Yesterday's Supreme Court of Canada's ruling striking down parts of Quebec's Bill 104 is anchored in the idea that Quebec is free to protect the French language, but not too much.
There's a sound, well-established constitutional principle here, one that should dampen the outrage that language generates so easily on both sides.
The principle is proportionality: It is legitimate for a government to limit certain rights, if the objective is important enough and if the limitation is proportional to the problem.
Accordingly, Quebec can limit freedom of choice in language of schooling, because protection of French is important. However, "the means chosen" in Bill 104 "are not proportional to the objectives," Justice Louis LeBel wrote in the 7-0 decision. Bill 104 banned all use of unsubsidized private schools as a way into English public (or subsidized private) schools, and that, the Supremes said, surpassed the acceptable "minimal impairment of the constitutional rights."
The Quebec government has a year to try again, possibly by letting costly unsubsidized private English school be a back door into subsidized English schools only after, say, three years, instead of one. This would reduce the number of such students, by driving up a family's costs. There could also be rules about the nature of the unsubsidized schools which qualify.
In the short term, those eager to seem upset were enjoying their opportunity yesterday: Francophone hardliners reacted as expected, while Christine St. Pierre, the Liberal language minister, declared herself "disappointed and angered." Jean Charest's Liberals refuse to be out-bid on "protection of French," even at the price of betraying their numerous anglophone and allophone supporters. Anglophone Liberal MNAs had a bad day. It appears that only the courts, some courageous parents, and a few lawyers such as the redoubtable Brent Tyler are prepared to stand up for anglophones in these matters.
We expect that grumbling over this ruling will abate soon. When it comes to language and Quebec's place in Canada, the high court is adept at "yes but no" rulings like this one, which leave both sides disgruntled, but not too much.
One final note: While the government grudgingly adopts new rules, it should do the decent thing by the 25 families that brought this case. The high court ordered one special-needs girl returned to English school at once, but merely told the education department to review the files of the others. These parents stood up for their rights, and were at least partly vindicated; their children should be allowed into English schools today.