Monday, October 26, 2009

Canada's Highest Court Not So Supreme

Imagine a criminal standing before a judge, immediately after having been convicted for stealing and asking the judge to stay the sentence.

"Your Honour, I know that I've been convicted of stealing but I'd like to appeal to a higher court and in the meantime, I'd ask you to hold off on the sentence."

"Why should I do that, you've been found guilty of stealing?" answered the judge. "On what point would you be appealing the conviction, anyway?"

"Your Honour, I have a very good excuse. I've been stealing these last five years because I have to provide for my family, they are very needy. If you punish me, my whole family will suffer and believe me it's a big family. I only steal from a couple of people and so on balance the greater good is achieved by letting me continue. It's an extenuating circumstance that I believe should be considered by a higher court."

"Hmmm..." answered the Judge. "I don't think you have a prayer of winning, but your logic of the greater good is at least grounds for an appeal and I feel for your family. I shall therefore grant your request!"

"Thank you, your Honour. errr..... I have just one more request. Does this ruling mean that I can continue stealing until my case is decided in the appeals court?"

"Hmmmm." answered the judge after some consideration. "I guess so, I wouldn't want your family to suffer."

And so the thief continues to steal for another two years until his appeal is heard in the Supreme Court of Canada.

His lawyer pleads his case and the government lawyers do the same. The judges listen carefully, retire and take the matter under advisement.

The thief asks his lawyer if he can continue stealing while his case is being studied by the judges.

"Of course. they didn't say you couldn't!"

Nine long months later the court releases it's judgment. It's not that shocking, the first judge accurately predicted the outcome.

The thief's conviction is upheld unanimously. The court rules that stealing is not permitted, even for good reasons.

The judgment orders the thief to stop stealing and directs him to find an honest way to support his family.
But the judges remain sympathetic to the plight of the family and in a ruling worthy of Solomon, tells the thief that the judgment will be delayed for a year so that he can figure out what to do.

"Does this mean I can steal for another year?" asks the thief to his lawyer?

"You bet," answers the lawyer, "and don't worry about a thing. In a year we'll figure out another con and hopefully it will take take another seven years to go through the system!"

Sound unbelievable?

It shouldn't;

In 2002 the separatist Parti Quebecois government decided to close what they viewed as a loophole, a practice whereby some immigrants and Francophones gained admission to English schools (which they were not permitted to attend under the infamous law, Bill 101) by attending a private English school for a short time.

You see, these private schools are not covered by the language law and anyone with money can attend. Once the student spends some time in the school, he or she could transfer to a public school claiming a right under Canada's Charter of Rights.

That right, Section 23 of the Charter of Rights and Freedoms guarantees that if you've had some primary school education in either English or French you can demand to continue instruction in that language.

" Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary language instruction in the same language."
So by sending a child to an English primary school, even for a short time, a family gains the right to a public education in English for all it's children.

The Quebec government was furious at the work-around and drew up Bill 104 in response. The law, which banned the 'bridging practice,' blatantly ignored the Charter of Rights and Freedoms. Every single constitutional lawyer in the province understood that what the Quebec government did was illegal but the separatist government didn't care. If the law was challenged it would suit them as well. It would be a French versus English battle and even if they lost in court (which they knew they would,) they would likely win in the street.

Let's compare the true story of Bill 104 with my fanciful story about the thief.

In 2002, the Quebec government wrote an illegal law, whose effect was to steal an English education from students legally entitled to one.

After five years of stealing, the Quebec Court of Appeal struck down the law based on the Section 23 of the Charter.

The Quebec government asked for and received a delay from the court for the implementation of the ruling, so that they could appeal the ruling to the Supreme Court.

Another two years went by and the government continued to implement the illegal law and continued to rob students the opportunity to go to English schools.

Finally the Supreme Court unanimously ruled in favour of the students, but again delayed the imposition of the decision for another year. Another year in which the Quebec government could enforce an illegal law.

Eight years after the illegal law was enacted it remains in force today, even after having been declared illegal by the highest court in Quebec and the Supreme Court of Canada. Students continue to be denied their legal rights under the Charter.

This isn't Wonderland, it is CANADA, which may be the only western democratic country in the world, where winning a case in the Supreme Court doesn't necessarily guarantee that you may enjoy the fruits of the victory.



  1. A closer examination of the Supreme Court decision (and the Court of Appeal before it) was not that the intent of Bill 104 was "illegal" but that the means used could violate some rights; specifically because the rules in the law were applied to a whole category of applicants and not judged on an individual basis. The court indicated that a re-written law could be compatible with the Charter.
    Your logic would be that from today until the new law, there could be a free-for-all. that is not the intention of the Supreme Couirt on whose "decision" you base your argument.

  2. The 'Supreme Court Judge' who made this ruling is an idiot and a bigot. But then again they are one and the same aren't they.

    Not to mention the freaking federal government that DEFENDED Bill 104!!!!!!!!!

    The court claims that bias & bigotry and the denial of fundamental rights - like our freaking LANGUAGE could me made compatible with the Charter?? What, is Canada going to erase us altogether? These guys should be arrested - not sit on the Supreme Court. Nothing Supreme here except for the treasonous bigoted Quebec governments... Seps & Liberals.. the freaking racists!!