21 hours ago
Libman: On death, taxes and the future of minority rights in Quebec
Benjamin Franklin famously wrote: 'In this world nothing can be certain, except death and taxes.'
Section 23 of the Canadian Charter of Rights and Freedoms, however, comes pretty close. It is the ironclad constitutional protection of minority-language education rights in this country. It has consistently been interpreted by Quebec courts to uphold the right of the English-speaking minority to control and manage its school system. And it's exempt from the application of the notwithstanding clause.
After the Coalition Avenir Québec government adopted Bill 40 in 2020, abolishing and replacing school boards with service centres under greater government control, the province's English boards challenged the law as unconstitutional.
In 2023 Quebec Superior Court Judge Sylvain Lussier agreed, ruling in no uncertain terms that much of Bill 40 infringes on the English-speaking community's constitutional rights to govern and control its educational institutions.
The CAQ government, however, appealed the judgment.
In April of this year, Quebec Court of Appeal judges Robert Mainville, Christine Baudouin and Judith Harvie handed down their ruling. They also concluded that parts of Bill 40 infringe on the section of the Charter of Rights that guarantees minority-language education rights and couldn't be demonstrably justified as a reasonable limit on charter rights in a free and democratic society.
Another slam dunk for minority education rights.
Yet this week, the Legault government went ahead anyways to request leave to appeal this judgment by Quebec's highest court to the Supreme Court of Canada. The irony here shouldn't be lost: Quebec's nationalist government is asking Canada's highest court to overturn rulings from the two Quebec courts.
I have little doubt Quebec's lawyers have advised the government they cannot possibly win this case at the Supreme Court. This appeal seems purely political. No one would expect the CAQ to dare show any surrender in assailing minority language rights at the risk of giving a drumstick to their more nationalist rivals, the separatist Parti Québécois.
The Supreme Court should refuse to hear the appeal considering how categorically the two Quebec courts unanimously ruled in what seems an open-and-shut case. For several reasons, the ideal scenario would be for the Supreme Court to say the Quebec courts composed of Lussier, Mainville, Baudouin and Harvie have already made an irreproachable decision. Case closed.
This, in fact, could even benefit the CAQ (which they might be secretly hoping for) because if the Supreme Court does take the case and inevitably invalidates sections of the law sometime next year, around Quebec election time, it would help provide ripe fodder for the PQ to condemn Canada for 'again' crushing Quebec's aspirations and ignoring its 'distinctiveness' — while conveniently glossing over the fact that Quebec francophone judges had also unanimously struck it down.
But watch out for another concern. Within days of the appeal court's ruling, coincidentally or not, Quebec Justice Minister Simon Jolin-Barrette announced his intention to launch negotiations with Ottawa about amending the Constitution so that Quebec judges are chosen from among members of the Quebec Bar, recommended by the Quebec government. Currently, superior and appeal court judges are appointed by the federal government.
Judges in this country act as a check and balance for government legislation, if challenged. They are impartial arbiters, interpreting the charters of rights to balance individual or minority rights against political objectives. In Quebec, where an important linguistic minority relies on constitutional protections, the courts are their only redress at times, often against the backdrop of a highly charged language environment. We need only look across the border at the U.S. to see what can happen when the court system becomes politicized.
If certain Quebec governments started to exert influence on the courts by appointing judges known for favouring collective rights over individual rights, or harbouring secessionist sympathies, for example, the last vestiges of protection for minority communities, including the certainty of Section 23, could vanish.
