The Hidden Ally: How the Canadian Supreme Court Has Advanced the Vitality of the Francophone Quebec Community

Since the adoption of the Charter of Rights and Freedoms in 1982, the Canadian Supreme Court has become a much more powerful and influential player in the Canadian political and social landscape.As such, the Court has struck down certain sections of the Charter of the French Language (Bill 101) as contrary to the Constitution, 1867 and the Charter of Rights and Freedoms.In Ford v. Québec, [1988] 2 S.C.R. 712, for instance, the Court found unconstitutional that portion of Bill 101 that required commercial signage to be in French only.After the decision was announced, public riots broke out in Montreal.As a result of this decision, one could conclude that the Court has, in fact, resisted Québec's attempts to protect and promote its own language and culture.In this dissertation, however, I argue that this perception is not justified, primarily because it fails to recognize how Canadian federalism protects diversity within the Confederation.Contrary to the initial public reaction to the Ford case, my contention is that the Court has, in fact, advanced and protected the vitality of Francophone Québec by developing three fundamental principles.The first principle is institutional integrity.Under this principle, the Court has advanced the rule of law in Canada by protecting the integrity of the process by which members of the Court and Senate are chosen.This is important because both institutions are particularly important to the balance of power and the protection of minority groups within the Confederation,including minority language communities.The second principle is Canadian federalism.iii Under this principle the Court has developed a jurisprudence in which the provinces retain sufficient legislative power to manage their own internal affairs, and in the case of Québec, particularly those relating to language and education.The third principle is constitutional dialogue.Under this principle, the Court encourages a constitutional dialogue between the political actors, after the Court has struck down a law as unconstitutional, that maximizes the democratic process and Québec's ability to protect and advance the Francophone culture.As a result of these principles, the Court has created the legal framework that not only has enabled Québec to protect and promote its language and culture, but also developed those overreaching constitutional principles that strengthen the Canadian Confederation.iv

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