Above all, the advocates of the Levesque government insisted that collective rights should take precedence over individual rights.

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The response hit hard: “Quebec’s argument reflects a totalitarian view of society that cannot be accepted by the court. The human person is the greatest value we know, and nothing should act together to diminish that respect. Other societies place the community above the individual. They use the steamroller of kolkhozes and see merit only in the collective end,” wrote Judge Dessens.

In Canada, every individual in Quebec should fully enjoy their rights […] It cannot simply be regarded as an accidental waste of a collective action.

Excerpt from the judgment of Judge Jules Deschênes

“I am surprised and disappointed by the tone, which is unacceptable to a judge”, begins this week Guy Rocher, one of the architects of Law 101. A few years later, Mr. Rocher had gone to dinner with the now-retired judge. Former colleague at the University of Montreal. “I said to him: ‘You know me, you can’t believe I worked for a totalitarian group!’ Descens felt he had gone a bit too far,” Mr. Rocher recalled.

“A Sovereign Law”

Camille Laurin expected these provisions to be declared unconstitutional. But he wants to “create a sovereign law, not a provincial law,” observes Robert Fillion, a longtime and closest aide to Bill 101’s father. Despite the reluctance of some members, the Council of Ministers followed him. , Rodrigue Tremblay and especially Claude Morin, then responsible for international relations.

Photo by Armand Trottier, La Presse Archives

Camille Laurin, former Parti Québécois minister, in 1983

The debate on the “Quebec Clause” against the “Canada Clause” lasted for a month in the Council of Ministers. Lévesque “felt there was a big bone there, but Laurin was able to get public opinion,” Mr. Filion recalled. “Like a few, I find that some provisions are almost provocations and that it would be better to remove them immediately because they harm the integrity of the law,” says Claude Morin. « Jean-Roche Boivin [bras droit de René Lévesque] We were invited to express ourselves, and we did so with the tacit approval of Levesque, who, as a referee, cannot take too much of a position”, continues Morin.

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As Judge Jules Deschênes delivers his verdict, Laurin steps up. “This was the first revelation of the constitutional coup perpetrated by Ottawa,” recounts the late Jean-Claude Picard in his biography of the minister. The Canadian constitution was ratified in April 1982, and a few weeks later, Quebec’s lawyers found themselves arguing around Article 23 on education for linguistic minorities, which had yet to be tested by the courts.

Jean K., who headed the Quebec lawyers at the time. “It was the first charter case argued by Quebec,” recalls Samson. “First of all, how do you defend a law that is inconsistent with the Charter!”, he begins this week. Quebec decides to argue the “justification” of Quebec secession, looking to European law, invoking collective rights.

Mr. Samson was not surprised by the verdict or the tone adopted by Magistrate Descens.

We begged for days. He exploded as soon as he talked about collective ownership. He accused them of following the Soviet Union. His decision was predictable.

Jean K. Samson, about Judge Jules Descens

Act 96

Already at that time, M.e Julius Gray was a lawyer for those who opposed Bill 101. “Today, Bill 96 does not affect the issue of schools,” said Mr.e Gray, a sign in his opinion that the legislator was well advised. “The Quebec clause created barriers to movement between provinces,” the judge said. “Courts have made it possible to improve the law, and I am proud to have contributed to it,” he sums up.

Four decades have passed. A doctor in constitutional law, Frédéric Berard did his thesis on linguistic issues. In the debate on secularism, he was a staunch advocate of individual rights. But, according to him, it is different when the safety of the language is at stake. “I’m not a big fan of collective rights, but we must not forget that Quebec is a linguistic minority in a sea of ​​English speakers. It can adopt mechanisms to ensure its survival,” explains Mr. Bérard.

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The Quebec rule? Canadian rule? “We need to be calm, we are talking about 80 students per year who can enroll in the English-speaking sector in Quebec. That’s two high-level classes! “, Mr. Berard explains.