Premier Jean Charest's government has taken a small and temporary step back toward common sense on language of education with Bill 115, introduced yesterday and destined for quick passage by the Liberal majority. This bill is, in itself, less ill-considered and less damaging than Bill 103, which it replaces. The bad news: The troubling parts stripped out of Bill 103 will be back.
Having drifted on this issue until it came up against a deadline the Supreme Court of Canada imposed a year ago, the government had left itself only until Friday to replace Bill 104, a PQ-government restriction that the high court struck down last fall.
Until yesterday, the Liberals were ready, with Bill 103, to slip through even more restrictions on school choice than the PQ ever imposed. But among other deletions from Bill 103, Bill 115 abruptly drops a dangerous re-writing of part of the Quebec Charter of Human Rights and Freedoms.
Good riddance. Bill 103 would have changed the Charter to give primacy to the protection of French: "Any interpretation of the rights and freedoms set out in this Charter must take into account both the fact that French is the official language of Quebec and the importance of ensuring its perpetuity." In other words individual rights would be subordinated to the supremacy of French.
This utterly perverts the prime purpose - and common understanding -of charters of rights in general. Like other so-called "collective rights," this provision would not protect an individual from the power of the state; instead it gives the state more power to impose its will.
For now that plan has been withdrawn. However, the government apparently feared that short debate and closure would get the new Charter provision off on the wrong foot; we can expect at least the same "protection of French" changes to the Quebec Charter to come back before long.
As for the original issue of school choice, Bill 115 is the same ham-handed bullying overreaction as Bill 103. True, a trickle of students, mostly allophone but some francophone or immigrant anglophone, have been slipping into English-language schools by spending one year in fully-private English schools.
That approach was not outlawed when Bill 101, the Charter of the French Language, was first enacted, but the rigour of Camille Lauren has proved insufficient for Jean Charest. Pandering to hard-line francophone opinion is more important to him than mere details such as what parents want for their children.
The bill allows bureaucrats to decide, in many borderline cases, which students are eligible for English schooling. We're told that even an experienced lawyer finds the draft regulations dauntingly complex. No wonder: Last spring Michelle Courchesne, then education minister, told our columnist Don Macpherson candidly that "the objective is to have as few as possible (approved)."
But how do that goal, and that thicket of regulations, live up to what the Supreme Court required in Nguyen v. Quebec last year? Would Bill 115 be upheld or struck down by the Supreme Court? The way to find out, normally, would be for some principled, prosperous, patient parent to challenge the new law, and wait years for the case to percolate through the courts.
There may however be another way. In theory, at least, we understand, anyone who was a party to the case settled last year can ask the Supremes directly for a "reference" decision. There's zero chance Quebec would do that, but the parties last year included not only the parents who brought the case but also several intervenors, notably the Quebec English School Boards Association, the Quebec Association of Independent Schools, the Quebec Provincial Association of Teachers, and the federal Commissioner of Official Languages.
If detailed legal analysis casts doubt on the legitimacy of this mean-spirited bill, then one or more of the parties should speedily send the question straight to the Supreme Court. It is possible to fight back against bullies.