With the tabling in the House of Bill C-13 amending the Official Languages Actthe Trudeau government remains faithful to its promise to impose a shift in Canadian language policy set out in its March 2021 white paper1. The protection and promotion of French are now listed as explicit objectives. In principle, the symmetry between English and French is over, we finally recognize that it is French in Canada that needs additional protections, including in Quebec.
Posted at 10:00 a.m.
However, the announced shift remains unfinished on several levels, including the alignment in Quebec with Bill 101 for businesses under federal jurisdiction. Outside Quebec, the government is committed to implementing “strong measures” to stop the decline of French, including the increase in Francophone immigration, but the effectiveness of which can be doubted, without further changes.
Despite its highly suggestive abbreviated title – An Act to achieve substantive equality between the official languages… –, C-13 does not succeed in freeing himself from the legal principle of equal rights, a legacy of Trudeau Sr.; so much so that the promotion of French always comes up against the equal right to English, whether as a language of work or of service.
Section 23 of the Charter
Canada’s language policy does not stop at Official Languages Act. My subject here is section 23 of the Canadian Charter of Rights and Freedoms2 which defines minority language education rights; that is, English in Quebec and French in the other provinces. This section of the Charter, as we will see, limits the real capacity of the government to support the Francophonie outside Quebec.3.
The following are entitled to instruction in the minority language – therefore French outside Quebec – according to paragraph (1) of section 23: Canadian citizens a) whose first language learned and still understood is that of the minority; b) who received their primary education in Canada in the minority language. Clause (a) does not apply in Quebec so as not to conflict with Bill 101, but also to ensure that children of French-speaking parents outside Quebec who did not receive their primary education in French are not penalized. , legacy of the sad history of French schools outside Quebec before the coming into force of the Charter.
The reader will have recognized the relationship of clause (b) with Quebec Law 101. In other provinces, immigrants and Anglophones are not allowed to enroll their children in French schools, just as immigrants and Francophones in Quebec are not allowed to enroll their children in English school. Free choice in school matters does not exist outside Quebec, contrary to a certain widespread perception in English Canada. If Bill 101 is “discriminatory”, so is the Canadian Charter.
This symmetrical “discrimination” is the counterpart of the principle of legal equality, transposed here to the two linguistic minorities. However, the two languages are not equal, we know, neither by the number of speakers nor by their power of attraction.
We are faced with a classic case of Aristotle’s famous maxim: “The greatest injustice is to treat unequal things equally.” »
We then find ourselves, 40 years after the adoption of the Charter, faced with the absurd situation where it is de facto an obstacle to the government’s objective of strengthening the Francophonie outside Quebec. Counting on French-speaking immigration to reinforce it is in direct contradiction with clauses a) and b) of article 23. Outside Quebec, French-speaking immigrants will not have the right to enroll their children in French school. . Upon arrival, their little ones will go to English school, in accordance with article 23. A few French-language school boards outside Quebec have managed, discreetly, to circumvent the law (British Columbia, for example; but this only highlight the absurdity of the current situation.
The perverse effects of this artificial symmetry do not stop there. It unnecessarily opposes francophones outside Quebec and those from Quebec, I am not the first to deplore this. The government of Quebec finds itself in the equally absurd situation of pleading before the courts against French-language school boards outside Quebec (Yukon Francophone School Board, Education Area #23 v. Yukon, an example), for fear of seeing the boards anglophone schools in Quebec to claim the same rights. This brings us to the final absurdity: the impossibility of reforming Article 23.
An embarrassing symmetry
However, the solution is simple: for French-language school boards outside Quebec, it would suffice to open clause a) to all permanent residents and to open clause b) to primary education received in French, regardless of the country. But, symmetry obliges, English-language school boards in Quebec will, of course, ask for the same right; namely, the right to welcome English-speaking immigrants, a request to which Quebec will inevitably respond with a plea of non-receipt. Here we are in front of what the English call a beautiful Catch-22, a dead end.
By introducing the concept of substantive equality, Bill C-13 valiantly attempts to circumvent the (embarrassing) legacy of linguistic symmetry, while at the same time inviting the courts to give it a liberal interpretation, which is to be applauded. However, the school question is not within its competence; nothing says that the instruction (of a liberal interpretation) does not also apply to article 23.
It still lacks, in addition, a clear definition of the concept (of which, curiously, the English translation is substantive equality, less strong) ; so that the English-speaking minority will be able to continue to cry foul, not without reason, under the principle of equal rights, each time the federal government wishes to grant more resources or otherwise help a French-speaking minority outside Quebec . We are back at Catch-22.
The real capacity of the Canadian government to come to the aid of the French-speaking minorities will remain limited as long as the inequality of the two linguistic minorities is not formally recognized and enshrined in corresponding legislation. This is not to reduce the rights of the English-speaking minority in Quebec, but to recognize that the needs of French-speaking minorities are different.
Their fight is not of the same order. Real equality will be achieved the day when the two official languages of Canada – and therefore also the two minorities – will be equal in their power to retain (of the mother tongue between generations) and to attract populations of other languages. We are far from the goal.