The Hidden Ally: How the Canadian Supreme Court Has Advanced the Vitality of the Francophone Québec Community DISSERTATION Presented in Partial Fulfillment of the Requirements for the Degree Doctor of Philosophy in the Graduate School of The Ohio State University By Douglas S. Roberts, B.A., J.D., M.A. Graduate Program in French and Italian The Ohio State University 2015 Dissertation Committee: Professor Wynne Wong, Advisor Professor Danielle Marx-Scouras, Advisor Professor Jennifer Willging Copyright by Douglas S. Roberts 2015 Abstract 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. ii 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. iii Dedication This dissertation is dedicated to my wife, Mary Ellen Coleman. iv Acknowledgments I am certainly grateful for the help, guidance, and encouragement of those OSU professors who served on my committee, including Jean Francois Fourny, Wynne Wong, Danielle Marx-Scouras, and Jennifer Willging. But there are also others. It is challenging to write about a legal system in a foreign country. While I have practiced law for many years in the United States, the Canada legal system is different, and I found that I had to be very careful that I did not let my American experience as a lawyer cause me to make inaccurate assumptions and statements about the Canadian political and legal system. I have practiced law for 35 years in Ohio, and through the course of the practice, I was quick to learn that whenever a lawyer tried to handle a case outside his or her area of expertise, bad things often happened. I did not want to make that mistake here. Reading articles and books about the Canadian legal system can only take you so far. In order to test our your ideas, there comes a time when you simply need to dialogue not only with your American colleagues, but also with Canadian lawyers, law students, teachers, and law professors. And that is what I have done here. To that end, I want to acknowledge the assistance of a number of people who guided me on this journey, including Denis Fourny, Jean-Daniel Vieilleux, Inés Negrete, Sarah-Emmanuelle Duchesne, Stéphane Lewis-White, Kevin P. Hidas, Roman Ivanov, Professors Morgan Liu, Stéphane Spoiden, Stéphane Beaulac, Daniel v Turp, and Jarrett Rudy; and Attorneys Mark C. Power, Keiran Gibbs, and Lisa Moncalieri. I always found my exchanges with these people, either in person or by email, extremely helpful. Professor Beaulac, Keiran, and Roman, in particular, provided me with wonderful feedback throughout this rather challenging task. And above all, I am grateful for the encouragement, love, and support of my incredible wife, Mary Ellen. With the help of all of these persons, this dissertation went through countless drafts, and I hopefully got it right. I am grateful for their expertise, kindness, patience, and steadfast encouragement. Any and all errors are of my own creation. vi Vita April 30, 1951 ................................................Born – Columbus, Ohio 1973................................................................B.A., Philosophy, Ohio University 1976................................................................J.D., Law, The Ohio State University 1976-1977 ......................................................Clerk to C. William O‘Neill, Chief Justice of the Ohio Supreme Court 1977-1978 ......................................................Clerk to Robert M. Duncan, Judge of the United States District Court, Southern District of Ohio 1984................................................................Adjunct Professor, College of Law The Ohio State University 2002-2004 ......................................................Instructor, Legal Nurse Consultant Program Capital University Law School 2011................................................................M.A., French, The Ohio State University Publications Co-author. "A Practitioner's Guide to Comparative Negligence in Ohio." Ohio State Law Journal41.1: 1980. Co-author. "Consumerism Comes of Age: Treble Damages and Attorney Fees in Consumer Transactions - the Ohio Consumer Sales Practices Act." Ohio State Law Journal42.927: 1981. Associate editor. Couse‘s Ohio Form Book, 6th edition. Howard A. Couse and Glen Weissenberger, main authors. Cincinnati: Anderson. 1984. Contributing author. Handling Automobile Warranty and Repossession Cases. Roger D. Billings, main author. Rochester: Lawyers Co-Operative Pub., 1984. vii "Forum Shopping: Beating the Statute of Limitations in Product Liability Cases." Ohio Trial Summer 1993. Fields of Study Major Field: French and Italian viii Table of Contents Abstract ............................................................................................................................... ii Dedication .......................................................................................................................... iv Acknowledgments............................................................................................................... v Vita .................................................................................................................................... vii List of Figures ................................................................................................................... xii Introduction ....................................................................................................................... 1 The Constitutional Framework of the British North America Act, 1867 ......................... 13 The Supreme Court of Canada .......................................................................................... 17 The Principles adopted to advance the Francophone community vitality ........................ 22 How the Canadian Supreme Court has advanced Québec language/culture...…….…….26 Chapter 1: Québec’s Quiet Revolution ........................................................................ 35 Bringing Québec into the modern age: The Quiet Revolution ........................................ 35 The Design of Canadian Confederation: Constitution, 1867 ............................................ 51 The Canadian Court System ............................................................................................. 59 Conclusion ........................................................................................................................ 65 Chapter 2: Principle of Institutional Integrity ............................................................ 67 ix Reference re Supreme Court Act, sections 5 and 6 (2014) ............................................... 67 Reference re Senate Reform (2014) .................................................................................. 77 Conclusion ........................................................................................................................ 86 Chapter 3: Principle of Canadian Federalism ............................................................ 88 Ford v. Québec: Constitutional challenge to Bill 101 (1988) .......................................... 90 Re Reference re Secession of Québec (1998) ................................................................. 104 Reference re Securities Act (2010) ................................................................................