POLI 324 Lecture Notes - Lecture 12: Charter Of The French Language, Justin Trudeau, Normal Route
15 Jun 2018
School
Department
Course
Professor
November 29th
POLI324
Research Issue
• The policy impact of judicial invalidation of The Charter of the French Language by the Supreme
Court of Canada, whether government actually comply with judicial decisions.
• Successfully challenged as violating the Canadian Charter of Rights and Freedoms in 5
landmark judgments, 1984 to 2010.
• Test Matthe Halls popositio:
• courts are implementer-dependent institutions when ruling on a lateral issue (decision
implemented by non-judicial actors).
Matthew K. Hall, The Nature of Supreme Court Power. Cambridge: Cambridge University Press, 2011.
Laforest is arguing that there is a tension between judicial review federalism and provincial autonomy.
There is evidence for Laforest position, when he talks about feeling in exile with his own country. What
laforest mean by that is that he argues that Canadian federalism was about a compromise to allow
French Canadians autonomy over their areas jurisdictional responsible for their cultural survival. For
laforest that bargain endures until 1982. There are strong evidence to support Laforest position. Of any
province Quebec has suffered the most invalidation under the charter of rights. They all involve bill 101,
which is a significant statute. The second evidence is that there is a clear remedial intention in the
Canadian bill of rights as it relates to the provinces of Quebec, what I mean here is section 23. The
hates ioity laguage eduatio ight. Thee is a lea faes itet as elates to setio to
reverse parts of bill 101. The Trudeau liberal decided on a two part strategy (laforest argument), the first
is that they actually considered using the power of resolution and disallowance, created a program as
the challenging program which was created by Pierre Trudeau, it was canceled by Mulroney, it was
reinstated by Chretien was canceled by Harper, and it was reinstated by Justin Trudeau.
So lets see what the courts challenging program is: the courts challenging program is a federal program
that provides funding for interests groups to challenge government in courts. So the program under the
Pierre Trudeau government was used to challenge, challenges against Bill 101. It was unlikely to succeed
b/c bill 101 is clearly under the provincial abilities under section 92 the chances of it being declared
unconstitutional is quite small. What section 23 does is nationalize a provincial area of responsibilities
(Laforest argues)
Kellys argument of Laforest argument is that he focuses too much on judicial decision, and not evaluate
the legislative responses. The second thing is the popularity of the judicial ruling.
Courts as Policy Actors
• Judicial Impact dependent on two factors:
1. Type of policy reviewed by courts:
vertical – implemented by lower courts
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lateral – implemented by non-judicial actors such as Parliament
2. The popularity of the judicial ruling
Hypotheses
H1: judicial impact may be negligible when a judicial ruling involving a lateral issue is unpopular.
H2: unpopular decisions involving lateral issues can allow the actor responsible for implementation
(Parliament) to re-establish the policy status quo
Outcome ➔ Non-compliance
Judicial Impact and Bill101
Decision Year Legislative Response
Protestant School Boards 1984 Bill 86 Charter of the French Language 1993
Ford v. Quebec 1988 Bill 178 Charter of the French Language 1988
Bill 86 Charter of the French Language 1993
Devine v. Quebec 1988 Bill 178 Charter of the French Language 1988
Bill 86 Charter of the French Language 1993
Solski v. Quebec 2005 Bill 115 Charter of the French Language 2010
Bill 115 Act Respecting Private Education 2010
Nguyen v. Quebec 2010 Bill 115 Charter of the French Language 2010
Bill 115 Act Respecting Private Education 2010
The notwithstanding clause
• A constitutional instrument that allows for legislative reversal of judicial decisions for a
renewable 5 year period.
• Applies to:
• section 2 (fundamental freedoms)
• section 7-14 (legal rights)
• section 15 (equality rights)
• Does not apply to:
• sections 16-23 (official languages of Canada)
• section 23 (minority language education rights)
Research Inquiry
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RI: weak-form review without the instruments of weak-form constitutionalism.
E1: strong-form bureaucratic review
E2: faes itet ad the eolutio of the daft Charters in 1980-1981
E3: passive virtues of Canadian judicial review
E4: strong-form legislative review/reversal through court-curbing strategies.
Confronting the Court
Confronting the Court
1. Defiance (reactive): Section 33 of the Charter, the notwithstanding clause:
Ford v. Quebec [1988], Devine v. Quebec [1988]
1. Compliance and Defiance: statutory amendment of the Charter of the French Language:
Protestant School Boards [1984], Solski v. Quebec [2005], Nguyen v. Quebec [2009]
1. Defiance (pre-emptive): rejecting established judicial construction of rights in the absence of a
specific constitutional challenge:
Charter of Quebec Values: Bill C60 (2013)
The court and Bill 101
• Originally enacted as Bill 101:
Charter of the French Language 1977
• Invalidation offset through statutory amendment:
Charter of the French Language 1988
Charter of the French Language 1993
Charter of the French Language 2002
Charter of the French Language 2010
Act Respecting Private Education 2010
Charter of the French Language 2012
Minority Language Education Rights
• Clearest illustration of strong-form review
• Section 33, the notwithstanding clause, does not apply
• Guarantees English public education as a right of Canadian citizens for official language
minorities where numbers warrant.
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Document Summary
The policy impact of judicial invalidation of the charter of the french language by the supreme. Court of canada, whether government actually comply with judicial decisions. Successfully challenged as violating the canadian charter of rights and freedoms in 5 landmark judgments, 1984 to 2010. Test matthe(cid:449) hall(cid:859)s p(cid:396)opositio(cid:374): courts are implementer-dependent institutions when ruling on a lateral issue (decision implemented by non-judicial actors). Matthew k. hall, the nature of supreme court power. Laforest is arguing that there is a tension between judicial review federalism and provincial autonomy. There is evidence for laforest position, when he talks about feeling in exile with his own country. What laforest mean by that is that he argues that canadian federalism was about a compromise to allow. French canadians autonomy over their areas jurisdictional responsible for their cultural survival. There are strong evidence to support laforest position. Of any province quebec has suffered the most invalidation under the charter of rights.
