The announcement by Prime Minister François Legault on September 8 that the Quebec government will appeal a recent decision of the Superior Court favorable to the constitutional rights of the English-speaking community in matters of education underlines, once again, the continued betrayal of a solemn promise that Quebec made to the community in 1997.
When Quebec undertook, in 1997, to transform denominational school boards into linguistic boards, it had to persuade Ottawa to accept the necessary bilateral amendment to section 93 of the British North America Act. The sticking point was the English-speaking community. She feared losing her acquired rights with the change.
But after the Minister of Education, Pauline Marois, had publicly given assurances that “the community” would not lose its rights to “mastery and control of its schools,” and after these assurances had been placed in a resolution adopted by the National Assembly, the anglophones sided with the Bouchard government.
But Quebec went back on its word — first with Bill 86, tabled by the Couillard government in 2015, but quickly withdrawn; and more recently, with Bill 40 from the Legault government, adopted at the beginning of 2020.
On August 2, Superior Court Judge Sylvain Lussier declared many provisions of Bill 40 unconstitutional, including its restrictive electoral rules for the English-speaking sector. Lussier also cited Quebec’s broken promise as a factor in his decision.
The judge declared: “The government of Quebec has rallied the majority of Anglophones and Protestants to this project by guaranteeing them the maintenance of the power of management and control of their educational institutions… This commitment to maintain the management and control of the institutions by the minority must first guide the interpretation of article 23 to the situation. »
Bill 40 abolished school boards (for both French and English speakers) and replaced them with school service centers closely controlled by the Ministry of Education. He also abolished elections in the French-speaking sector. But in an attempt to satisfy article 23, which concerns the rights of official language minorities in education, the Legault government maintained the elections in the English-speaking sector. However, the new electoral rules remove the right of more than half of the so-called historic English-speaking community to stand for election to the boards of directors of the new school service centers, as well as 99 percent of all parents of children. currently registered.
Anglophones would never have supported the constitutional change of 1997 if they had known at that time that Quebec was going to reduce its capacity to manage its own schools. While section 23 rightly has a “restorative” purpose outside of Quebec to redress past injustices against French-speaking communities in education, in Quebec, Lussier said, it should have a “preventive” role » protection against the erosion of rights.
Lussier was ruling on a challenge to Bill 40 brought before the courts by a group of plaintiffs led by the Quebec English School Boards Association, which brings together the nine English-speaking school boards in Quebec. The plaintiffs obtained a stay of implementation of the law in the English-speaking sector, confirmed by the Quebec Court of Appeal at the end of 2020, pending the conclusion of the legal challenge.
Under the British North America Act, the provinces have jurisdiction over education. However, the courts have determined that official language minority communities under section 23 have a measure of “management and control” over “how” to respect the standards and objectives established by the provinces, as well as over ” who” in their communities should have the right to oversee the “how”. That’s all section 23 does. It does not give Anglophones a veto over provincial policies. And the right to manage your own schools poses no threat to French in Quebec.
Outside of Quebec, several provinces concluded that school boards had lost their relevance and began to abolish them. Yukon, Prince Edward Island and Nova Scotia have all abolished their school boards — but only for their majority English-speaking populations. To respect article 23, they kept the school boards for their French-speaking minorities intact.
With the decision to appeal the Lussier judgment rather than sit down with the English-speaking community and agree on the terms, Quebec is doubling its efforts on what seems to me to be a dangerous political path. Because section 23, unlike certain parts of the Charter of Rights, cannot be canceled by the notwithstanding clause. If Quebec does not honor its 1997 commitment to Anglophones and persists in trampling on Article 23 like the hillbillies of Brockville, Ontario, wiped their feet on the Quebec flag during the debate on the Meech Lake, then we are heading towards real political problems in Canada.