The legal dispute over Quebec's language policy began soon after the enactment of Bill 101, establishing the Charter of the French Language, by the Parliament of Quebec in 1977. The Charter, enacted under the Parti Québécois government of René Lévesque, expanded upon Quebec's previous language legislation, Bill 22, also known as the Official Language Act, enacted in 1974 under the Liberal Party of Quebec government of Robert Bourassa. Earlier language legislation in Quebec had included An Act to promote the French language in Quebec in 1969, and the La Vergne Law of 1910. Both statutes were drafted in an attempt to follow the recommendations of the Commission of Inquiry on the Situation of the French Language and Linguistic Rights in Quebec (the Gendron Commission). Unlike the (Quebec) Official Language Act of 1974 (not to be confused with the federal Official Languages Act), the Charter of the French Language is a legal framework defining the linguistic rights of Quebecers, and a language management policy giving the Government of Quebec the power to intervene in many sectors of public life to promote French as the common language of all citizens. Its enactment sparked a legal battle that still goes on today.
Before 1982 In 1867, the British Parliament passed the British North America Act 1867, now known as the Constitution Act, 1867, which became the supreme law of the Dominion of Canada (although it was modified several times, it is still part of the Constitution of Canada). This act contains only one section (section 133) dealing with language. It reads:
"Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec." "The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages."
Language of legislation and justice
Three Quebec Lawyers, Peter Blaikie, Roland Durand and Yoine Goldstein first challenged the constitutionality of the Charter of the French Language under section 133. In 1979, the Supreme Court of Canada declared Chapter III of the Charter of the French Language unconstitutional, citing it contrary to section 133 of the British North America Act 1867. The highest court in Canada judged that the enacting and passing of laws had to be done in both French and English in the parliaments of Quebec and Canada. Sections 7 to 13 of the Charter of the French Language had made French the only language of legislation and only provided for a translation of laws in English at the end of the legislative process. The Quebec government responded by re-enacting the charter (and all other acts enacted since 1977) in French and English. Sections 7 to 13 of the charter were however left untouched. In 1981, another Supreme Court decision (Quebec (Attorney General) v. Blaikie (No. 2)) declared that section 133 also applied to government regulations.
After 1982 The patriation of the Canadian Constitution occurred as the British Parliament passed the Canada Act 1982. This act enacted the Constitution Act, 1982 for Canada (including the Canadian Charter of Rights and Freedoms), which has two provisions which have provided the basis for further constitutional disputes concerning Quebec's Charter of the French Language. Section 2 of the Charter guarantees freedom of expression, which opens the door to challenges to laws which restrict an individual's ability to use a particular language, while section 23 introduced the notion of "minority language education rights". Alliance Quebec, an Anglophone rights lobby group was founded in May 1982. It is through this civil association that various anglophone lawyers challenged the constitutionality of Quebec's territorial language policy.
Language of instruction
Quebec (A.G.) v. Quebec Protestant School Boards In 1984, the Supreme Court invalidated Chapter VIII of the Quebec Charter of the French Language on the basis of its incompatibility with section 23 of the Canadian Charter of Rights and Freedoms. Section 23 of the Canadian Charter reads:
Section 73 of the Charter of the French language had recognized the right to English language instruction to Quebec residents alone. Canadian citizens from outside Quebec are forced to send their children to French primary and secondary schools, in direct violation of S26.(3) of the UN Declaration of Human Rights, which states that "Parents have a prior right to choose the kind of education that shall be given to their children. On July 26, 1984, the Supreme Court invalidated part of Section 73. Judged retroactively unconstitutional, the section had to be modified so that it no longer clashes with the Canadian charter's definition of a linguistic minority. The current Section 73 of the Charter of the French language reads:
The following children, at the request of one of their parents, may receive instruction in English: In 2005, a Supreme Court ruling upheld Section 73 of the Charter of the French language and its corresponding subsections (1 through 5). See Maclean's 5 April 2005, an article by John Geddes entitled "Tweaking the Language Laws". It maintains that the court upheld S.73 yet provided for flexibility in matters dealing with English-speaking Canadians and immigrants from other countries.
Bill 104
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