Impact Study. Evaluating Nguyen v Quebec, [2009] 3 S.C.R. 208 and Bill 115: Section 23 of the Canadian Charter Suzanne M. Birks, D. Jur.

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1 Impact Study Evaluating Nguyen v Quebec, [2009] 3 S.C.R. 208 and Bill 115: Section 23 of the Canadian Charter Suzanne M. Birks, D. Jur. December

2 Preface: The new regulatory regime, enacted in 2010 in response to the Supreme Court s ruling in Nguyen v Quebec, 1 as part of Bill 115 2, has complicated the discussion of access to public and subsidised English schools. The whole of the issue of access was relegated to the obscurity of an administrative process under an opaque and ambiguous regulatory measure. In effect, this was an attempt by the Quebec Government to finesse the discussion. The Quebec Government may have believed it had little choice, given the hostility that greeted the Supreme Court s decision, but to remove the question of schools access off the table. In doing so it avoided prolonging a difficult and deeply controversial language debate. At the same time, Quebec reinforced what had already become a serious impasse in the education system, an impasse which will have significant implications for everyone in Quebec, but most of all, in the immediate future, for the English-speaking community. The challenge remains how to manage the future and preserve the vitality of the English publicly funded schools system. The effect of Nguyen v Quebec The reality is that, apart from a series of Supreme Court decisions, there have been few voices outside the English-speaking community who have considered what is the place of that community in the civic life and institutions of Quebec. There are constitutional protections in the Canadian Charter of Rights and Freedoms (Canadian Charter), and there is section 133 of the 1867 Constitution, but they are not by themselves enough to define the ways in which the English-speaking community may exist as an integral part of Quebec s larger identity. In other words, despite Supreme Court decisions which have affirmed, piecemeal, rights to public education, there is no larger vision of how the English-speaking community belongs in a larger vision of Quebec s constitutional structure. Some attempt at a larger vision appeared in an undefined way in the trilogy of language rights cases that began with the 2005 decisions in Gosselin and Solski, both handed down on the same day, and more recently with Nguyen v Quebec. The Court s decisions were for the most part rebuffed by the political realities of Quebec. This is the way in which the language impasse has historically taken shape. Now, however, with respect to schools access, the stalemate has become even more resistant. How then to address this reality? 1 Nguyen v. Quebec (Education, Recreation and Sports), 2009 SCC 47, [2009] 3 S.C.R Bill 115, An Act following upon the court decisions on the language of instruction, S.Q., 2010, c. 23 (Bill 115); Loi faisant suite aux décisions judiciaires en matière de langue dʼ enseignement, L.Q., 2010, c. 23; more particularly, the regulation implementing the changes to the CLF: Règlement sur les critères et la pondération applicables pour la prise en compte de l'enseignement en anglais reçu dans un établissement d'enseignement privé non agréé aux fins de subventions, c. C-11, r. 2.1, Charte de la langue française, L.R.Q., c. C-11, article 73.1; Regulation respecting the criteria and weighting used to consider instruction in English received in a private educational institution not accredited for the purposes of subsidies, c. C-11, r. 2.1, Charter of the French Language, R.S.Q., c. C-11, section

3 Certain elements of the present impasse are not new. They are the inevitable consequence of a policy which is intended to preserve and promote French as the language of civil society in Quebec. As a general principle, these goals have been recognised to be necessary, legitimate and reasonable. 3 They do not impinge on the individual right to equality under the Canadian Charter. 4 Indeed, the protection of minority-language rights is a means of enabling the right to equality of the minority language rights holders. 5 It has also been held to be reasonable to limit access to publicly funded English-language schooling as part of the policy of protecting the quality of French and the principle role of the French language in Quebec. 6 However, the constitutional and political battles grow very intense when it comes time to say how far the limitations on access may go and where the lines may be drawn between what is a reasonable burden on individual language freedom and what is disproportionate and therefore unconstitutional. The process of line drawing will always be done to some degree at the expense of the minority group, even when the results are found to be reasonable. On the question of restricting access to publicly funded resources, in this instance, public schools, the complicating and controversial aspect is to determine what criteria are to be used to exclude people. On what grounds may people validly be denied the right to enroll their children in the minority education system? It is on this question of criteria that the current impasse developed and now seems to shut off avenues of compromise. As with any discussion of language rights, the past hangs heavily over the present, the principal tenets of la Charte de la langue française 7 are necessarily embedded in Quebec s fundamental identity and understanding exactly how the stalemate grew so resistant to dialogue or reform is therefore a complex exercise of understanding and historical diplomacy. Unfortunately, language rulings from the Supreme Court have not been enough to move the question of schools access beyond stalemate. The impasse which has now taken hold has been made substantially more severe in the wake of the 2009 Supreme Court of Canada ruling in Nguyen v Quebec 8 and the 3 The Supreme Court has been at pains to underscore the legitimacy of the general principle of protecting the French language and Quebec s identity through the imposition of the Charter of the French Language. The issue of constitutional validity is always determined on the question of proportionality. The need to protect the French identity of Quebec is clearly a pressing and substantial objective and the Charter of the French Language is rationally connected to the objective of promoting the French language. It is the means chosen that have not always survived constitutional scrutiny. See, for example, the Court s discussion in Ford v Quebec (Attorney General), [1988] 2 S.C.R. 712, at paragraphs 72 and 73; see also Gosselin (Tutor of) v Quebec (Attorney General), [2005] 1 S.C.R. 238, 2005 SCC 15. See also Solski (Tutor of) v Quebec (Attorney General), [2005] 1 S.C.R. 201, 2005 SCC 14; Okwuobi v Lester B. Pearson School Board, Casimir v Quebec (Attorney General), Zorilla v Quebec (Attorney General), [2005] 1 S.C.R. 257, 2005 SCC 16; Solski (Tutor of) v Quebec (Attorney General), [2005] 1 S.C.R. 201, 2005 SCC 14; and Nguyen v. Quebec (Education, Recreation and Sports), 2009 SCC 47, [2009] 3 S.C.R Gosselin (Tutor of) v Quebec (Attorney General), [2005] 1 S.C.R. 238, 2005 SCC Ibid., See also Mahe v Alberta, [1990] 1 S.C.R The trilogy of Gosselin, Solski and Nguyen are the leading cases. Supra, footnote 1. 7 Charte de la langue française, L.R.Q., c. C-11, Charter of the French Language, R.S.Q., c. C Nguyen v. Quebec (Education, Recreation and Sports), 2009 SCC 47, [2009] 3 S.C.R. 208; handed down on 22 October

4 Quebec National Assembly s response to the decision in the form of Bill The judgment in Nguyen found Quebec s schools access policies were unreasonably restrictive ruling that these policies violated section 23(2) of the Canadian Charter. The invalidity stemmed from the refusal to allow students from unsubsidised private English-language schools to transfer into the English public system. As is invariably the case with language rights appeals, the issue turned on the proportionality of the legislation. However, establishing proportionate rules is a very difficult balancing exercise, fraught with political complexity. Finding a balance in the schools access issue has so far proven to be strenuous. The Supreme Court of Canada in Nguyen and two earlier language-rights decisions, Gosselin 10 and Solski 11, has substantially extended and transformed section 23(2) of the Charter and how the concept of hereditary linguistic rights, on which section 23 of the Charter is based, has complicated and in some ways made the protection of English-language education in Quebec more problematic. It is this problematic nature of section 23 that is in some measure responsible for the determination of the National Assembly in effect to privatise the future growth of English-language education, an approach that was evident in 2002 with the passage of Bill and remains the dominant intent of Bill , which was the legislative response to Ngyuen. Given the severity of the impasse, what possibilities might Quebec consider using other means to reinforce its control over minority-language education rights? If the circumstances which are currently constraining access to the English-language education system in Quebec cannot be resolved or moderated by legislative reform, or some other kind of consensus, might there be, at some unknown future date, any of the following constitutional changes? Might Quebec make use of the bilateral or asymmetrical amending procedure under section 43 of the Constitution to alter English schools access? There are two ways in which this might occur. The first would be an attempt to modify section 23 of the Canadian Charter directly, and the second might be to attempt to alter section 93, the education section of the Constitution. For reasons described further on, neither one of these is likely feasible. Could Quebec make use of the override in section 33 of the Canadian Charter, in order to restrict access to private, unsubsidised English schooling? Private rights always raise the issue of basic freedoms, including the section 2(b) freedom of expression. The right to educate one s children privately is part of basic liberty. Any attempt to restrict this liberty could only be done by using section 33, an action that would come at enormous political cost. However, this would not be the end of the matter. The issue 9 Bill 115, An Act following upon the court decisions on the language of instruction, S.Q., 2010, c. 23 (Bill 115); Loi faisant suite aux décisions judiciaires en matière de langue dʼ enseignement, L.Q., 2010, c Gosselin (Tutor of) v Quebec (Attorney General), [2005] 1 S.C.R. 238, 2005 SCC 15. See also Solski (Tutor of) v Quebec (Attorney General), [2005] 1 S.C.R. 201, 2005 SCC 14; Okwuobi v Lester B. Pearson School Board, Casimir v Quebec (Attorney General), Zorilla v Quebec (Attorney General), [2005] 1 S.C.R. 257, 2005 SCC 16; all of which were heard together on 22 March 2004 and all of which were handed down on 31 March Solski (Tutor of) v Quebec (Attorney General), [2005] 1 S.C.R. 201, 2005 SCC Bill 104, Loi modifiant la Charte de la langue française, L.Q., 2002, c. 28; An Act to Amend the Charter of the French Language, S.Q., 2002, c Bill 115, An Act following upon the court decisions on the language of instruction, S.Q., 2010, c. 23 (Bill 115); Loi faisant suite aux décisions judiciaires en matière de langue dʼ enseignement, L.Q., 2010, c

5 would inevitably fall to be resolved as part of section 23. In the case of section 23 of the Canadian Charter, which protects mostly rights to public schooling, the provision does not fall within the list of rights which can be overridden. There have been proposals from time to time that the National Assembly should bring all private schools under the purview of the CLF. This would have the effect of making freedom of expression the central issue of any such initiative. There is every likelihood that any such attempt would also run afoul of section 23, and therefore a section-33 override would not succeed. The problematic nature of section 23 Central to this analysis is a description of the restrictive effect that the hereditary element of minoritylanguage education rights, contained in section 23 of the Canadian Charter, has had and will continue to have on the development of the community. If demographic changes on the Island of Montreal and across Quebec as a whole are reducing the number of English-speaking institutions, including schools, and even their survivability, then the Constitution and the current regulatory environment are assisting the narrowing process. The future survival of institutions requires that, quite apart from questions of demography, the constitutional and regulatory issues be addressed and a means be found to minimise their negative impact. A fundamental component of the ability of the English-speaking community to evolve in Quebec and to receive education services is limited, in a material way, by the effect of the very section of the Canadian Charter that was intended to help preserve minority-language schooling. Unfortunate as this may be, it is nonetheless the inevitable result of the content of section 23. The hereditary aspect of the provision has invested the section 23 education right with the potential to create unknown numbers of rights holders, and this is perceived as a threat to the preservation of the surrounding culture and the Frenchspeaking identity of Quebec s civil society. Whether this threat is theoretical or real, small or significant, whether it is likely or improbable, the existence of the possibility alone has created a wedge between the official-language members of Quebec society. That wedge has to be addressed before any lasting resolution to the problem of access to the Englishlanguage education system can be designed or even envisioned. Looking at Nguyen In October 2009, the Supreme Court of Canada handed down what was in many ways the most radical of its long line of rulings on language rights under the Charter. 14 The judgment, Nguyen v. Quebec, The various subsections of section 23 tend to apply in separate ways to the different provinces. Apart from the obvious distinction that section 23(1)(a) does not apply in Quebec, there are other differences. The concern for minority French-speaking communities outside Quebec has been management and control of school boards and services. For these groups, section 23(3) is the focus of their attention. In Quebec, where, since the 1970s, the problem for those seeking admission to the minority-language system has been establishing their eligibility to enter the well established network of minority-language schools, section 23(2) has become the issue. Outside Quebec, the hereditary aspect of section 23 is said to permit assimilated members of the linguistic minority to recapture their background and their language for their children. In Quebec, there is no issue of recapture, the hereditary aspect tends to reinforce barriers to entry. The Supreme Court has described the varied application across the country of section 23 on more than one occasion, referring specifically to the different circumstances of official-language minorities in Quebec and in other provinces. In addition, where the linguistic minority is small, the threshold level for receiving 5

6 struck down, as unconstitutional, amendments that Quebec had added in to section 73 of la Charte de la langue française (CLF). 17 The amendments in question were contained in an Act, identified by legislative shorthand as Bill 104 and which formed a strategically important element of Quebec s policy governing access to publicly funded English-language schools. The purpose of the 2002 amendments was to restrict the expansion of the number of people who could enroll their children in the publicly funded English education system. Bill 104 achieved this purpose by denying access to any student who sought eligibility for the English public system based on prior enrollment in a so-called bridging school. A bridging school is a private educational facility that admits students to its English-language school programmes irrespective of their eligibility under the CLF. Under section 72 of the CLF, the language of instruction in Quebec s Kindergarten, primary and secondary schools is French. 18 Bridging schools are not accredited for the purposes of receiving government subsidies because they do not bring themselves within the section 72 publicly funded support for education, the where numbers warrant threshold, creates what the late Chief Justice Dickson described in Mahe v Alberta, [1990] 1 S.C.R. 342, as a sliding scale of government obligations that may vary from fairly minimal up to the establishment of independent linguistic school boards. With respect to section 23(1)(b) of the Charter, it was initially referred to as the Canada clause, in the early years of the Charter, since it operates as a sort of full faith and credit clause for minority language rights under the Constitution. It was distinguished from the Quebec Clause, found in section 73 of the CLF, which excluded people from accessing the publicly funded English-language education system, unless at least one parent had received primary school training in English in Quebec. See, infra. 15 Nguyen v. Quebec (Education, Recreation and Sports), 2009 SCC 47, [2009] 3 S.C.R. 208; handed down on 22 October Bill 104, Loi modifiant la Charte de la langue française, L.Q., 2002, c. 28; An Act to Amend the Charter of the French Language, S.Q., 2002, c. 28. It was amendments to section 73 of the CLF which were struck down. Apart from these provisions, Bill 104 remains intact. The Act added to the CLF by establishing two new administrative offices for the management and control of French language usage in Quebec: l Office québécois de la langue française (CLF, sections 157 et ff) and le Conseil supérieur de la langue française (CLF sections 185 et ff). The Office was given significant policy-making, supervisory and enforcement powers under the CLF, including francisation. The Conseil was set up to advise the Minister responsible for the CLF. These administrative offices are discussed further, infra. 17 Charte de la langue française, L.R.Q., c. C-11, Charter of the French Language, R.S.Q., c. C Charte de la langue française, L.R.Q., c. C-11, Charter of the French Language, R.S.Q., c. C-11; the wording of section 72 is as follows: L'enseignement se donne en français dans les classes maternelles, dans les écoles primaires et secondaires sous réserve des exceptions prévues au présent chapitre. Instruction in the kindergarten classes and in the elementary and secondary schools shall be in French, except where this chapter allows otherwise. Section 72 goes on to stipulate that the rule extends to subsidised private schools as well as to the public system. 6

7 linguistic requirements. They operate outside the institutional structure of the general education system and, for better or for worse, reflect a demand not satisfied by that larger system. Bill 104 targeted not only the children of immigrants, but also members of the French-speaking community who were seeking a way of obtaining what they regarded as effective bilingual education for their children. As a means of protecting and promoting the vitality of Quebec French, Bill 104 was a poor instrument. The result was to close off the publicly funded English system to all children, except those whose parents, or one of them, held a protected status under section 23 of the Canadian Charter. Protected status covered only those students whose parents had already received the major part of their schooling in English somewhere in Canada and who held Canadian citizenship. In preventing access to publicly funded English-language schools by everyone but a narrowly defined group of hereditary language rights-holders, the Quebec Government had effectively privatised all future growth of the English-language education system. By the same token, Quebec had set the existing publicly funded English education system on a path to extinction or virtual extinction, as the group of hereditary rights holders could not grow, except through in-migration of people from other parts of Canada, natural increase of the English-educated Quebec Anglophone population or through intermarriage between rights-holding Anglophones and Francophones or naturalised newcomers. The Bill 104 amendments governing access were part of a compendium of additions to la Charte de la langue française 19 in Included in a larger series of protective measures for the French language, they effectively walled off a key public institution serving the Anglophone community in English, reinforcing their isolation from the larger Quebec community. In doing so, they also impeded the larger Quebec community for whom bilingualism no longer held the unfortunate associations it had had throughout the twentieth century. It was therefore not surprising when the Supreme Court found these amendments to be too harsh, proceeded to carve the restrictions out of the law 20 and then invalidated them because they were inconsistent with section 23 of the Canadian Charter. In the view of the Court, such prohibitive measures, along with their resulting effects, were disproportionate and unnecessary to protect the French language. However, the Court s decision struck deep into the central structure of Quebec s language policy and was unexpectedly radical in two respects. First, building on a theory that they had developed in a pair of 19 Charte de la langue française, L.R.Q., c. C-11, Charter of the French Language, R.S.Q., c. C Bill 104 still operates, but without the invalid provisions that had been included in section 73 of the CLF. Access to English schooling is still governed by the exceptions found in section 73 CLF, but there are new amendments to replace the invalidated provisions. These were passed in the wake of Nguyen and are contained in Bill 115, which added section 73.1 to the CLF, and its associated regulation; Bill 115, An Act following upon the court decisions on the language of instruction, S.Q., 2010, c. 23 (Bill 115); Loi faisant suite aux décisions judiciaires en matière de langue d enseignement, L.Q.,2010, c. 23; more particularly, the regulation implementing the changes to the CLF: Règlement sur les critères et la pondération applicables pour la prise en compte de l'enseignement en anglais reçu dans un établissement d'enseignement privé non agréé aux fins de subventions, c. C-11, r. 2.1, Charte de la langue française, L.R.Q., c. C-11, article 73.1; Regulation respecting the criteria and weighting used to consider instruction in English received in a private educational institution not accredited for the purposes of subsidies, c. C-11, r. 2.1, Charter of the French Language, R.S.Q., c. C-11, section 73. 7

8 earlier and very similar cases, Solski 21 and Gosselin 22, the Justices reinterpreted and significantly expanded section 23(2) of the Canadian Charter. In the hands of the Justices, section 23(2) grew to resemble section 23(1)(a), a provision that has never been in force in Quebec. The Court s reinterpretation, in theory at least, attempted to open up access in a moderate way to the publicly funded English school system. The judgment did so by challenging the enclave theory that has been an essential tenet of language protection since the beginning of time for Confederation and, indeed, long before Confederation. Language protection under section 23 of the Canadian Charter, said the Court, protected both official languages and cultures, but not at such expense of each other. 23 Second, as part of the challenge to the enclave notion, the Court appeared to uphold a right of parents to some degree of free choice in the selection of school systems. It was not automatic free choice (Gosselin), but for those who had demonstrated a genuine commitment to the minority language by, among other things, educating their children privately in unsubsidised English schools, it was possible to gain access to the publicly funded English system. In the wake of these three cases, but particularly Nguyen, the guarantee of access to a minority official-language school was to be determined on the basis of demonstrated genuine commitment 24 to the minority language. Establishing genuine commitment was a question of fact that depended on a qualitative assessment of all the circumstances of each child for whom access to the English-language system was sought. The phrase qualitative assessment came from the earlier, Solski, 25 judgment. Further, it did not matter how or where that commitment was formed, so long as it was of sufficient duration and serious. This second precept was by far the most drastic development, not only of the Nguyen ruling alone, but of its effect combined with the Gosselin and Solski decisions that had preceded it. With the appearance of Nguyen, these three cases came together as an unofficial language-rights trilogy directed largely at Quebec. In Nguyen, the Court went a good deal farther than it had in the earlier cases. In effect it 21 Solski (Tutor of) v Quebec (Attorney General), [2005] 1 S.C.R. 201, 2005 SCC 14; Gosselin (Tutor of) v Quebec (Attorney General), [2005] 1 S.C.R. 238, 2005 SCC 15. See also Okwuobi v Lester B. Pearson School Board, Casimir v Quebec (Attorney General), Zorilla v Quebec (Attorney General), [2005] 1 S.C.R. 257, 2005 SCC 16; all of which were heard together on 22 March 2004 and all of which were handed down on 31 March Gosselin (Tutor of) v Quebec (Attorney General), [2005] 1 S.C.R. 238, 2005 SCC See, Solski (Tutor of) v Quebec (Attorney General), [2005] 1 S.C.R. 201, 2005 SCC 14, where the Court describes section 23 of the Canadian Charter as remedial and therefore to be given a generous and purposive interpretation. At paragraph 23 of the judgment, the Court declared the following: "Section 23 is clearly meant to protect and preserve both official languages and the cultures they embrace throughout Canada; its application will of necessity affect the future of minority language communities. 24 The phrase genuine commitment is used once in Nguyen, at paragraph 29 of the judgment, but the process of evaluating whether a student should be given access to the English-language school system because genuine commitment has been demonstrated is the same as the test developed in Solski, which ruled that there must be a qualitative assessment of applicants to the English system, and not a toting-up of time alone. See, Solski, supra, footnote 8, at paragraphs 28, 35, 38, 44, 46, 47, Solski (Tutor of) v Quebec (Attorney General), [2005] 1 S.C.R. 201, 2005 SCC 14, paragraphs 28, 35, 38, 44, 46, 47, 56. 8

9 demanded of the Quebec National Assembly that they reconsider how the two school systems were to live together and to rethink the very basis on which schools access was determined. Implicitly, this entailed at least some degree of evaluation and discussion of the principles that historically have surrounded the protection of the French language in all of its roles in Quebec civil society. It was inevitable that the decision should cause much controversy and ultimately the political legislative impasse over language and schools access which now exists and appears to have few possibilities of reasonable exit. In the wake of Nguyen, there followed a year of contention that served only to demonstrate that the Quebec Government could find no common ground for any response, except one that obfuscated the intractable issues raised by the Supreme Court. The Government's advisors appeared to have no solution and would take no risks to find one. The initial effect of Nguyen was to eliminate the legal barrier that, since the enactment of Bill 104 in 2002, had prevented all pupils who were attending or had attended unsubsidised English private schools from claiming a right of access to publicly funded English schools. In other words, under Bill 104, parents who did not hold a hereditary right to enroll in English schools, could pay to train their children in unsubsidised private schools, the so-called bridging schools and take their chances; or they could place the children in the French public system. After Nguyen, that part of Bill 104 was gone, and they could claim the protection of section 23 of the Canadian Charter, more particularly, section 23(2). So long as applicant parents could show commitment to the minority language, and this amounted basically to showing good faith over an unspecified period of time, a section 23 right was acquired. Moreover and herein lies the heart of the controversy that right, once acquired under section 23(2), becomes hereditary. The combination of free choice, even modified free choice, and the expansion to unknown numbers, of section 23 hereditary language rights was not seen as an opportunity offered by the Supreme Court to reconsider its approach to education. In Quebec, the decision was seen to be anything but moderate or reforming. Instead, it was received by many commentators as undermining the most fundamental language principle of la Charte de la langue française, that French is the language of education and the language of integration for all newcomers. The controversy did not lead to dialogue, but to impasse in the form of Bill 115, together with its associated regulation. Given one year by the Court to bring its school access rules into compliance with the judgment and reacting to the outrage provoked by Nguyen, the Quebec Government tried to legislate its way out of the box canyon. Its first attempt, Bill 103, was roundly criticised and withdrawn. Immediately before the Court s one-year deadline expired in late October 2010, the Government made a second attempt with Bill 115. Although much of the central legislative machinery of Bill 115 was identical to that of its predecessor, the new version was more focussed, abandoned any attempt to reinforce language rights in the Quebec Charter of Human Rights and Freedoms and reflected a certain expediency. It was enacted using the rules of closure to limit debate and force the bill over the finish line. The central feature of Bill 115 is essential to understanding the nature and the depth of the current language impasse. That central feature is a regulatory measure so opaque and complex that it can be used to keep transfers into the publicly funded English school system to minuscule levels. Seen in the abstract, the main effect of Bill 115 and the new regulation has been to return Quebec s school access rules to a pre-nguyen condition. In this way, the Court s decision has been effectively modified by the National Assembly in such a way as to comply as little as possible, if at all, with the ruling and its requirement of objective, individual evaluation of the file of every student for whom an application is 9

10 made to join the English public system. In the ongoing dialogue between democratic majority rule and judicial decision-making, majority rule has won out. The regulation amounts to a kind of bottle stopper, restricting the flow of students from private, unsubsidised English-language schools to the publicly funded English-language system. However, no part of this narrative captures the seriousness of the stalemate created by the Nguyen episode. To view the Nguyen decision and the National Assembly s legislative response as one more in a long, largely undifferentiated history of linguistic encounters, serious, but at the same time somehow anodyne, would be a grave misjudgment. At this time in the history of Quebec, Canada and Confederation, Nguyen demonstrates that we have quietly arrived at a point where it has become necessary to reexamine some of our fundamental assumptions about language issues. The deeper consequence of the judgment is that it has ended up restricting the linguistic options of all Quebeckers. It has done this without providing the necessary means for protecting French over the long term in a globalised, interconnected world, and it has further isolated the English-speaking community, especially those living in the regions [outside the Montreal CMA ed.]. While it is not the cause, Nguyen has been the occasion for separating Quebeckers even further into linguistic enclaves. The Supreme Court, of course, could do no more than interpret the law and apply it. Democratic pressure trumped judicial review, but, as with everything in Quebec, the reality is more complex, and the potential for moving forward and moderating the harshness of Bill 115 exists. 10