Constitutionality of Bill 104 in Québec: Will the Loophole Remain Closed Forever?
November 13, 2008
Natasha Dubé
On December 15, 2008, the Supreme Court of Canada will hear two cases from Québec debating the constitutionality of Bill 104 [1] in that province. Bill 104 has the effect of blocking children who attend English private schools from transferring to English public schools.[2] Under the Canadian Charter of Rights and Freedoms,[3] children who have attended English schools anywhere in Canada, as well as their siblings, have the right to attend English schools in Québec. Both cases were decided on the side of the provincial government at the lower court level, but won by the parents at the Court of Appeal, where Bill 104 was struck down as it was inconsistent with the Charter.[4] The newly reintroduced Federal Court Challenges Program will provide $70,000 to fund these SCC appeals.[5]
In 2002, the Parti Québécois government adopted Bill 104 to close a loophole that was commonly used by Anglophones. Prior to this amendment, “children who were otherwise ineligible to attend English school under the terms of the French Language Charter, Bill 101,[6] could become eligible to attend English public schools after spending at least a year in an unsubsidized English-language private school.” English schools have suffered since then: for example, more than 450 students a year are removed from schools governed by the English Montreal School Board. The provincial government had become increasingly aware that many schools marketed themselves as a one-year unsubsidized pit stop before they could move on to a subsidized school, usually in the public sector.
Many English private schools receive government money at the high school level. Under Bill 101, ineligible students are not allowed to attend English schools which receive such stipends. Unlike its high school counterparts, most English elementary private schools do not receive such money from the government, therefore ineligible students under Bill 101 are allowed to attend, but then have no where to go for high school.[7] According to Brent Tyler, lawyer for the parents in these cases, 30 percent of children “enrolled in the primary programs of these schools now will not be able to continue in the same schools in Bill 104 is upheld by the Supreme Court”. By hearing the two cases on December 15, it is hoped that a decision can be made in time for the 2009 winter semester.[8]
[3]Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [Charter], http://www.canlii.ca/en/ca/const/const1982.html.