Minority Language School Boards and Personal Federalism in Canada — Recent and Ongoing Developments in Quebec

In April 2021, the Superior Court of Quebec ruled on the constitutionality of the "Act respecting the laicity of the State," also known as Bill 21. The Court declared that the controversial ban on the wearing of religious symbols by some specifically designated public employees is consistent with the Constitution — because of the government's use of the Constitution's notwithstanding clause — but exempted English-language school boards from its application. The court declared that Section 23 of the Charter of Rights and Freedoms grants constitutional rights to linguistic minorities in the management of their schools, as well as the right to establish policies for the hiring, retention and promotion of the personnel of their choice. The Superior Court of Quebec is also hearing a case brought by the Quebec English School Boards Association against Quebec's Bill 40, which abolished all school boards (French and English) but provided a distinct regime for the English-speaking community of Quebec, including keeping their school elections. While both decisions may eventually be taken to the Supreme Court of Canada for final arbitration, the authors ask: Are English-language school boards in Quebec becoming a constitutionally protected order of (local) government? The authors critically appraise the potential consequences on Canadian federalism of the future decisions courts shall make regarding this matter. To do so, they first provide insight into the historical and constitutional background of local governments in Canada, after which they focus on recent and ongoing developments in Quebec, then conclude by discussing the possible evolution of minority language educational rights and the personal federalism these developments could bring.

Constitutional Forum constitutionnel

Vol. 31

no. 1

19-28

2022

en