40 years of the judgment on Bill 101 | The totalitarian “Quebec clause”?

(Quebec) Quebec, a totalitarian state? Nowadays, only a conspirator could say such things. But under the sharp pen of a chief justice of the Superior Court, such an assertion arouses surprise.

It’s been 40 years this week. On September 8, 1982, Judge Jules Deschênes declared unconstitutional the provisions of Bill 101 which reserved admission to the English-language school system to children whose parents had studied in that language in Quebec. Exit the “Quebec clause”: children whose parents had done part of their studies in English “in Canada” became eligible for English-language primary and secondary schools.

“The invalidation of the Quebec clause was felt as an attack on something fundamental, very sensitive, the language of instruction,” observes sociologist Jacques Beauchemin, a specialist in linguistic issues. “The population at the time sensed that it was not good news,” remembers Mr. Beauchemin. Two years later, the Supreme Court upheld the Deschênes judgment.

As early as December 1979, the Blaikie judgment of the Supreme Court had already invalidated articles of Law 101, but it concerned the language of the courts, the translation of laws, more theoretical questions. Issues less tangible than the language of instruction, for decades at the center of linguistic disputes in Montreal.

The verdict of Judge Deschênes had aroused astonishment, not so much for its orientation as for the incendiary tone adopted by the magistrate. The formulation casts a harsh light on the evolution of sensitivities, of public discourse, in four decades. Quebec argued that the “restriction” imposed did not constitute a “prohibition” of the right provided for in section 23 of the Canadian Charter which had just been adopted. Above all, lawyers for the Lévesque government emphasized that collective rights should take precedence over individual rights.

The reply was hard-hitting: “Quebec’s argument reflects a totalitarian conception of society that the court cannot agree with. The human person is the greatest value we know and nothing should work together to diminish the respect due to it. Other societies place the community above the individual. They use the steamroller of the kolkhoz and only see merit in the collective result,” wrote Judge Deschênes.

“This tone had surprised and disappointed me, it was unacceptable from a judge”, launches 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, a former colleague from the University of Montreal. “I told him: ‘You know me, you can’t believe I worked for a totalitarian group!’ Deschênes had recognized that he had probably gone a bit too far,” recalls Mr. Rocher.

“A sovereignist law”

Camille Laurin probably expected these provisions to be declared unconstitutional. But he had opted to “make a sovereignist law, not a provincial law”, observes Robert Filion, a long-time very close collaborator of the father of Bill 101. The Council of Ministers had followed him, despite the reluctance expressed by some members, Rodrigue Tremblay and especially Claude Morin, then responsible for international relations.

The debate on the “Quebec clause” against the “Canada clause” had lasted a month in the Council of Ministers. Lévesque felt “that there was a big bone there, but Laurin had managed to get public opinion,” recalls Mr. Filion. “Like a few others, I found that certain provisions were almost provocations and that it was better to remove them immediately because that would harm the whole of the law,” says Claude Morin. « Jean-Roch Boivin [bras droit de René Lévesque] invited us to express ourselves, we did so with the tacit consent of Lévesque who, as an arbitrator, could not take a position too much”, continues Morin.

When Judge Jules Deschênes hands down his judgment, Laurin steps up. “This is the first manifestation of the constitutional coup perpetrated by Ottawa,” recounts the late Jean-Claude Picard in his biography of the minister. The Canadian Constitution had been ratified in April 1982, and only a few weeks later, the lawyers of Quebec find themselves pleading around a text, article 23 on education for linguistic minorities, which has not yet undergone the test of the courts.

“This is the first charter case pleaded by Quebec,” recalls Jean K. Samson, who headed the Quebec lawyers at the time. “How do you manage to defend a law which, a priori, does not comply with the Charter! “, he launches this week. Quebec decides to plead the “reasonableness” of the Quebec clause, looks at European law, evokes collective rights.

Mr. Samson was surprised neither by the verdict nor by the tone adopted by magistrate Deschênes.

Law 96

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

Four decades have passed. A doctor in constitutional law, Frédéric Bérard did his thesis on linguistic issues. In the debate on secularism, he will be a vehement advocate of individual rights. But, according to him, it is different when the defense of the language is at stake. “I am not a big fan of collective rights, but we must not forget that Quebec is necessarily a linguistic minority in an English-speaking ocean, that it can adopt means to ensure its survival,” explains Mr. Bérard.

Quebec Clause? Canada Clause? “We must remain calm, we are talking about about 80 students per year who can enroll in the English-speaking sector in Quebec. That’s two high school classes! “, illustrates Mr. Bérard.