SUPREME
COURT OF CANADA
Between:
Roger Gosselin,
Guylaine Fillion, Daniel Trépanier, Claudette Gosselin,
Guy Boulianne,
Johanne Labbé, Alain Chénard, Rachel Guay,
Gilles Maltais,
Guylaine Potvin, Jean‑Marie Martineau,
Mance Bourassa,
Marc Joyal, Marie‑Irma Cadet, René Giguère
and
Lucille Giordano
Appellants
v.
Attorney General
of Québec and Minister of Education
Respondents
‑ and ‑
Commissioner of
Official Languages for Canada
Intervener
Coram:
McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.
Reasons for
Judgment:
(paras. 1 to 36)
|
The Court
|
______________________________
Gosselin
(Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 238, 2005 SCC
15
Roger Gosselin,
Guylaine Fillion, Daniel Trépanier, Claudette Gosselin,
Guy Boulianne,
Johanne Labbé, Alain Chénard, Rachel Guay,
Gilles Maltais,
Guylaine Potvin, Jean‑Marie Martineau,
Mance Bourassa,
Marc Joyal, Marie‑Irma Cadet, René Giguère
and
Lucille Giordano Appellants
v.
Attorney
General of Quebec and Minister of Education Respondents
and
Commissioner
of Official Languages for Canada Intervener
Indexed
as: Gosselin (Tutor of) v. Quebec (Attorney General)
Neutral
citation: 2005 SCC 15.
File
No.: 29298.
2004: March 22;
2005: March 31.
Present: McLachlin
C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.
on appeal from
the court of appeal for quebec
Civil rights — Equality rights — Language of instruction — Members
of French language majority in Quebec not entitled to instruction in English
except under certain circumstances — Whether legislation on English instruction
in Quebec violating equality rights — Whether equality requires that all
children in Quebec be given access to publicly funded English language
education — Whether right to equality opposable to s. 23 of Canadian
Charter of Rights and Freedoms — Charter of the French language, R.S.Q., c. C‑11,
s. 73 — Charter of Human Rights and Freedoms, R.S.Q., c. C‑12,
ss. 10, 12.
Schools — Language of instruction — Instruction in English in Quebec
— Members of French language majority in Quebec not entitled to instruction in
English except under certain circumstances — Whether legislation on English
instruction in Quebec violating equality rights — Charter of the French
language, R.S.Q., c. C‑11, s. 73 — Charter of Human Rights and
Freedoms, R.S.Q., c. C‑12, ss. 10, 12 — Canadian Charter of
Rights and Freedoms, s. 23 .
Section 73 of the Charter of the French language provides
access to English language schools in Quebec only to children who have received
or are receiving English language instruction in Canada or whose parents
studied in English in Canada at the primary level. The appellant parents, who
do not qualify as rights holders under s. 73 or under s. 23 of the Canadian
Charter of Rights and Freedoms , claim that s. 73 discriminates between
children who qualify and the majority of French‑speaking Quebec children
who do not, and violates the right to equality guaranteed at ss. 10 and 12
of the Quebec Charter of Human Rights and Freedoms. Equality requires,
the appellants argue, that all children in Quebec be given access to publicly
funded English language education. Both the Superior Court and the Court of
Appeal dismissed their claims.
Held: The appeal should be dismissed.
Since the appellants are members of the French language majority in
Quebec, their objective in having their children educated in English simply
does not fall within the purpose of s. 23 of the Canadian Charter .
The appellants have no claim to publicly funded English language instruction in
Quebec and, if adopted, the practical effect of their equality argument would
be to read out of the Constitution the compromise contained in s. 23 . [2]
[30]
There is no hierarchy amongst constitutional provisions. Equality
guarantees cannot therefore be used to invalidate other rights expressly
conferred by the Constitution. All parts of the Constitution must be read
together. It cannot be said that in implementing s. 23 , the Quebec
legislature has violated the equality rights contained in either s. 15(1)
of the Canadian Charter or ss. 10 and 12 of the Quebec Charter.
[2]
The purpose of s. 73 is not to “exclude” entire categories of
children from a public service, but rather to implement the positive
constitutional responsibility incumbent upon all provinces to offer minority
language instruction to its minority language community. In seeking to use the
right to equality to access a right guaranteed in Quebec only to the English
language minority, the appellants put aside the linkage between s. 73 of
the Charter of the French language and s. 23 of the Canadian
Charter , and attempt to modify the categories of rights holders under
s. 23 . This is not permissible. Section 23 provides a comprehensive
code for minority language education rights and achieves its purpose of
protecting and promoting the minority language community in each province by
helping to bring about the conditions under which the English community in
Quebec and the French communities of the other provinces can flourish. [10-16]
[22] [28-29]
Cases Cited
Applied: Adler v. Ontario, [1996]
3 S.C.R. 609; Mahe v. Alberta, [1990] 1 S.C.R. 342;
referred to: Solski (Tutor of) v. Quebec (Attorney General),
[2005] 1 S.C.R. 201, 2005 SCC 14; Reference re Use of French in
Criminal Proceedings in Saskatchewan (1987), 36 C.C.C. (3d) 353; Québec
(Procureure générale) v. Entreprises W.F.H. Ltée, [2000] R.J.Q. 1222;
Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987]
1 S.C.R. 1148; Arsenault‑Cameron v. Prince Edward Island,
[2000] 1 S.C.R. 3, 2000 SCC 1; Attorney General of
Quebec v. Quebec Association of Protestant School Boards, [1984]
2 S.C.R. 66; Ontario Home Builders’ Association v. York Region
Board of Education, [1996] 2 S.C.R. 929; Reference re
Secession of Quebec, [1998] 2 S.C.R. 217; Lalonde v.
Ontario (Commission de restructuration des services de santé) (2001),
56 O.R. (3d) 505; Abbey v. Essex County Board of Education
(1999), 42 O.R. (3d) 481; Lavoie v. Nova Scotia (Attorney-General)
(1989), 58 D.L.R. (4th) 293.
Statutes
and Regulations Cited
Act to promote the French language in Québec,
S.Q. 1969, c. 9.
Canadian Charter of Rights and Freedoms, ss.
15(1) , 23 , 25 , 27 , 29 .
Charter of Human Rights and Freedoms,
R.S.Q., c. C-12, ss. 10, 12.
Charter of the French language, R.S.Q., c.
C-11, ss. 72, 73, 75.
Constitution Act, 1867, ss. 91(24) , 93 .
Constitution Act, 1982, s. 35 .
Official Language Act, S.Q. 1974, c. 6, s.
41.
Authors
Cited
Canada. Parliament. Special Joint Committee on
the Constitution of Canada. Minutes of Proceedings and Evidence of the
Special Joint Committee of the Senate and of the House of Commons on the
Constitution of Canada, Issue No. 48, January 29, 1981, p. 108.
APPEAL from a judgment of the Quebec Court of Appeal (Gendreau, Mailhot
and Forget JJ.A.), [2002] R.J.Q. 1298, [2002] Q.J. No. 1126 (QL),
affirming a decision of Laramée J., [2000] R.J.Q. 2973, [2000] Q.J.
No. 4688 (QL). Appeal dismissed.
Brent D. Tyler and Walter C. Elmore,
for the appellants.
Benoît Belleau and Dominique A. Jobin, for
the respondents.
François Boileau and Amélie Lavictoire, for the
intervener.
The following is the judgment delivered by
1
The Court _ In this appeal, the Court is asked
to measure the constitutional right to minority language education against the
right to equality. The appellants claim that the Charter of the French
language, R.S.Q., c. C‑11, which provides access to English language schools
in Quebec only to children who have received or are receiving English language
instruction in Canada or whose parents studied in English in Canada at the
primary level, discriminates between children who qualify and the majority of
French-speaking Quebec children, who do not. The result, the appellants argue,
violates the right to equality guaranteed at ss. 10 and 12 of the Quebec Charter
of Human Rights and Freedoms, R.S.Q., c. C-12. Equality requires, the
appellants argue, that all children in Quebec be given access to publicly
funded English language education.
2
If adopted, the practical effect of the appellants’ equality argument
would be to read out of the Constitution the carefully crafted compromise
contained in s. 23 of the Canadian Charter of Rights and Freedoms .
This is impermissible. As the Court has stated on numerous occasions, there is
no hierarchy amongst constitutional provisions, and equality guarantees cannot
therefore be used to invalidate other rights expressly conferred by the
Constitution. All parts of the Constitution must be read together. It cannot
be said, therefore, that in implementing s. 23 , the Quebec legislature has
violated either s. 15(1) of the Canadian Charter or ss. 10 and
12 of the Quebec Charter. The appeal should therefore be dismissed.
I. The Factual Background
3
The appellants are all parents who reside with their school-age children
in the province of Quebec. With the exception of Lucille Giordano, they are
all Canadian citizens. Furthermore, with the exception of Lucille Giordano and
Marie-Irma Cadet, the appellants were all born in Quebec and received their
instruction in French in Quebec.
4
Four of the families sought admission for their children to English
language schools through the administrative remedies provided under the statute
but without success. The other four families acknowledged that their children
were not eligible. All eight families initiated proceedings in the Superior
Court of Quebec.
II. Judicial History
A. Quebec Superior Court, [2000] R.J.Q.
2973
5
The various proceedings were joined and heard before Laramée J. who
concluded that s. 73 of the Charter of the French language does not
contravene s. 10 of the Quebec Charter. He reasoned that:
[translation]
In the case at bar, using the right to equality under section 10 of the Quebec Charter
of human rights and freedoms to interpret section 73 of the Charter of
the French language would distort the meaning and scope of the education
guarantees provided to Quebec’s Anglophone minority in the Canadian Charter
of Rights and Freedoms . [para. 207]
6
He therefore dismissed all eight actions.
B. Quebec Court of Appeal, [2002]
R.J.Q. 1298
7
In a unanimous judgment, the Court of Appeal (Gendreau, Mailhot and
Forget JJ.A.) dismissed the claims. Relying on Adler v. Ontario, [1996]
3 S.C.R. 609, the court said it is not discriminatory under the Charter of
the French language to implement s. 23 of the Canadian Charter : [translation] “How could the Quebec
legislature’s actions be discriminatory if they are consistent with the Canadian
Charter ?” (para. 27). The Court of Appeal also considered s. 10 of the
Quebec Charter and found that on that basis, too, s. 73 of the Charter
of the French language was not discriminatory.
III. Relevant Legislative and Constitutional
Provisions
8
See Appendix.
IV. Analysis
9
At the outset, we emphasize that the appellant parents do not qualify as
rights holders under s. 23 of the Canadian Charter or s. 73 of the Charter
of the French language. They did not receive their primary school
instruction in Canada in English and their children are receiving or have
received all of their instruction in French in Quebec. Their situation,
therefore, is fundamentally and constitutionally different from that of the
appellants in the companion case, Solski (Tutor of) v. Quebec (Attorney
General), [2005] 1 S.C.R. 201, 2005 SCC 14 (sub nom. Casimir v.
Quebec (Attorney General) (hereinafter Casimir)).
10
The appellants are in a position no different from the majority of
Quebec residents who receive or have received their primary and secondary
instruction in French. Nonetheless, they claim that the categories of rights
holders implemented by the Charter of the French language are
discriminatory and should be reformed to permit them to enrol their children in
English language instruction in Quebec. As members of the French language
majority in Quebec, they seek to use the right to equality to access a right
guaranteed in Quebec only to the English language minority.
11
In this respect, the appellants rely in particular on s. 10 of the
Quebec Charter which expressly includes language as a prohibited ground
of discrimination:
10. Every person has a right to full and equal recognition and
exercise of his human rights and freedoms, without distinction, exclusion or
preference based on race, colour, sex, pregnancy, sexual orientation, civil
status, age except as provided by law, religion, political convictions, language,
ethnic or national origin, social condition, a handicap or the use of any means
to palliate a handicap.
Discrimination exists where such a distinction,
exclusion or preference has the effect of nullifying or impairing such right.
12
Section 15(1) of the Canadian Charter does not expressly
enumerate language as a prohibited ground of discrimination. However, we agree
with the observations of the Saskatchewan Court of Appeal in Reference re
Use of French in Criminal Proceedings in Saskatchewan (1987), 36 C.C.C.
(3d) 353, at p. 373, that:
Nor, in our view, does the presence in the Charter of the language
provisions of ss. 16 to 20, or the deletion from an earlier draft of
s. 15(1) of the word “language”, have the effect necessarily of excluding
from the reach of s. 15 the form of distinction at issue in this case.
In Québec
(Procureure générale) v. Entreprises W.F.H. Ltée, [2000] R.J.Q. 1222, at p.
1250, the Quebec Superior Court held that [translation]
“maternal language” was an analogous ground. It is not necessary
to explore this point further on this appeal because the principal issue is not
the content of the equality rights under the Canadian Charter
but, assuming the appellants have an arguable case to bring themselves within
s. 15(1) of the Canadian Charter , the issue at the root of this
appeal is the relationship of equality rights in both the Canadian
Charter and the Quebec Charter to the positive language guarantees
given to minorities under the Constitution of Canada and the Charter of the
French language.
A. Section 73 of the Charter of the French
Language
13
In advancing their claim, the appellants put aside the linkage between
s. 73 of the Charter of the French language and s. 23 of the Canadian
Charter . Section 23 may be part of the Constitution, they argue, but
s. 73 is not, and like any other statute must comply with equality
guarantees. At the oral hearing, counsel for the appellants argued that:
. . . implementing legislation of a constitutional obligation under 23
does not immunize from judicial review an argument based on the Quebec
Charter of Rights [for] an equal access to existing public institutions
when that is interpreted in the way that we propose.
(Mr. Tyler’s response, oral transcript, at p. 95)
14
We do not agree. The linkage is fundamental to an understanding of the
constitutional issue. Otherwise, for example, any legislation under
s. 91(24) of the Constitution Act, 1867 (“Indians, and Lands
reserved for the Indians”) would be vulnerable to attack as race-based
inequality, and denominational school legislation could be pried loose from its
constitutional base and attacked on the ground of religious discrimination.
Such an approach would, in effect, nullify any exercise of the constitutional
power: Adler, at para. 39; Reference re Bill 30, An Act to amend
the Education Act (Ont.), [1987] 1 S.C.R. 1148, at pp. 1197 and 1206.
15
In the context of minority language education, equality in substance as
opposed to mere formal equality may require differential treatment as
the Court noted in Arsenault-Cameron v. Prince Edward Island, [2000] 1
S.C.R. 3, 2000 SCC 1, at para. 31:
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.
16
The appellants misconceive the objective of s. 73 of the Charter of
the French language when they submit that “[t]he stated purpose and
effect of the provisions of the CFL is to first distinguish and then
exclude entire categories of children from a public service”
(appellants’ factum, at para. 48 (emphasis in original)). The purpose of s. 73
is not to “exclude” but rather to implement the positive constitutional
responsibility incumbent upon all provinces to offer minority language
instruction to its minority language community. It is from this
perspective that the present appeal must be considered.
B. Legislative Background to the Charter of
the French Language
17
There was a time in Quebec’s history when parents had “free access” (in
law, although not always in practice) to either French or English language
instruction for their children. Such access was, of course, subject to
availability. In 1969, the Quebec legislature adopted the Act to promote
the French language in Québec, S.Q. 1969, c. 9 (Bill 63), which affirmed
French as the primary language of instruction and obliged school boards to
offer courses in French. However, it also reaffirmed that parents could
continue to select the language of instruction of their children.
18
For a variety of reasons related to the protection of the French
language and culture, the Quebec legislature, in 1974, revised its policy on
access to English language instruction. The Official Language Act, S.Q.
1974, c. 6 (Bill 22), affirmed French as the language of instruction in
Quebec. To access English language instruction, a child had to demonstrate “a
sufficient knowledge” of the English language (s. 41), which was assessed by
language tests administered by the Ministry of Education. Difficulties
encountered in the administration of language tests prompted the Quebec
legislature again to rethink its policy.
19
In 1977, the Charter of the French language was adopted. At the
time of its inception, ss. 72 and 73 read as follows:
72. Instruction in the kindergarten classes
and in the elementary and secondary schools shall be in French, except where
this chapter allows otherwise.
. . .
73. In derogation of section 72, the
following children, at the request of their father and mother, may receive
their instruction in English:
(a) a child whose father or mother received
his or her elementary instruction in English, in Québec;
(b) a child whose father or mother,
domiciled in Québec on the date of the coming into force of this act, received
his or her elementary instruction in English outside Québec;
(c) a child who, in his last year of school
in Québec before the coming into force of this act, was lawfully
receiving his instruction in English, in a public kindergarten class or in an
elementary or secondary school;
(d) the younger brothers and sisters of a
child described in paragraph c.
After adoption
of the Canadian Charter in 1982, a constitutional challenge was launched
against the 1977 legislation. In Attorney General of Quebec v. Quebec
Association of Protestant School Boards, [1984] 2 S.C.R. 66, our Court
concluded that the categories set out in s. 73 of the Charter of the French
language were underinclusive with reference to s. 23 of the Canadian
Charter , and adopted the view that:
[translation] Section 73
of the Charter of the French language does not limit the right conferred
by s. 23 : rather, it constitutes a permanent alteration of the classes of
citizens who are entitled to the protection afforded by that section. By laying
down conditions of access which run directly counter to those expressly stated
in s. 23 , and which by their very nature have the effect of permanently
depriving an entire class of individuals of the right conferred by s. 23 , s. 73
alters the very content of that right. . . . [p. 87]
The
constitutional deficiency resulted precisely from the absence of a provincial
geographical limitation from s. 23 of the Canadian Charter .
20
Following the successful court challenge to the 1977 Act, s. 23 of the Canadian
Charter directly governed access to English instruction in Quebec from 1984
to 1993. However, in 1993, the Quebec legislature re-enacted ss. 72 and 73 of
the Charter of the French language in light of this Court’s decision in Quebec
Association of Protestant School Boards. In the companion appeal of Casimir,
we consider the constitutional challenge to the amended s. 73 of the Charter
of the French language.
C. The Right to Equality Is Not Opposable to
Section 23 of the Canadian Charter
21
In Mahe v. Alberta, [1990] 1 S.C.R. 342, this Court explained
that any analysis of minority language instruction must take as its starting
point the guarantees provided in s. 23 in the Canadian Charter . The
reasoning found at p. 369 of the reasons of the Chief Justice in Mahe
apply here with equal force:
Section 23 provides a comprehensive code for minority language
educational rights; it has its own internal qualifications and its own method
of internal balancing. A notion of equality between Canada’s official language
groups is obviously present in s. 23 . Beyond this, however, the section is,
if anything, an exception to the provisions of ss. 15 and 27 in that
it accords these groups, the English and the French, special status in
comparison to all other linguistic groups in Canada. . . . [I]t would
be totally incongruous to invoke in aid of the interpretation of a provision
which grants special rights to a select group of individuals, the principle of
equality intended to be universally applicable to “every individual”. [Emphasis
added.]
As noted
earlier, s. 23 could also be viewed not as an “exception” to equality
guarantees but as their fulfilment in the case of linguistic minorities to make
available an education according to their particular circumstances and needs
equivalent to the education provided to the majority (Arsenault-Cameron,
at para. 31).
22
The appellants in this case are attempting to accomplish precisely that
which Mahe said was prohibited, namely the use of equality guarantees to
modify the categories of rights holders under s. 23 . The attempt was rejected
in Mahe, albeit in different circumstances, and should be rejected again
in this appeal.
D. There Is No Hierarchy of Constitutional
Rights
23
On a number of occasions, this Court has been called upon to evaluate
the impact of s. 15 of the Canadian Charter on other sections of the
Constitution. In Adler, the right to equality was measured against the
guarantees with respect to denominational schools provided for by s. 93 of
the Constitution Act, 1867 :
93. In and for each Province the
Legislature may exclusively make Laws in relation to Education, subject and
according to the following Provisions: _
(1) Nothing in any such Law shall
prejudicially affect any Right or Privilege with respect to Denominational
Schools which any Class of Persons have by Law in the Province at the Union:
. . .
24
In Adler, the Court held that s. 93(1) had the effect of
constitutionally entrenching “a special status for such classes of persons,
granting them rights which are denied to others” (para. 25). Section 93
provided a “comprehensive code” of denominational school rights. The equality
claim failed “because the funding of Roman Catholic separate schools and public
schools is within the contemplation of the terms of s. 93 and is, therefore,
immune from Charter scrutiny” (para. 27). Drawing an analogy with s. 23
of the Canadian Charter and the reasoning of the Court in Mahe,
Iacobucci J. concluded that “both sections grant special status to particular
classes of people” (para. 32).
25
Counsel supporting the appellants attempted to distinguish the
denominational schools question at issue in Adler from the minority
language education rights at issue in the present case on the basis that in
this case there is no precise equivalent to s. 29 of the Canadian
Charter , which provides:
29. Nothing in this Charter abrogates
or derogates from any rights or privileges guaranteed by or under the
Constitution of Canada in respect of denominational, separate or dissentient
schools.
The argument
is that to the extent s. 29 was the foundation of the decision in Adler,
and since there is no equivalent clause for minority language instruction, the
equality guarantee of the Quebec Charter is to be given paramountcy.
26
We disagree. The attempt to give equality guarantees a superior status
in a “hierarchy” of rights must be rejected. It will be recalled that in Reference
re Bill 30, An Act to amend the Education Act (Ont.), the Court held that
s. 29 was included in the Canadian Charter “only for greater
certainty”. Wilson J. stated, at pp. 1197-98:
I have indicated that the rights or privileges protected by s. 93(1)
are immune from Charter review under s. 29 of the Charter. I
think this is clear. What is less clear is whether s. 29 of the Charter was
required in order to achieve that result. In my view, it was not. I
believe it was put there simply to emphasize that the special treatment
guaranteed by the constitution to denominational, separate or dissentient
schools, even if it sits uncomfortably with the concept of equality embodied in
the Charter because not available to other schools, is nevertheless not
impaired by the Charter. It was never intended, in my opinion, that the Charter
could be used to invalidate other provisions of the Constitution,
particularly a provision such as s. 93 which represented a fundamental part of
the Confederation compromise. Section 29 , in my view, is present in the Charter
only for greater certainty, at least in so far as the Province of
Ontario is concerned. [Emphasis added.]
See also Ontario
Home Builders’ Association v. York Region Board of Education, [1996] 2
S.C.R. 929, at paras. 76-77.
27
The absence of a provision similar to s. 29 for minority language
instruction therefore does not assist the appellants. Equality rights, while
of immense importance, constitute just part of our constitutional fabric. In Reference
re Secession of Quebec, [1998] 2 S.C.R. 217, the protection of minorities
was also identified as a key principle, manifested in part in minority language
education rights (s. 23 of the Canadian Charter ), denominational
school rights (s. 93 of the Constitution Act, 1867 ) and aboriginal
and treaty rights (ss. 25 of the Canadian Charter and 35 of the Constitution
Act, 1982 ). The Court stated:
. . . even though those provisions were the product of
negotiation and political compromise, that does not render them unprincipled.
Rather, such a concern reflects a broader principle related to the protection
of minority rights. [para. 80]
See also Lalonde
v. Ontario (Commission de restructuration des services de santé) (2001), 56
O.R. (3d) 505 (C.A.), at para. 101.
E. Implementation of Minority Language
Instruction in Quebec
28
The purpose of s. 23 is the protection and promotion of the minority
language community in each province. Section 23 is of prime importance given
“the vital role of education in preserving and encouraging linguistic and
cultural vitality. It thus represents a linchpin in this nation’s commitment to
the values of bilingualism and biculturalism” (Mahe, at p. 350).
29
Section 23 achieves its purpose by ensuring that the English community
in Quebec and the French communities of the other provinces can flourish. As
this Court said in Mahe, at p. 362, “[t]he section aims at achieving
this goal by granting minority language educational rights to minority
language parents throughout Canada” (emphasis added). This goal is quite
distinct from the offering of minority language instruction to the majority, as
was made clear during the constitutional debates when the then Minister of
Justice, Jean Chrétien, addressed the Special Joint Committee hearings:
We are not determining education for the
majority, but for the minorities.
The fact that many anglophones now take advantage
of immersion courses which have become very popular in Manitoba, Alberta,
Saskatchewan, British Columbia etc., pleases me immensely; and it is the
provinces that run these programs. Here, in the charter, we aim to protect the
rights of the minority. [Emphasis added.]
(Minutes of Proceedings and Evidence of the Special Joint Committee
of the Senate and of the House of Commons on the Constitution of Canada,
Issue No. 48, January 29, 1981, at p. 108)
30
The appellants are members of the French language majority in Quebec
and, as such, their objective in having their children educated in English
simply does not fall within the purpose of s. 23 . The Ontario Court of Appeal
in Abbey v. Essex County Board of Education (1999), 42 O.R. (3d) 481, at
pp. 488-89, said, with respect to Ontario, that “[a]nglophone parents in
Ontario do not have a constitutional right to have their children educated in
French as a matter of choice. Their children cannot be admitted to a French
language school unless an admissions committee, controlled by members of the
minority group, grants them access.” See also Lavoie v. Nova Scotia
(Attorney-General) (1989), 58 D.L.R. (4th) 293 (N.S.S.C. (App. Div.)), at
pp. 313‑15. And so it is with the parents who belong to the majority
language community in Quebec.
31
In rejecting “free access” as the governing principle in s. 23 , the
framers of the Canadian Charter were concerned about the consequences of
permitting members of the majority language community to send
their children to minority language schools. The concern at the
time (which the intervener, the Commissioner of Official Languages for Canada,
submitted is a continuing concern today) was that at least outside Quebec
minority language schools would themselves become centres of assimilation if
members of the majority language community swamped students from the minority
language community. Within Quebec, the problem has the added dimension that
what are intended as schools for the minority language community should not
operate to undermine the desire of the majority to protect and enhance French
as the majority language in Quebec, knowing that it will remain the minority
language in the broader context of Canada as a whole. In the companion appeal Casimir,
at paras. 49-50, we examine some of the concerns that would arise if minority
language schools become the functional equivalents of immersion programs for
the majority language community in Quebec. We also took care in Casimir
“to emphasize that the application of s. 23 must take into account the
very real differences between the situation of the minority language community
in Quebec and the minority language communities in the territories and other provinces”
(para. 44). If the problems are different, the solutions will not necessarily
be the same.
32
Practical concerns include the management and control of minority
language schools. In Mahe, at p. 372, our Court explained the
importance of retaining control in the hands of the minority:
Furthermore, as the historical context in which s.
23 was enacted suggests, minority language groups cannot always rely upon
the majority to take account of all of their linguistic and cultural concerns.
Such neglect is not necessarily intentional: the majority cannot be expected to
understand and appreciate all of the diverse ways in which educational
practices may influence the language and culture of the minority.
A provincial
government that provided equal access to all citizens to minority language
schools would not be “do[ing] whatever is practically possible to preserve and
promote minority language education” (Arsenault-Cameron, at para. 26).
33
In short, as Dickson C.J. observed in Mahe, at p. 369:
. . . it would be totally incongruous to invoke in aid of the
interpretation of a provision which grants special rights to a select group of
individuals, the principle of equality intended to be universally applicable to
“every individual”.
34
Practical reasons as well as legal principle support the conclusion that
s. 23 minority language education rights cannot be subordinated to the
equality rights guarantees relied upon by the appellants.
V. Conclusion
35
For the reasons outlined above, the appellants have no claim to publicly
funded English language instruction in Quebec.
36
Their appeal is dismissed with costs (if demanded).
APPENDIX
Canadian
Charter of Rights and Freedoms
15. (1) Every individual is equal before and
under the law and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without discrimination based
on race, national or ethnic origin, colour, religion, sex, age or mental or
physical disability.
. . .
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.
. . .
27. This Charter shall be interpreted
in a manner consistent with the preservation and enhancement of the
multicultural heritage of Canadians.
29. Nothing in this Charter abrogates
or derogates from any rights or privileges guaranteed by or under the
Constitution of Canada in respect of denominational, separate or dissentient
schools.
Charter of
the French language, R.S.Q., c. C‑11
72. Instruction in the kindergarten classes and in the
elementary and secondary schools shall be in French, except where this chapter
allows otherwise.
This rule obtains in school bodies within the
meaning of the Schedule and in private educational institutions accredited for
purposes of subsidies under the Act respecting private education (chapter E‑9.1)
with respect to the educational services covered by an accreditation.
Nothing in this section shall preclude instruction
in English to foster the learning thereof, in accordance with the formalities
and on the conditions prescribed in the basic school regulations established by
the Government under section 447 of the Education Act (chapter I‑13.3).
73. The following children, at the request of one of their
parents, may receive instruction in English:
(1) a child 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) a child 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;
(3) a child whose father and mother are not
Canadian citizens, but whose father or mother received elementary instruction
in English in Québec, provided that that instruction constitutes the major part
of the elementary instruction he or she received in Québec;
(4) a child who, in his last year in school
in Québec before 26 August 1977, was receiving instruction in English in a
public kindergarten class or in an elementary or secondary school, and the
brothers and sisters of that child;
(5) a child whose father or mother was
residing in Québec on 26 August 1977 and had received elementary instruction in
English outside Québec, provided that that instruction constitutes the major
part of the elementary instruction he or she received outside Québec.
However, instruction in English received in Québec
in a private educational institution not accredited for the purposes of
subsidies by the child for whom the request is made, or by a brother or sister
of the child, shall be disregarded. The same applies to instruction in English
received in Québec in such an institution after 1 October 2002 by the father or
mother of the child.
Instruction in English received pursuant to a
special authorization under section 81, 85 or 85.1 shall also be disregarded.
75. The Minister of Education may empower such persons as he
may designate to verify and decide on children’s eligibility for instruction in
English under any of sections 73, 81, 85 and 86.1.
Charter of
Human Rights and Freedoms, R.S.Q., c. C‑12
10. Every person has a right to full and equal recognition and
exercise of his human rights and freedoms, without distinction, exclusion or
preference based on race, colour, sex, pregnancy, sexual orientation, civil
status, age except as provided by law, religion, political convictions,
language, ethnic or national origin, social condition, a handicap or the use of
any means to palliate a handicap.
Discrimination exists where such a distinction,
exclusion or preference has the effect of nullifying or impairing such right.
12. No one may, through discrimination, refuse to make a
juridical act concerning goods or services ordinarily offered to the public.
Appeal dismissed with costs.
Solicitor for the appellants: Brent D. Tyler,
Montréal.
Solicitors for the respondents: Bernard, Roy &
Associés, Montréal; Department of Justice, Montréal.
Solicitor for the intervener: Office of the Commissioner
of Official Languages for Canada, Ottawa.