Canada 360 | 40 years since the repatriation of the Constitution: the unfinished promises of article 23

In 1984, a first francophone school opened its doors in Alberta. What seems commonplace today was at the time the result of the relentless efforts of parents fearing for the future of their children, demotivated by a school program that was poorly adapted to the needs of young people whose mother tongue was French. At that time, most Francophone parents were content with immersion school, not even imagining, after decades of assimilation and political invisibility, that there could be better.

Today, nearly 174,000 students attend 700 French-language schools outside Quebec across the country. A radical change, especially when we know how much the school plays a fundamental role in the construction of identity. And to what extent the reduction to almost nothing of Catholic and French-speaking schools at the turn of the XX^and century has affected the development of French Canadians.

This change is the Canadian Charter of Rights and Freedoms and its section 23, which was highlighted on the 40^and anniversary on April 17, who are partly responsible for it. I am writing in part because those who are truly responsible remain those who have fought in court, often at the sacrifice of their mental and physical health, to have the Charter and its section 23 respected by provincial governments reluctant to question Anglo-dominance.

The Constitutional Demands of Canadian Francophonies

Active in the constitutional debates that punctuated the 1970s and the beginning of the 1980s, Francophone minority communities were initially disappointed by patriation and the Charter.

Participating in constitutional activism when everything still seemed possible in the pre-repatriation years, the Fédération des francophones hors Québec (FFHQ) wanted a major constitutional overhaul giving life to a country that was fairer to francophones.

In 1979, she published the memoir “To no longer be without a country”, a cry from the heart of generations of stateless people who were tired of being “condemned to psychological exile” within their own country. The document calls for a break with British symbols, the transformation of the Senate into a House of equal federation between Francophones and Anglophones, recognition of cultural duality, institutional bilingualism in Ontario and Manitoba and an education system Francophone managed by the community served. Many of these requests will be ignored. Indeed, Prime Minister Pierre Trudeau did not want to recognize the collective rights of Francophones, for fear of balkanizing the country.

However, with section 23, which gave the right to elementary and secondary education to official language minority communities, Francophones in Canada had a new tool with which they had to familiarize themselves.

Section 23 and Substantive Equality

In fact, section 23 did not succeed in convincing the provinces to establish overnight a network of French-language schools of equivalent quality to that of the majority network. In communities worn down by repression, this new right seemed quite illusory.

Many Francophones no longer believed in education in French. They were afraid that by demanding these major transformations, they were going to alienate the provincial governments which already did not make much of their presence. Some feared the creation of French-speaking ghettos which would harm the inclusion of their children in society.

In Alberta, a group of parents called Groupe Bugnet wanted an educational revolution in French. This is how they fought all the way to the Supreme Court to assert their rights protected by article 23 and obtain the management of the schools, because without control by the French speakers, education still met the standards of the majority. In 1990, the Supreme Court rendered a historic judgment in this case, known as the Mahé case, deciding in favor of the parents. The judgment highlights the reparative nature of Article 23, which must counter the erosion of minorities and “redress the injustices of the past”.

Section 23 has become the symbol of a political awakening of Francophones in minority communities, who had to organize themselves, make their voices heard and deploy strategies to reclaim the education system and build it in their image. Obtaining school management was a gateway to increased political participation.

If section 23 has breathed new life into the Canadian Francophonies, it has not made it possible to achieve this much-desired real equality. By only protecting elementary and secondary education, it left gaping holes allowing assimilation to find its way into preschool and post-secondary education. The crisis in French-speaking universities in Canada, with the troubling case of Laurentian University, which failed in its duty to francophones by closing a myriad of programs essential to the vitality of communities, is just one example of the lack protection of Francophones in Canada.

The 40 years of the repatriation of the Constitution are a reminder of how distant the moment of constitutional effervescence of the years that preceded and followed it now seems. If the Charter was not the image of what the Francophone communities wanted, they learned to put it to their service. This same Charter imposed on Quebec without its agreement has become a lifeline for Francophone communities in minority settings. However, it created an artificial equality between the country’s French-speakers and Quebec’s English-speakers, not taking into consideration the unequal relations between the languages, which must now be repaired.