On Monday, Canada's minority-language communities will once again have to defend themselves before the Supreme Court of Canada.
The question this time is access to English public schooling in Quebec, but the real scope will be the very place and future within our confederation of English-speaking Quebecers and French Canadians in the rest of Canada. All Canadians should be interested to know that their national government will be arguing alongside the government of Quebec against an open and generous interpretation of the Constitution it is elected to defend.
Whatever the court's decision, this is unfortunate news, indeed. This case involves Quebec's six-year-old Bill 104, which added further restrictions to Quebec's Charter of the French Language by eliminating the right of parents to gain access to English public schools for their children by first enrolling them in private, unsubsidized English schools. Quebec will argue, contrary to the ruling of Quebec's Court of Appeal, that the law is perfectly constitutional, in fact, essential if Quebec is to preserve its French language and culture.
The federal government will agree, and go farther.
It will argue that the implementation of minority linguistic educational rights should be left to provincial discretion. If this argument were accepted, it would mean that Quebec or other provinces could be given almost free rein to restrict English and French minority schooling in their jurisdictions. It might also mean that provinces within their sphere of activity could constrain minority rights generally.
Canada's Charter of Rights and Freedoms, at section 23 (2) states: "Citizens of Canada of whom any child has received or is receiving primary or secondary-school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language." Notwithstanding those words - upon which are set the foundations of English public schooling in Quebec and French schooling in the rest of the country - the Harper government will argue that the further restrictions to English education imposed by Bill 104 are not only constitutionally feasible but demonstrably necessary. It will argue, in perfect harmony with the harshest opponents of linguistic duality, that there are only winners and losers in language matters in Canada. It will argue that compromise doesn't work - pretty surprising for the national government of our country.
Section 23 of our Charter of Rights and Freedoms was framed by legislators and successively shaped by Canada's courts to facilitate the vitality and development of minority-language communities across the country, under a complex but increasingly solid compromise between collective rights of the linguistic minority and majority in each part of the country.
In Quebec, this compromise is, of course, rendered more challenging by the fundamental and recognized need to protect and promote the predominance of French. Court decisions have properly recognized the need to balance these two imperatives.
I would have expected Canada's government to safeguard that essential compromise. Instead, the federal government will argue in favour of dismantling it.
English-speaking Quebecers have an obligation to respect and contribute to the stability and vitality of French Quebec. They do, increasingly, by becoming more bilingual, by participating in the cultural, social and community fabric of Quebec - and, most significantly, by operating an English public-school system that places an unconditional priority on teaching French.
In other words, the existence of healthy and stable English public schools in Quebec is, in many ways, the very positive manifestation of the compromise discussed above. These schools are, quite definitely, contributing to the stability and vitality of French Quebec. Still, Canada's government will send its lawyers to court to echo that increasingly tired tune that few French Quebecers are playing anymore, the one that chants that the sky is falling on French Quebec - and that it's English-speaking Quebec's fault.
If Bill 104 is overturned by the Supreme Court, as it should be, a pool of 400 to 500 additional students might then be permitted to register for English public schools across Quebec. That would be an important source of replenishment for an English public school system that has gone from a quarter-million students to 110,000 in a single generation. And the consequent impact on French schooling in Quebec would be in the order of minus 0.5 per cent each year. That sounds like fair compromise.
While the facts in this case address most directly the English-speaking communities of Quebec, they have echoes for francophone minority-language communities across the country. Make no mistake that other provincial and territorial governments will be paying close attention.
English-speaking Quebecers have some fairly recent experience in playing the unsolicited and uneasy role of the canary in the mineshaft. From our perspective on this case, we can tell you that the air is getting a little stagnant - and it's most clearly due to a dwindling source of oxygen from Ottawa. Canadians in every part of the country should take heed.
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Debbie Horrocks is president of the Quebec English School Boards Association