The CBC reports that PQ culture critic Pierre Curzi is calling on the Quebec government to invoke the notwithstanding clause. The Parti Québécois is urging the Quebec government to use the ‘notwithstanding clause’ to limit access to private English schools after the Supreme Court quashed Bill 104, part of the province’s language legislation.

Bill 104 had closed a loophole allowing children not eligible for the English-language public school system to gain access by first spending time in a private English school. Rights in the constitution guarantee the right of tuition free attendance at English publicly financed schools if children’s parents have received most of their education in Canadian English schools or the children have had an English language education.

But the Supreme Court struck down Bill 104 in a ruling recently. It said in its decision that Bill 104’s purposes were acceptable in that the parents involved were exploiting an administrative loophole, However it said that the approach to closing the loophole should have been different. Rather than setting a general rule blocking the right of continuing attendance at English publicly financed schools if a student attend a private English school solely to gain admittance to the English public system, the Court said the government should rule on a case by case basis for each school and each student based on their motives for operating or attending the school.

I wrote a few days ago that the Supreme Court was in error in its ruling. (see http://www.policycentre.ca/2009/10/27/934/). The Court should not tell provinces how to administer education policy that is justified. This is meddling in administrative policy which is well beyond the competence of the Court. The solution that the Court suggests is an administrative nightmare and frankly stupid. Bill 104 is a much better approach and should have been left alone.

It is hard not to be sympathetic to the PQ case. If the Court insists on this kind of activist stance, resulting in silly interventions in policy, it may be time for governments to use the clause, as much as it is disliked. This might have a sobering affect on the Supreme Court when it is tempted to step into policy matters beyond its competence.

Last week, Canada’s Supreme Court struck down Bill 104, a Quebec law that clarified the status of immigrants and non-English speaking children who attend early grade English language schools. There was understandable disappointment and anger from Quebec politicians.  The unanimous Supreme Court ruling called Bill 104 “excessive”, saying it unjustifiably infringed on minority language rights under the Canadian Charter of Rights and Freedom.  In fact the decision itself infringes on the legitimate role of government.  The government’s policy was perfectly consistent with the Constitution, which guarantees children from English speaking families or who have attended English speaking schools the right to go to English speaking publicly financed schools throughout their schooling.

Bill 104 was passed in to 2002 close a loophole that some non-English educated families had been using to get their very young children into an English language school and thus “earn” the right to attend publicly funded English language schools.  The right belongs to the English speaking minority in Quebec, and not to those who attend private English schools set up to provide non-English speaking children their first year of school solely in order to qualify them for publicly funded English language schooling for the remainder of their education.

Before Bill 104 was passed in 2002, students not eligible for English language schooling  were enrolling in these private English language elementary schools for up to a year solely to  become eligible to transfer to a publicly funded English language school.   Once the child qualified for a public English language school, the same qualification was transferred to his or her siblings.  Private schools were set up solely for the purpose of getting this kind of bogus qualification.

This was never intended or contemplated when the provisions of the constitution were passed.  And logically enough the Supreme Court agreed that the ability to make such a transfer can be interfered in these circumstances.   Such an interference is a legitimate and justifiable infringement of the right to attend English schools, since these schools there simply to create a loophole.  Preventing the exploitation of this loophole, the court agreed, is sufficiently important and legitimate to justify the government’s infringement of a generally guaranteed right.

It stated in its decision: “When schools are established primarily to bring about the transfer of ineligible students to the publicly funded English‑language system, and the instruction they give in fact serves that end, it cannot be said that the resulting educational pathway is genuine.  A short period of attendance at a minority language school is not indicative of a genuine commitment and cannot on its own be enough for a child’s parent to obtain the status of a rights holder under the Canadian Charter.”

However, according to the court, the Quebec Government failed to calibrate the policy in the correct way.  The judges said that rather than setting an administrative rule, “it is necessary to review the situation of each institution (school), as well as the nature of its clientele and the conduct of individual clients”.

This is ridiculous.  It should not be up the courts to decide how much bureaucracy is needed to make a legitimate policy workable.  It should be up to the legislature of the province to decide policy details of this sort. If  the government judges that generally applicable rules are preferable, as opposed to a case by case review of each school and student, that should be its choice.  The courts should leave these matters to legitimate policy makers who know something about the running of schools.  If they do not, they are guilty as charged, of taking on the role of administrative policy makers and thus of judicial activism.

There have been many nonsense complaints about judicial activism since 1982.  When the courts direct legislators to correct laws inconsistent with the 1982 constitution, they are doing their job.  In this case the court has taken on a different role – it has substituted its policy for the legitimate policy of the legislature and the government.  This kind of interference just adds to unnecessary tension and conflict.   The law will have to be re-written, with lots of political turmoil in Quebec, for nothing but trivial reasons. Nobody will be happy.  Please justices, exercise a little restraint.  Let governments do their job, and you do yours.