1. MINORITY-LANGUAGE EDUCATION RIGHTS

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Section 23 of the Canadian Charter of Rights and Freedoms (Charter)14 gives parents belonging to English and French minority communities the right to have their children educated in the minority language. In addition to this right, section 23 also guarantees the right to facilities and the right to manage and control such facilities. Each province and territory is responsible for the implementation of minority-language education rights. Section 23 reads as follows:

 23. (1) Citizens of Canada

a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or

b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province.

(2) 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 school instruction in the same language.

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province

a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and

b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

The rights conferred by section 23 are both collective and individual. They are individual in the sense that they apply to parents belonging to one of the three categories of rights holders:15 persons whose first language learned and still understood is that of the minority of the province in which they reside, those who have received their primary school education in Canada in the minority language of the province in which they reside, and those who have a child that has received or is receiving primary or secondary school education in the minority language of the province in which they reside. The collective aspect is expressed in the purpose of the provision, which is to protect and preserve both official languages and their respective cultures throughout Canada. The scope and nature of the provincial and territorial governments’ obligation to provide facilities and minority-language education programs vary according to the number of students likely to make use of such services.16

Over the years, the courts have developed various principles to guide the interpretation of section 23. First, as the Supreme Court of Canada explained in Mahe, section 23 must be interpreted in accordance with its purpose. What is essential to satisfy that purpose is that the minority community has control over "those aspects of education which pertain to or have an effect upon their language and culture."17 The Court later added that the remedial nature of section 23 should also be taken into account in its interpretation, and that such an interpretation "is based on the true purpose of redressing past injustices and providing the official language minority with equal access to high quality education in its own language, in circumstances where community development will be enhanced."18 Finally, the implementation of section 23 is contextual, meaning that it depends on the unique situation of the linguistic minority in each province.19

Most court actions seeking to enforce section 23 of the Charter have dealt with the right to facilities and the right to management and control. In Mahe, the Supreme Court of Canada held that it is essential for minority-language parents to have a degree of management and control over the educational facilities in which their children are taught, in order to ensure that the language and culture of the linguistic minority in each province survives and flourishes.20 The content of the right to facilities and the right to management and control depends largely on the number of eligible children who may make use of the facilities. For example, in some cases, the right to facilities may require the establishment of separate classes for the minority within a majority school, while in other cases the number of students might warrant the creation of a minority school entirely separate from that of the majority.21 As for the right to management and control, this could mean representation of the minority on a majority school board, while in other cases it could require the existence of a minority school board.22

The guarantees provided by section 23 also include the right to an education of equivalent quality as that provided to members of the linguistic majority:

Section 23 is premised on the fact that substantive equality requires that official language minorities be treated differently, if necessary, according to their particular circumstances and needs, in order to provide them with a standard of education equivalent to that of the official language majority.23

Finally, to ensure respect for minority-language education rights, the courts have had recourse to "specific remedial measures" to correct situations created by government inaction. This was the case in Doucet-Boudreau,24 where the province was found to be in violation of section 23 of the Charter and was ordered to provide French-language teaching facilities within specified deadlines. As part of the remedy in this case, the trial judge retained jurisdiction to receive updates on the implementation of the order issued to the province. The Supreme Court of Canada held that such remedial measures had proven necessary, since the risk of assimilation would continue to increase as long as the government did not fulfill its obligations under section 23 of the Charter.25

Over the two-year period covered by this report, the issue of access to English-language instruction was the subject of two decisions by the Quebec Court of Appeal; the Northwest Territories Supreme Court made several rulings in an ongoing legal battle between the French-language school board and the territorial government; and the Court of Queen’s Bench of New Brunswick had to consider whether the language rights provisions of the Charter offered any protection to French immersion programs in that province.

1.1 Access to English-language education in Quebec

In Quebec, access to English-language schools is protected by section 23(1)(b) and section 23(2) of the Charter.26 Sections 73(1) and (2) of the Charter of the French Language27 (CFL) implement the constitutional right to receive an English-language education in that province:

(1) [...] whose father or mother is a Canadian citizen and received elementary instruction in English in Canada, provided that that instruction constitutes the major part of the elementary instruction he or she received in Canada;

(2) [...] whose father or mother is a Canadian citizen and who has received or is receiving elementary or secondary instruction in English in Canada, and the brothers and sisters of that child, provided that that instruction constitutes the major part of the elementary or secondary instruction received by the child in Canada. [Emphasis added]

In Solski,28 the Supreme Court considered whether section 73(2) of the CFL, which requires that children have completed the "major part" of their education in English in order to obtain certificates of eligibility to attend English-language public schools, was consistent with section 23(2) of the Charter. The Supreme Court determined that the "major part" requirement was consistent with section 23(2) so long as it required a qualitative assessment (rather than a quantitative or strictly mathematical approach) of the child’s overall educational experience. The purpose of a qualitative assessment is to identify the existence or absence of a genuine commitment by the child to pursue a minority-language education. This assessment involves reviewing the child’s situation as a whole, including the time spent in each program, at what stage of education the choice of language of instruction was made, what programs are or were available, and whether learning disabilities or other difficulties exist. The assessment is both subjective and objective. It is subjective in the sense that it requires a review of the child’s particular situation, and objective because the Minister, the Administrative Tribunal of Quebec and the courts must determine if a child’s admission is consistent with the general objectives of section 23(2).29

In 2002, the Quebec legislature adopted Bill 104, An Act to Amend the Charter of the French Language.30 The Act amended, among other things, section 73 of the CFL. This amendment was, in part, a response to the growing trend (although the numbers remained relatively small) of mostly allophone parents enrolling their children in English-language private schools for a brief period of time to gain access to the English public system. The effect of the amendment was to disregard English instruction received by Canadian citizens in unsubsidized schools in Quebec for the purposes of determining their admissibility to English-language public schools. Similarly, English instruction received pursuant to a special authorization was also excluded. Prior to the amendment, English instruction received in an unsubsidized school or pursuant to a special authorization was considered in the calculation of the "major part" requirement.

H.N. v. Québec (Ministre de l’Éducation)31 [Nguyen]

The issue in the Nguyen appeal was whether the exclusion of English instruction received in an unsubsidized school from the calculation of the "major part" requirement violates the appellants’ rights under section 23(2) of the Charter.

In a majority judgment (Hilton J.A. and Dalphond J.A.), the Court of Appeal of Quebec declared the exclusion of English instruction received in an unsubsidized school unconstitutional, and ordered that the requests by the appellants to attend English public school be reconsidered by the competent authorities in accordance with the criteria established in the Solski32 case. Giroux J.A. was dissident. All three judges wrote separate reasons.

A. The majority judgment

In Hilton J.A.’s opinion, insofar as the children of the appellants have received or are receiving English instruction in Canada, it was necessary for the authorities at the Ministry of Education to conduct the qualitative assessment described in the Solski case. According to him, the nature of the instruction received by a child (whether in a subsidized or unsubsidized school) is not a relevant consideration in determining whether a child is eligible for minority-language instruction as guaranteed by section 23(2) of the Charter. Hilton J.A. agreed with the reasoning of Abella J.A., as she was then, in the Abbey33 case, "that it is the fact of receiving the instruction relied on, ‘however it originated,’ that is of importance."34

Hilton J.A. rejected the argument made by the Attorney General of Quebec that the recognition of instruction received in an unsubsidized school would amount to giving citizens of Quebec the freedom to choose the language of instruction for their children. Given that the Solski case has defined the "major part" criterion as requiring the demonstration of a genuine commitment on the part of the child to pursue a minority-language education, Hilton J.A. concluded that attending an English private school for a brief period of time would not necessarily meet the "major part" requirement. Thus, recognizing instruction received in an unsubsidized school does not imply a return to the freedom to choose the language of instruction.

Hilton J.A. also rejected the argument made by the Attorney General of Quebec that a "contextual" approach to section 23 of the Charter (in particular, the fact that section 23(1)(a) of the Charter does not apply in the province of Quebec) would allow section 23(2) to be interpreted as granting rights only to children who received English instruction outside of Quebec. Hilton J.A. found that such an interpretation would "represent a departure from the generous judicial history of section 23, especially in light of the broad and purposive interpretative approach the Supreme Court has consistently mandated, ‘watered down considerably’ though it may be in Quebec."35

Having determined that the exclusion of English instruction received in an unsubsidized school from the calculation of the "major part" requirement was incompatible with section 23(2) of the Charter, Hilton J.A. proceeded with a detailed analysis under section 1 of the Charter to determine whether the exclusion could be justified in a free and democratic society. He came to the conclusion that it could not. Despite the importance of the objective of the amendment (namely the protection and promotion of the French language in Quebec), the impairment of the right in question was not minimal because the impugned measure requires that any and all English instruction received in an unsubsidized school in Quebec be disregarded completely without consideration of other pertinent factors.

For his part, Dalphond J.A. found the absolute prohibition to consider English instruction received in an unsubsidized school was invalid to the extent that it negated the constitutional right for children of Canadian citizens to continue their education in English, whether in public or private schools. In Dalphond J.A.’s opinion, children who receive English instruction in Quebec, whether in a public or private educational institution, "in fact experience the same educational reality."36 [Emphasis in original] Thus, legal attendance at an unsubsidized school must give rise to the same constitutional right as attendance at a public school. For Dalphond J.A., this is especially true in Quebec where the Quebec Charter of Human Rights and Freedoms37 guarantees the right of parents to send their children to private educational institutions.

Dalphond J.A. also specified that the rights set out in section 23(2) of the Charter not only protected those who are traditionally part of the Anglophone minority because of their British heritage, but also new Canadians who have legally received their instruction in English and who, once in Quebec, wish to pursue their education in that language.

Like Hilton J.A., Dalphond J.A. found that the contested measure could not be justified within the meaning of section 1 of the Charter, despite the importance of its objective. According to him, the absolute prohibition to consider English instruction received in an unsubsidized school was not reasonable or proportionate to the objective sought.

B. The dissent

Contrary to Hilton J.A. and Dalphond J.A., Giroux J.A. did not share the opinion that the Solski case offered a complete answer to this appeal. Although he recognized that the situation of the appellants, having pursued English instruction in unsubsidized schools in Quebec, is in perfect accordance with a literal interpretation of section 23(2) of the Charter, it was necessary to set aside such an interpretation.

According to Giroux J.A., by stating that "[t]he application of s. 23 is contextual"38 in the Solski case, the Supreme Court of Canada recognized that "different interpretative approaches may well have to be taken in different jurisdictions, sensitive to the unique blend of linguistic dynamics that have developed in each province."39 In Giroux J.A.’s opinion, Quebec’s particular context requires that section 23 of the Charter be interpreted in such a manner that the latitude given to the province in drafting legislation "must be broad enough to ensure the protection of the French language while satisfying the purposes of s. 23."40

Giroux J.A. stated that the "specific categories of rights holders under section 23 are Canada’s Francophone and Anglophone language groups."41 He recognized that Canadian citizens who are members of other language groups might benefit from section 23(2) of the Charter. However, in his opinion, this should be limited to situations of interprovincial mobility. The fact that the framers of the Constitution specified which groups would be protected under section 23 is the primary reason Dalphond J.A. did not share the opinion that, once Canadian citizenship was acquired, new Canadians were justified in invoking section 23 to challenge the constitutionality of the amendments brought by Bill 104. For Dalphond J.A., although Canadian citizenship is one of the criteria found in section 23, "protection under that section is nonetheless limited to two language groups: Francophones and Anglophones."42

In the result, the majority of the Court found the amendment brought to section 73 of the CFL by Bill 104 to be inconsistent with section 23(2) of the Charter and returned the appellants’ applications to the Ministry of Education for a determination of the applications on behalf of their children under section 73(2) of the CFL in accordance with the factors outlined in Solski.

The Attorney General of Quebec appealed the Court of Appeal decision to the Supreme Court of Canada.43

T.B. v. Québec (Ministre de l’Éducation)44 [Bindra]

The issue in this appeal was whether the exclusion of English instruction pursuant to a special authorization violates the appellants’ rights under section 23(2) of the Charter. The CFL provides that, under certain specific circumstances, a child who does not qualify to attend English public school may be granted special authorization to do so. Those specific circumstances exist when children have serious learning difficulties and instruction in English is required to facilitate the learning process,45 when children are staying in Quebec temporarily46 and where warranted by a serious family or humanitarian situation.47

The Court of Appeal was unanimous in its decision to declare unconstitutional the exclusion of English instruction received pursuant to a special authorization. All three judges agreed that the exclusion was incompatible with section 23 of the Charter and could not be justified within the meaning of section 1 of the Charter. According to Dalphond J.A., in writing for the Court,

[T]he child of a Canadian parent who legally receives his or her public education in English in Quebec in a public or subsidized English-language school, under a certificate of eligibility issued pursuant to section 75(2), 81, 85 or 85.1 CFL, has the same de facto learning experience, regardless of the nature of the exception under section 72 CFL that enables the child to attend that school. The child is entitled under section 23(2) of the Charter to continue his or her learning experience in English.48[Emphasis in original]

At paragraph 60 of his reasons, Dalphond J.A. wrote the following:

By prohibiting the person designated to ascertain eligibility for instruction in English in a public or subsidized institution from considering the instruction received pursuant to a certificate of eligibility issued under section 81, 85 or 85.1 CFL, the last paragraph of section 73 CFL truncates the subject’s real and experienced objective reality, which, in most cases, will mean that the subject is denied access to a right protected by section 23 of the Charter. The violation is serious and I conclude that the last paragraph of section 73 CFL violates section 23 of the Charter.49

In the Solski decision, the Supreme Court of Canada had identified the purpose of section 23(2) of the Charter as threefold: to provide continuity of minority-language education rights, to accommodate mobility and to ensure family unity.50 Given the importance of ensuring the continuity of minority-language education rights and family unity, the Court of Appeal found that the legislator could not grant a ministerial exemption then subsequently disregard the instruction received pursuant to that exemption when it came time to verify the admissibility of a child (or a child’s brother or sister) without contravening the purpose of section 23(2) of the Charter.

The Court found the last paragraph of section 73 of the CFL to be inconsistent with section 23(2) of the Charter, and returned the appellants’ applications to the Ministry of Education for the immediate delivery of a certificate of eligibility.

The Attorney General of Quebec appealed the Court of Appeal decision to the Supreme Court of Canada.51

The Supreme Court held a joint hearing for both the Nguyen and Bindra appeals on December 15, 2008. The Quebec Association of Independent Schools, the Quebec English School Boards Association, the Quebec Provincial Association of Teachers, the Association franco-ontarienne des conseils scolaires catholiques, the Commission scolaire francophone des Territoires du Nord-Ouest, the Attorney General of Canada and the Office of the Commissioner of Official Languages were all granted intervener status before the Supreme Court.



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