The Supreme Court of Canada ruled this morning that certain sections of Quebec’s Bill 104 are not valid. The law intended to prevent parents and students who were circumventing the law to meet the requirements for attending subsidized English language schools in Quebec. The court decided unanimously that although this circumvention is a concern, this law is an “excessive” solution that violates the rights of Canadians under the Charter of Rights and Freedoms.
“The legislature could have adopted different solutions that would involve a more limited impairment of the guaranteed rights…” (Paragraph 43)
The Supreme Court has given the Quebec legislature one year to amend the legislation and devise alternative solutions to close this loop hole that do not limit the freedoms of some citizens. Bill 104 was introduced into law in 2002. The Quebec Court of Appeal ruled on August 22, 2007 and referred the matter to the Supreme Court of Canada.
Parts of the law that must be revised (Paragraphs 2 and 3 of Section 73)
However, instruction in English received in Québec in a private educational institution not accredited for the purposes of subsidies by the child for whom the request is made, or by a brother or sister of the child, shall be disregarded. The same applies to instruction in English received in Québec in such an institution after 1 October 2002 by the father or mother of the child. However, instruction in English received in Québec in a private educational institution not accredited for the purposes of subsidies by the child for whom the request is made, or by a brother or sister of the child, shall be disregarded. The same applies to instruction in English received in Québec in such an institution after 1 October 2002 by the father or mother of the child.
Instruction in English received pursuant to a special authorization under section 81, 85 or 85.1 shall also be disregarded.
The impact on private education in Quebec
One of the purposes for Bill 104 was to prevent parents from sending their children to an English non-subsidized private school for as little as one year to then qualify the student for subsidized English language study. Some non-subsidized private schools would have a large Grade 1 class or classes that would then shrink dramatically in Grade 2. This bill modified section 73 of Bill 101—The Charter of the French Language—that makes exceptions to the rule that all Quebec students must be educated primarily in French.
However, students learning at an English-language private school in elementary school (non-subsidized) were not able to continue their studies in English as they entered secondary school; their non-subsidized education would not qualify them. Since many English-language private schools in Quebec receive provincial government funding for secondary school, students were not able to continue their studies in English, even though many were continuing their education at the same private school.
