SUPREME
COURT OF CANADA
Between:
Edwidge Casimir
Appellant
v.
Attorney General
of Quebec
Respondent
‑ and ‑
Attorney General
of Canada, Fédération nationale des conseillères
et conseillers
scolaires francophones, Commission nationale des
parents
francophones, Commissioner of Official Languages for Canada,
Association franco‑ontarienne
des conseils scolaires catholiques,
Association des
conseillers(ères) des écoles publiques de l’Ontario,
Fédération des
communautés francophones et acadiennes du Canada
and Fédération des
associations de juristes d’expression française de
common law inc.
Interveners
Coram:
McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps and Fish JJ.
Reasons for
Judgment:
(paras. 1 to 61)
|
The Court
|
______________________________
Solski (Tutor
of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201, 2005 SCC 14
Edwidge Casimir Appellant
v.
Attorney
General of Quebec Respondent
and
Attorney
General of Canada, Fédération nationale des conseillères
et
conseillers scolaires francophones, Commission nationale des
parents
francophones, Commissioner of Official Languages for Canada,
Association
franco‑ontarienne des conseils scolaires catholiques,
Association
des conseillers(ères) des écoles publiques de l’Ontario,
Fédération
des communautés francophones et acadiennes du Canada
and
Fédération des associations de juristes d’expression française de
common law
inc. Interveners
Indexed
as: Solski (Tutor of) v. Quebec (Attorney General)
Neutral
citation: 2005 SCC 14.
File
No.: 29297.
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
Constitutional law — Charter of Rights — Minority language education
rights — Claimants’ children declared not eligible for public instruction in
English in Quebec because children had not completed “major part” of their
education in English as required by s. 73(2) of Charter of the French
language — Whether “major part” requirement set out in s. 73(2)
inconsistent with s. 23(2) of Canadian Charter of Rights and Freedoms .
Schools — Language of instruction — Instruction in English in Quebec
— Claimants’ children declared not eligible for public instruction in English
in Quebec because children had not completed “major part” of their education in
English as required by s. 73(2) of Charter of the French language —
Whether “major part” requirement set out in s. 73(2) constitutional — Canadian
Charter of Rights and Freedoms, s. 23(2) .
S, C and L requested certificates of eligibility to allow their
children to attend English‑language public schools in Quebec. The
requests were denied by the Minister of Education’s designated person on the
ground that the children had not completed the “major part” of their
instruction in English as required by s. 73(2) of the Charter of the
French language. In the cases of S and L, this decision was upheld by the
review committee and the Administrative Tribunal of Québec. Concurrently with
the proceeding before the Administrative Tribunal, S sought declaratory relief
in the Superior Court. The court declared s. 73(2) to be inconsistent
with s. 23(2) of the Canadian Charter of Rights and Freedoms to the
extent that it limited the category of persons eligible to receive minority
language education. The Attorney General of Quebec appealed that decision. S
decided not to contest the appeal, and the Court of Appeal authorized C and L
to intervene. The Court of Appeal set aside the Superior Court’s decision,
concluding that the “major part” requirement set out in s. 73(2) was
constitutional.
Held: The appeal should be allowed in part. C’s and
L’s children were eligible for English education in Quebec. Properly
interpreted, s. 73(2) of the Charter of the French language is
constitutional.
The minority language education rights entrenched in s. 23 of the Canadian
Charter are national in scope and remedial in nature. They must be
interpreted in a broad and purposive manner consistent with the preservation
and promotion of both official language communities. The application of
s. 23 is contextual and must take into account the differences between the
situations of the minority language community in Quebec and the minority
language communities of the territories and the other provinces. In Quebec,
the latitude given to the provincial government in drafting legislation
regarding education must be broad enough to ensure the protection of the French
language while satisfying the purposes of s. 23 . [20-21] [34]
The specific purpose of s. 23(2) of the Canadian Charter is
to provide continuity of minority language education rights, to accommodate
mobility and to ensure family unity. In order to comply with s. 23(2) , the
“major part” requirement set out in s. 73(2) of the Charter of the
French language must involve a qualitative rather than a strict
quantitative assessment of the child’s educational experience. The child’s
past and present educational experience is the best indicator of genuine
commitment to a minority language education. The qualitative assessment will
determine if a significant part, though not necessarily the majority, of the
child’s instruction, considered cumulatively, was in the minority language.
The focus of the assessment is both subjective, in that it is necessary to
examine all the circumstances of the child, and objective, in that the
Minister, the Administrative Tribunal of Québec and the courts must determine
whether the admission of a particular child is, in light of his or her personal
circumstances and educational experience, consistent with the general purposes
of s. 23(2) . While there is nothing in the language of s. 23(2) that
strictly restricts the nature of the instruction, it would be contrary to the
purpose of the provision to equate immersion programs with minority language
education. [28] [30] [50]
To purposefully assess the requirement for participation in
s. 23(2) , therefore, all the circumstances of the child must be considered
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 relevance of
each factor will vary with the facts of each case and other factors may also
arise depending on the circumstances of the particular child and his or her
educational experience. [33] [38]
Once a commitment to instruction in the minority language is shown on
the facts of the case, the purpose of s. 23(2) is engaged. If children
are in a recognized education program regularly and legally, they will in most
instances be able to continue their education in the same language. This is
consistent with the wording of s. 23(2) and the purposes of protecting and
preserving the minority‑language community, as well as with the reality
that children properly enrolled in minority‑language schools are entitled
to a continuous learning experience and should not be uprooted and sent to
majority‑language schools, which would not be in the interest of the
minority language community or of the child. Nevertheless, a qualitative
assessment of the situation to determine whether there is evidence of a genuine
commitment to a minority‑language educational experience is warranted,
with each province exercising its discretion in light of its particular
circumstances, obligation to respect the objectives of s. 23 , and
educational policies. [42] [47]
The qualification of unsubsidized private schools and education
received in English pursuant to temporary stay certificates was raised. Quebec
must be considered to have accepted to take education received under those
conditions into account under s. 73(2) of the Charter of the French
language prior to the adoption of Bill 104 (S.Q. 2002, c. 28),
which determines it will henceforth be disregarded. The constitutionality of
Bill 104 is not before the Court and will not be dealt with. [51]
In this case, a qualitative assessment of the educational experience of
C’s and L’s children indicates that they are entitled to English instruction in
Quebec pursuant to s. 73(2). A reading down of s. 73(2) — by
qualitatively defining the “major part” requirement set out in that section as
meaning a “significant part” — permits Quebec to meet its legislative
objectives, while ensuring that no persons eligible under s. 23(2) are
excluded from minority‑language schools if they choose to attend them.
[52] [59-60]
Cases Cited
Referred to: Reference re Secession of Quebec,
[1998] 2 S.C.R. 217; Mahe v. Alberta, [1990]
1 S.C.R. 342; Ford v. Quebec (Attorney General), [1988]
2 S.C.R. 712; Doucet‑Boudreau v. Nova Scotia (Minister of
Education), [2003] 3 S.C.R. 3, 2003 SCC 62; Arsenault‑Cameron
v. Prince Edward Island, [2000] 1 S.C.R. 3, 2000 SCC 1;
Lavigne v. Canada (Office of the Commissioner of Official Languages),
[2002] 2 S.C.R. 773, 2002 SCC 53; Attorney General of
Quebec v. Quebec Association of Protestant School Boards, [1984]
2 S.C.R. 66; Reference re Public Schools Act (Man.),
s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Okwuobi v.
Lester B. Pearson School Board, [2005] 1 S.C.R. 257, 2005 SCC 16;
Adler v. Ontario, [1996] 3 S.C.R. 609; R. v. Beaulac,
[1999] 1 S.C.R. 768; Affaires sociales — 288, [1999]
T.A.Q. 269; S.A. v. Comité de révision sur la langue d’enseignement,
[2001] T.A.Q. 935; J.B. v. Comité de révision sur la langue
d’enseignement, [2002] T.A.Q. 15; Clark v. Canadian National
Railway Co., [1988] 2 S.C.R. 680; Derrickson v. Derrickson,
[1986] 1 S.C.R. 285; R. v. Sharpe, [2001]
1 S.C.R. 45, 2001 SCC 2.
Statutes
and Regulations Cited
Act to amend the Charter of the French language,
S.Q. 2002, c. 28, s. 3.
Act to promote the French language in Québec,
S.Q. 1969, c. 9.
Canadian Charter of Rights and Freedoms, ss.
1 , 15 , 16 to 23 , 23 , 27 .
Charter of the French language, R.S.Q., c.
C-11, ss. 72, 73, 75, 85.
Constitution Act, 1867, s. 133 .
Constitution Act, 1982, s. 59 .
Official Languages Act, R.S.C. 1985, c. 31
(4th Supp .).
Official Languages of New Brunswick Act,
S.N.B. 1969, c. 14.
Regulation respecting the exemption from the
application of the first paragraph of section 72 of the Charter of the French
language that may be granted to children staying in Québec temporarily,
(1997) 129 G.O. II, 1970.
Authors
Cited
Bastarache, Michel. “Introduction”, in Michel
Bastarache, ed., Language Rights in Canada, 2nd ed. Cowansville: Yvon
Blais, 2004, 1.
Braën, André. “Les droits scolaires des minorités
de langue officielle au Canada et l’interprétation judiciaire” (1988), 19 R.G.D.
311.
Canada. House of Commons. House of Commons
Debates, vol. III, 1st Sess., 32nd Parl., October 6, 1980, p. 3286.
Foucher, Pierre. “Language Rights and Education”,
in Michel Bastarache, ed., Language Rights in Canada. Translated by
Translation Devinat et Associés. Montréal: Yvon Blais, 1987, 255.
Foucher, Pierre. “Les droits scolaires des
minorités linguistiques”, in Gérald-A. Beaudoin and Errol Mendes, eds., The
Canadian Charter of Rights and Freedoms , 3rd ed. Scarborough, Ont.:
Carswell, 1996, 16-1.
Hogg, Peter W. Constitutional Law of Canada,
4th ed. Scarborough, Ont.: Carswell, 1997.
Proulx, Jean-Pierre. “Les normes périjuridiques
dans l’idéologie québécoise et canadienne en matière de langue d’enseignement”
(1988), 19 R.G.D. 209.
Ryan, Claude. “L’impact de la Charte canadienne
des droits et libertés sur les droits linguistiques au Québec”, [2003] R.
du B. (numéro spécial) 543.
Sullivan, Ruth. Sullivan and Driedger on the
Construction of Statutes, 4th ed. Markham, Ont.: Butterworths, 2002.
APPEAL from a judgment of the Quebec Court of Appeal (Gendreau, Mailhot
and Forget JJ.A.), [2002] R.J.Q. 1285, [2002] Q.J. No. 1127
(QL), setting aside a decision of Grenier J., [2001] R.J.Q. 218,
[2000] Q.J. No. 5789 (QL). Appeal allowed in part.
Brent D. Tyler and Walter C. Elmore,
for the appellant.
Benoît Belleau, Dominique A. Jobin and Carole Soucy,
for the respondent.
Claude Joyal and Marc Tremblay, for the
intervener the Attorney General of Canada.
Colin K. Irving and Douglas Mitchell, for
the intervener the Commissioner of Official Languages for Canada.
Michel Doucet and Christian E. Michaud,
for the interveners Fédération nationale des conseillères et conseillers
scolaires francophones and Commission nationale des parents francophones.
Michelle Vaillancourt, Margot Blight and Mark C. Power,
for the interveners Association franco‑ontarienne des conseils scolaires
catholiques and Association des conseillers(ères) des écoles publiques de
l’Ontario.
Ronald F. Caza and Joël M. Dubois,
for the interveners Fédération des communautés francophones et acadiennes du
Canada and Fédération des associations de juristes d’expression française de
common law inc.
The following is the judgment delivered by
1
The Court — The issue in
this case is whether the Quebec legislature’s attempt to define the categories
of rights holders provided for under s. 23 of the Canadian Charter of Rights
and Freedoms by means of the “major part” requirement set out in s. 73 of
Quebec’s Charter of the French language, R.S.Q., c. C-11 (“CFL”),
is an unconstitutional restriction of these rights. In our view, it is not; the
term “major” must however be read so that it is given a “qualitative” meaning
rather than a “quantitative” meaning. We would consequently allow the appeal
in part.
I. Overview
2
The protection of minority language rights by s. 23 of the Canadian
Charter is an integral part of the broader protection of minority rights, a
principle recognized as foundational to Canada’s Constitution in Reference
re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 79. Minority
language rights are fundamental because “[l]anguage is more than a mere means
of communication, it is part and parcel of the identity and culture of the
people speaking it”: Mahe v. Alberta, [1990] 1 S.C.R. 342, at p.
362; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp.
748-49. The constitutional protection of minority language rights is necessary
for the promotion of robust and vital minority language communities which are
essential for Canada to flourish as a bilingual country.
3
Education rights play a fundamental role in promoting and preserving
minority language communities. Indeed, “[m]inority language education rights
are the means by which the goals of linguistic and cultural preservation are
achieved”: Doucet-Boudreau v. Nova Scotia (Minister of Education),
[2003] 3 S.C.R. 3, 2003 SCC 62, at para. 26; see also Arsenault-Cameron v.
Prince Edward Island, [2000] 1 S.C.R. 3, 2000 SCC 1, at para. 26; Mahe,
at pp. 363-64. Minority language education is a requisite tool to encourage
linguistic and cultural vitality. Not only do minority schools provide basic
language education, they also act as community centres where the members of the
minority can meet to express their culture. Thus, the education rights provided
by s. 23 form the cornerstone of minority language rights protection.
II. Origin and Role of Section 23 of the Canadian
Charter
4
Before ss. 16 to 23 of the Canadian Charter came into force,
s. 133 of the Constitution Act, 1867 already contained a
rudimentary language rights scheme. In addition, legislation that was quite
broad in scope, although it did not have constitutional status, had been
implemented by the federal government and by a number of provinces: this
legislation included the Official Languages Act, R.S.C. 1985, c. 31
(4th Supp .), enacted by the Parliament of Canada in 1969; the CFL in
Quebec and the Official Languages of New Brunswick Act, S.N.B. 1969,
c. 14 (see M. Bastarache, “Introduction”, in M. Bastarache, ed., Language
Rights in Canada (2nd ed. 2004), 1, at pp. 21‑23). These
legislative schemes govern situations in which not only individual rights, but
also the existence of language communities and the manner in which those
communities perceive their future, are in issue.
5
Owing to the existence of these two levels of social and legal
relationships, the establishment of rules to govern language rights is a
sensitive issue. First, the members of the minority communities and their
families, in every province and territory, must be given the opportunity to
achieve their personal aspirations. Second, on the collective level, these
language issues are related to the development and existence of the
English-speaking minority in Quebec and the French-speaking minorities
elsewhere in Canada. They also inevitably have an impact on how Quebec’s
French-speaking community perceives its future in Canada, since that community,
which is in the majority in Quebec, is in the minority in Canada, and even more
so in North America as a whole. To this picture must be added the serious
difficulties resulting from the rate of assimilation of French-speaking
minority groups outside Quebec, whose current language rights were acquired
only recently, at considerable expense and with great difficulty. Thus, in
interpreting these rights, the courts have a responsibility to reconcile
sometimes divergent interests and priorities, and to be sensitive to the future
of each language community. Our country’s social context, demographics and
history will therefore necessarily comprise the backdrop for the analysis of
language rights. Language rights cannot be analysed in the abstract, without
regard for the historical context of the recognition thereof or for the
concerns that the manner in which they are currently applied is meant to
address.
6
The very presence of s. 23 in the Canadian Charter attests
to the recognition, in our country’s Constitution, of the essential role played
by the two official languages in the formation of Canada and in the country’s
contemporary life (Lavigne v. Canada (Office of the Commissioner of Official
Languages), [2002] 2 S.C.R. 773, 2002 SCC 53, at para. 22). It also
confirms that the need and desire to ensure that language communities continue
to exist and develop represented one of the primary objectives of the language
rights scheme that has gradually been implemented in Canada. Although the
process of recognizing and defining those rights has at times been marked by
difficulties and conflicts, some of which are still before the courts today,
the presence of two distinct language communities in Canada and the desire to
reserve an important place for them in Canadian life constitute one of the
foundations of the federal system that was created in 1867, as this Court
observed in Reference re Secession of Quebec, at para. 59:
The principle of federalism facilitates the pursuit
of collective goals by cultural and linguistic minorities which form the
majority within a particular province. This is the case in Quebec, where the
majority of the population is French‑speaking, and which possesses a
distinct culture. This is not merely the result of chance. The social and
demographic reality of Quebec explains the existence of the province of Quebec
as a political unit and indeed, was one of the essential reasons for
establishing a federal structure for the Canadian union in 1867. The experience
of both Canada East and Canada West under the Union Act, 1840 (U.K.), 3‑4
Vict., c. 35, had not been satisfactory. The federal structure adopted at
Confederation enabled French‑speaking Canadians to form a numerical
majority in the province of Quebec, and so exercise the considerable provincial
powers conferred by the Constitution Act, 1867 in such a way as to
promote their language and culture. It also made provision for certain
guaranteed representation within the federal Parliament itself.
7
Section 23, which is linked to the broader principle of protection of
minority rights that was recognized by this Court in Reference re Secession
of Quebec as one of the fundamental principles of the Canadian
Constitution, reflects a common desire to protect Canada’s English- and
French-speaking minorities, and to promote their development. Any broad
guarantee of language rights attests to a fundamental respect for and interest
in the cultures that are expressed by the protected languages (Mahe, at
p. 362). Thus, the recognition of rights to minority language instruction
contributes to the preservation of the minority language and culture, as well
as of the minority group itself (Doucet‑Boudreau, at
para. 26). With this in mind, this Court has been sensitive to the
concerns, and the language dynamics, of Quebec, where a majority of the members
of Canada’s French-speaking minority is concentrated (see, for example: Attorney
General of Quebec v. Quebec Association of Protestant School Boards, [1984]
2 S.C.R. 66, at p. 82; Ford, at pp. 777-78; Reference re Public
Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, at p. 851).
8
When the Canadian Constitution was patriated, the adoption of s. 23
of the Canadian Charter confirmed the framers’ intention to guarantee
rights to instruction that were, in principle, identical for all of Canada’s
minority language groups (Arsenault‑Cameron, at para. 26).
However, that principle was watered down considerably in the case of Quebec:
s. 59 of the Constitution Act, 1982 provides that s. 23(1) (a)
does not apply in Quebec. It may come into force only with the authorization
of the National Assembly or the Quebec Government. To date, such authorization
has not been given. To this extent, s. 59 limits the classes of rights
holders in Quebec to those described in ss. 23(1) (b) and 23(2) (Quebec
Association of Protestant School Boards, at p. 82). By so defining the
classes of rights holders, which are in theory uniform throughout Canada but
are limited in Quebec by the effect of s. 59 , the framers also rejected
the freedom to choose the language of instruction in Quebec (P. Foucher,
“Language Rights and Education”, in M. Bastarache, ed., Language Rights
in Canada (1987), 255, at p. 263; J.-P. Proulx, “Les normes
périjuridiques dans l’idéologie québécoise et canadienne en matière de langue
d’enseignement” (1988), 19 R.G.D. 209, at p. 219; A. Braën, “Les
droits scolaires des minorités de langue officielle au Canada et
l’interprétation judiciaire” (1988), 19 R.G.D. 311, at pp. 317 and
319).
9
The current wording of s. 23 undoubtedly reflects the difficulties
encountered in the discussions and negotiations that led up to the patriation
of the Canadian Constitution in 1982. In formulating those constitutional
rights, the framers could not turn a deaf ear to the recognition sought by
Francophones outside Quebec for substantive equality in education. It was also
impossible to ignore the concern felt by Quebec’s Anglophone minority as a
result of the language disputes arising out of the “Quiet Revolution”, which
had culminated in the enactment of the CFL. Finally, the anxiety of a
significant segment of Quebec Francophones about the future of their language
was a known fact, if only because of the upheavals it had caused in Canadian
politics, and even more so in Quebec politics. This Court in fact acknowledged
the existence of this fear among Quebec Francophones that their mother tongue
would disappear when, in a case involving the legislation regarding the
language of signs, it analysed, under s. 1 of the Canadian Charter ,
the evidence submitted by the parties to demonstrate that the legislation
had a serious and legitimate purpose (Ford, at p. 778).
10
Indeed, federalism still plays an important role in the application of
s. 23 . As education falls within the purview of provincial power, each
province has a legitimate interest in the provision and regulation of minority
language education: Arsenault-Cameron, at para. 53. Nevertheless, with
the exception of s. 23(1)(a) in Quebec, all provincial minority language
education regimes must be consistent with the requirements of s. 23 of the Canadian
Charter . As the Court noted in Arsenault-Cameron, “[a]lthough
the Minister is responsible for making educational policy, his discretion is
subordinate to the Charter ” (para. 40).
11
It is our view that s. 73(2) of the CFL can be interpreted to
conform with s. 23(2) of the Charter .
III. Relevant Constitutional and Statutory
Provisions
12
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.
Canadian
Charter of Rights and Freedoms
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.
Constitution
Act, 1982
59. (1) Paragraph 23(1)(a) shall come into force in
respect of Quebec on a day to be fixed by proclamation issued by the Queen or
the Governor General under the Great Seal of Canada.
(2) A proclamation under subsection (1) shall be issued only where
authorized by the legislative assembly or government of Quebec.
.
. .
IV. Facts
13
The judgment of the Quebec Court of Appeal from which this appeal stems
involved three families who requested certificates of eligibility to allow
their child or children to attend public English-language schools pursuant to
s. 73 of the CFL. The requests were denied on the ground that the child
or children had not completed the “major part” of their instruction in the
minority language.
14
The Solski family left Poland in 1990 to take up a temporary work
assignment in Canada. Their children, Mateusz and Karol, were permitted to
attend an English-language school on a temporary basis pursuant to s. 85 of the
CFL. In 1993, the Solski family decided to settle in Quebec and seek
Canadian citizenship. The temporary certificate expired in July 1994. Accordingly,
the children attended a French-language school beginning in November 1994 and
remained there until September 1997. In May 1997, the family acquired Canadian
citizenship. In the academic year 1997-1998, the children completed their first
year of secondary school in an English-language school despite the fact that
they did not have authorization. In August 1998, the school required the Solski
children to obtain a certificate of eligibility under the CFL. The
Solskis applied but were refused by the Minister of Education’s designated
person on the basis that the secondary studies completed by the children to
date had been completed unlawfully because they had not obtained eligibility
certificates. The review committee on language instruction (“review committee”)
and the Administrative Tribunal of Québec (“ATQ”) upheld the decision made by
the designated person. The ATQ considered that, at the primary level, the
children had received 34 months of instruction in French, 24 months of
instruction in English under the temporary stay exemption, and one month of
so-called “illegal” instruction in English, since it was received after the
temporary certificate expired. On this basis, the ATQ deemed that the major
part of the elementary education of the Solski children had been in French. It
also concluded that the first year of secondary school in an English-language
school had been completed illegally, since the children had not received
eligibility certificates beforehand, and that such a situation could not
generate a right.
15
The appellant, Edwidge Casimir, is a Canadian citizen and is the mother
of two children, Shanning and Edwin. Shanning attended grades 1 and 2 in the
French immersion program offered at St. Elizabeth School which is administered
by an English school board in Ottawa. Shanning received 50 percent of her
education in French and 50 percent of her education in English. In July 2000,
the family moved to Montreal. Ms. Casimir applied for a certificate of
eligibility under s. 75 of the CFL for the purposes of sending Shanning
to an English-minority-language school. The application was denied by the
Minister’s designated person on the grounds that Shanning had not received the
major part of her education in English as required by s. 73(2) of the CFL.
As discussed in the companion appeal (Okwuobi v. Lester B. Pearson School
Board, [2005] 1 S.C.R. 257, 2005 SCC 16), Ms. Casimir did not apply for
review of the designated person’s decision to the ATQ, but rather challenged
the constitutionality of s. 73 in the Superior Court.
16
Marie Lacroix is a Canadian citizen who completed her own primary and
secondary instruction in French schools in Quebec. She is the mother of two
children, Ève and Amélie. Amélie completed grades 1 and 2 in a private French
school. She then attended an unsubsidized private school that provided 60
percent English instruction and 40 percent French instruction. Ms. Lacroix
applied for a certificate of eligibility under s. 75 of the CFL but was
denied on the basis that Amélie did not satisfy the major part requirement set
out in s. 73(2). The review committee and the ATQ upheld the decision made by
the Minister’s designated person.
V. Judicial History
17
Concurrently with their recourse before the ATQ, the Solski family
sought declaratory relief in the Superior Court of Quebec. Specifically, the
Solskis asked the Court to declare (1) that s. 73(2) of the CFL is
inconsistent with s. 23 of the Canadian Charter to the extent that the
“major part” criterion narrows the category of eligible rights holders; and (2)
that the Solski children are entitled under s. 23(2) to receive their secondary
school education in English in Quebec. The Superior Court agreed: [2001] R.J.Q.
218. After reviewing the history of the impugned provisions of the CFL
and the jurisprudence surrounding s. 23 of the Canadian Charter ,
the trial judge concluded that s. 23(2) did not stipulate a minimum
requirement. In particular, the use of the term “is receiving” indicates that
the framers intended that a child who is pursuing his instruction in the
minority language at the time of the application, regardless of his previous
studies, would be a rights holder under s. 23(2) (para. 138). The trial judge
also rejected the Attorney General’s argument that the Solski children would
remain ineligible on the basis that they had subsequently attended a private
unsubsidized school because such institutions are not subject to the CFL
(paras. 149 et seq.). Therefore, the court declared s. 73(2) to be
inconsistent with s. 23(2) to the extent that it limited the category of
persons eligible to receive minority language education. The trial judge relied
on this Court’s decision in Quebec Association of Protestant School Boards to
conclude that s. 1 could not justify the s. 23(2) infringement.
18
The Attorney General of Quebec appealed the decision to the Court of
Appeal, but the Solskis decided not to contest the appeal. Accordingly, the
Court of Appeal authorized the intervention of the Casimir and Lacroix
families. The Court of Appeal allowed the appeal: [2002] R.J.Q. 1285. It
rejected the trial judge’s interpretation of s. 23(2) as it failed to accord
with the purpose of s. 23 . The Court of Appeal opined that the trial judge’s
“snapshot” approach would allow quasi-automatic access to subsidized public or
private English-language school in Quebec for children of the French-speaking
majority or allophones who spend a short time in unsubsidized private
English-language schools. The Court of Appeal concluded that the “major part”
requirement set out in s. 73(2) of the CFL achieves the purpose of
s. 23 because it confers upon the Minister, and ultimately the Superior
Court on judicial review, a discretionary power to determine which children are
legitimate rights holders (para. 63). Accordingly, the Court of Appeal did not
consider s. 1 of the Canadian Charter .
19
By order of Deschamps J., dated November 14, 2002, Edwidge Casimir was
authorized to be substituted for Cezary and Isabella Solski as a party.
Further, Ms. Lacroix did not file an application for leave to appeal the
decision of the Court of Appeal and is accordingly not a party in this appeal.
VI. Analysis
20
Section 23 provides a comprehensive code of minority language education
rights which afford special status to minority English- or French-language
communities. The Court in Mahe, at p. 369, recognized that this
special status would create inequalities between linguistic groups. See also Adler
v. Ontario, [1996] 3 S.C.R. 609, at para. 32. Specifically, English
speakers living in Quebec and French speakers living in the territories and
other provinces would enjoy rights denied to other linguistic groups. Section
23 has been described as an exception to ss. 15 and 27 of the Canadian
Charter ; it is rather an example of the means to achieve
substantive equality in the specific context of minority language communities.
While this entrenched inequality may be the product of political compromise and
negotiation, this does not mean that s. 23 rights are to be construed narrowly.
The Court has confirmed on several occasions that language rights must be
interpreted in a broad and purposive manner consistent with the preservation
and promotion of both official language communities in Canada: R. v. Beaulac,
[1999] 1 S.C.R. 768, at para. 25; Reference re Public Schools Act (Man.),
at p. 850; Reference re Secession of Quebec, at para. 80; Arsenault-Cameron,
at para. 27.
21
The minority language education rights entrenched in s. 23 are national
in scope and remedial in nature. At the time the section was adopted, the
framers were aware of the various regimes governing the Anglophone and
Francophone linguistic minorities throughout Canada and perceived these regimes
as inadequate. Section 23 was intended to provide a uniform solution to remedy
these inadequacies. As the Court explained in Quebec Association of
Protestant School Boards, at pp. 79-80, where the constitutionality of the CFL’s
education provisions was under review:
The framers of the Constitution unquestionably intended by s. 23 to
establish a general regime for the language of instruction, not a special
regime for Quebec; but in view of the period when the Charter was
enacted, and especially in light of the wording of s. 23 of the Charter
as compared with that of ss. 72 and 73 of Bill 101, it is apparent that
the combined effect of the latter two sections seemed to the framers like an
archetype of the regimes needing reform, or which at least had to be affected,
and the remedy prescribed for all of Canada by s. 23 of the Charter was
in large part a response to these sections.
Given the
national character of s. 23 , the Court has interpreted the rights provided by
this provision in a uniform manner from province to province: Quebec
Association of Protestant School Boards; Mahe; Reference
re Public Schools Act (Man.); Arsenault-Cameron; Doucet-Boudreau.
This is not to say however that the unique historical and social context of
each province is irrelevant; rather, it must be taken into account when
provincial approaches to implementation are considered, and in situations where
there is need for justification under s. 1 of the Canadian Charter : Ford,
at pp. 777-81.
22
In our Court, different approaches to the interpretation of s. 23 were
advanced. The very nature and scope of the rights to minority language
education were analysed by parties that had different perceptions of present
realities. For the Attorney General of Quebec, s. 23 is a provision for the
implementation of community rights; for the appellant, it is about individual
rights that can be exercised by qualified persons throughout Canada.
23
As is often the case, these two approaches are not entirely devoid of
merit
(C. Ryan,
“L’impact de la Charte canadienne des droits et libertés sur les droits
linguistiques au Québec”, Numéro spécial de la Revue du Barreau en
marge du vingtième anniversaire de l’adoption de la Charte canadienne des
droits et libertés , March 2003, 543, at p. 551). 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. Section 23 rights are in that sense
collective rights. The conditions for their application reflect this (Doucet-Boudreau,
at para. 28): implementation depends on numbers of qualified pupils (Mahe,
at pp. 366-67; Reference re Public Schools Act (Man.), at p. 850; Arsenault-Cameron,
at para. 32). Nevertheless, these rights are not primarily described as
collective rights, even though they presuppose that a language community is
present to benefit from their exercise. A close attention to the formulation of
s. 23 reveals individual rights in favour of persons belonging to specific
categories of rights holders.
24
The main question in this appeal is to decide the proper interpretation
of s. 23(2) of the Canadian Charter and whether the CFL’s
“major part” threshold is consistent with this constitutional requirement. To
do so, it is important to briefly set out the interpretation given to the
“major part” requirement under s. 73(2) by the Minister and the ATQ, as well as
the interpretation endorsed by the respondent, the Attorney General of Quebec.
A. Section 73: The “Major Part” Requirement
25
Section 73(2) of the CFL establishes the eligibility requirements
for a child to receive instruction in English in Quebec. It provides:
73. The
following children, at the request of one of their parents, may receive
instruction in English:
. . .
(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.
The Minister has
interpreted the “major part” requirement in a disjunctive and strictly
mathematical manner. The Minister will consider either the child’s primary
school attendance or the child’s secondary school attendance, but will not
consider them cumulatively (appellant’s record, vol. III, at pp. 400-435). Further,
the Minister will determine eligibility solely on the basis of the
number of months spent in each language. Other factors, including the
availability of linguistic programs and the presence of learning disabilities
or other difficulties, which are developed below, are not considered. The ATQ
has adopted this interpretation: Affaires sociales — 288, [1999] T.A.Q.
269; S.A. v. Comité de révision sur la langue d’enseignement, [2001]
T.A.Q. 935; J.B. v. Comité de révision sur la langue d’enseignement, [2002]
T.A.Q. 15.
26
This strict mathematical approach is also advocated by the Attorney
General of Quebec. The Attorney General argues that the “major part”
requirement evidences a sufficient link between the child and the minority
language community. In his view, the existence of a sufficient link is
necessary to achieve the purpose of s. 23, which is to guarantee
instruction in the minority language to members of a particular language
community. The sufficient link requirement precludes those members of the
allophone or majority language community from obtaining English instruction
preferentially (respondent’s factum, at paras. 50, 67-68). The Attorney General
of Quebec submits that each provincial legislature may legitimately establish
the qualifications for attending minority language schools as part of their
legislative powers over education (respondent’s factum, at paras. 73-74).
According to the Attorney General of Quebec, the “major part” threshold offers
an objective and easily discernible standard that serves as a constitutionally
permissible proxy for the sufficient link requirement (respondent’s factum, at
para. 65).
27
We cannot accept that the strict mathematical approach is consistent
with s. 23(2) of the Canadian Charter . Section 23(2) is designed
to identify a single category of beneficiaries. It must receive a broad
interpretation consistent with the constitutional objective of protecting minority
language communities.
28
Based on the proper interpretation of s. 23(2) , which we will set out in
detail below, we are of the view that in order to comply with this
constitutional provision, the CFL’s “major part” requirement must involve
a qualitative rather than a strict quantitative assessment of the child’s
educational experience through which it is determined if a significant part,
though not necessarily the majority, of his or her instruction, considered
cumulatively, was in the minority language. Indeed, the past and present
educational experience of the child is the best indicator of genuine commitment
to a minority language education. The focus of the assessment is both
subjective, in that it is necessary to examine all of the circumstances of the
child, and objective, in that the Minister, the ATQ and the courts must
determine whether the admission of a particular child is, in light of his or
her personal circumstances and educational experience, past and present,
consistent with the general purposes of s. 23(2) and, in particular, the need
to protect, preserve and reinforce the minority language community by granting
individual rights to a specific category of beneficiaries.
B. Section 23(2) : Continuity of Language
Instruction
29
Section 23(2) of the Canadian Charter provides minority language
education rights that are concerned with the language of instruction of the
child rather than the language of instruction of the parents. As with s. 23(1) (b),
the rights holders are the parents even though the language of instruction of
the child is the qualifying standard. Section 23(2) states:
23. . . .
(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.
As discussed
earlier, the proper interpretation of s. 23(2) must be purposive; it must
reflect the remedial nature of the provision and it must be consistent with the
intent to adopt a uniform set of minimum rights which in fact restrict
provincial jurisdiction over education.
30
The specific purpose of s. 23(2) is to provide continuity of minority
language education rights, to accommodate mobility and to ensure family unity.
The framers intended that a child who has received or is receiving his or her
education in one official language should be able to complete it in that
language when it is the minority language. The Honourable Mr. Jean Chrétien,
then Minister of Justice, explained:
Mr. Speaker, this government holds the view that such rights must be
protected in the constitution because they are fundamental to what Canada is
all about. When minority language education rights are taken away, the right to
take up a job in any part of Canada is seriously impaired. English-speaking
Canadians, if they move to Quebec, want to have the right to send their
children to school in their own language. . . .
Similarly French-speaking Canadians do not want to move to other parts
of Canada unless they can send their children to school in their own language.
The only way to achieve this is to guarantee such rights in the constitution.
In effect, without a guarantee of minority language education rights, there can
be no full mobility rights.
(House of Commons Debates, vol. III, 1st Sess., 32nd Parl.,
October 6, 1980, at p. 3286)
The title of the
provision, “Continuity of language instruction”, accords with this interpretation.
Further, once one sibling has received or is receiving minority language
education, all other siblings are entitled to receive instruction in the
minority language as well. P. Foucher, in “Les droits scolaires des minorités
linguistiques”, in G.-A. Beaudoin and E. Mendes, eds., The Canadian Charter
of Rights and Freedoms (3rd ed. 1996), 16-1, at p. 16-12, confirms that
family unity is an integral aspect of this provision.
31
Nevertheless, many persons qualify under s. 23 without being “of the
minority”, even Francophones in provinces other than Quebec who have chosen
English education for their children. In this respect, s. 23(2) applies without
regard to the fact that qualified parents or children may not be French or
English, or may not speak those languages at home, despite the fact that the
ultimate goal of s. 23 is to protect and promote minority language communities.
The conditions for qualification under s. 23 reflect the fact that new
Canadians in particular will decide to adopt one or the other official
languages, or both, as participants in the Canadian language regime. We now
consider what interpretation of s. 23(2) accords with this purpose.
32
The first part of the phrase “has received or is receiving” is also
reflected in s. 23(1)(b), which entitles parents who have received their
primary school instruction in English or French to have their children educated
in that language if it is the minority language in the province. The words “has
received” or “have received” connote a reference to one’s “school record” or
“educational experience”, or “parcours scolaire” if one is referring to
the expression used by the Court of Appeal in this case. In both ss. 23(1)(b)
and 23(2) , the object of the provisions is the same. A similar approach must
be used in their interpretation.
33
Provincial legislation that establishes criteria regarding the
educational experience of the child is helpful. These criteria must, however,
accord with the purpose of s. 23. This purpose indicates that s. 23 is both a
social and collective right, and an individual and civil right. It must indeed
be noted here again that children qualified under s. 23 are not required to
have a working knowledge of the minority language, or to be members of a
cultural group that identifies with the minority language. The section is
remedial. In previous cases, this Court has insisted that s. 23 must be
interpreted so as to facilitate the reintegration of children who have been
isolated from the cultural community the minority school is designed to protect
and develop. Section 23(2) in particular facilitates mobility and continuity
of education in the minority language, though change of residence is not a
condition for the exercise of the right. As noted, s. 23 is also meant to apply
to some members of cultural communities that are neither French nor English. To
purposefully assess the requirement for participation in s. 23(2) , therefore,
all the circumstances of the child must be considered 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. In this way, it is possible to
determine whether a child’s overall educational experience is sufficient to
meet the requirements of s. 23(2) .
34
The application of s. 23 is contextual. It must take into account the
very real differences between the situations of the minority language community
in Quebec and the minority language communitie of the territories and the other
provinces. The latitude given to the provincial government in drafting
legislation regarding education must be broad enough to ensure the protection
of the French language while satisfying the purposes of s. 23. As noted by
Lamer C.J. in Reference re Public Schools Act (Man.), at p. 851,
“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”.
35
The pertinent question, then, is whether the “major part” requirement is
consistent with the purpose of s. 23(2) and capable of ensuring that the
children meant to be protected will actually be admitted to minority language
schools. In our view, the “major part” requirement as interpreted by the ATQ is
underinclusive; it does not achieve the purpose of s. 23(2) and, therefore,
cannot be said to complete it or to act as a valid substitute for it. Thus, the
“major part” requirement cannot be saved unless it is interpreted such that the
word “major” is given a qualitative rather than a quantitative meaning.
36
Reading down s. 73 to keep it within the permissible scope of s. 23 of
the Canadian Charter (Clark v. Canadian National Railway Co., [1988]
2 S.C.R. 680; Derrickson v. Derrickson, [1986] 1 S.C.R. 285; R.
v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2) is warranted in cases where the
“bulk of the legislative policy to be accomplished [is allowed], while trimming
off those applications that are constitutionally bad”: P. W. Hogg, Constitutional
Law of Canada (4th ed. 1997), at p. 401. Reading down is also consistent
with the presumption that legislation is enacted to comply “with the norms
embodied in Canada’s entrenched Constitution”: R. Sullivan, Sullivan and
Driedger on the Construction of Statutes (4th ed. 2002), at p. 367.
37
The strict mathematical approach lacks flexibility and may even exclude
a child from education vital to maintaining his or her connection with the
minority community and culture. For example, a child who has completed grades
1, 2 and 3 in French and grades 4, 5 and 6 in English may have formed a
sufficient link with the minority language community, but would not qualify
under s. 73(2). It might also be that the language learned in the last three
years may provide a better marker than that learned in the first three years.
Too many relevant factors are ignored. In short, the strict approach mandated
by the Minister of Education fails to deal fairly with many persons who must be
qualified under a purposive interpretation of s. 23(2) of the Canadian
Charter .
(1) Scope of Section 23(2)
38
A number of factors, including those mentioned above (i.e., 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), may be considered in the course of a
qualitative assessment of a child’s overall educational experience in order to
determine if it is sufficient to meet the requirements of s. 23(2) . In the sections
that follow, we will discuss the factors mentioned above; however, it must be
acknowledged that the relevance of each factor will vary with the facts of each
case and other factors may also arise depending on the circumstances of the
particular child and his or her educational experience, past and present.
(2) Factors to Consider
(a) How Much Time Was Spent in Each Program?
39
Although it is not a conclusive factor, it is nonetheless important to
consider the time a child spent in the minority language program, cumulatively,
at the primary and secondary levels, where relevant, when determining if that
child’s total educational experience is sufficient to meet the requirements of
s. 23(2) . This factor is relevant because the more time a child spends in such
a program, the easier it is to find a true intention to adopt that language of
instruction over the other; this factor is a marker of an existing affiliation
with the official minority language community. It cannot be enough, in light of
the objectives of s. 23 , for a child to be registered for a few weeks or a few
months in a given program to conclude that he or she qualifies for admission,
with his or her siblings, in the minority language programs of Quebec.
40
Since the time spent by a child in the minority language education
program may evidence a more significant connection with the language of the
minority than that of the majority, the purpose of s. 23(2) to provide
continuity of minority language education rights, to accommodate mobility and
to ensure family unity is engaged. The question of whether there is a
sufficient connection with the language of the minority must therefore be
viewed from both a subjective and an objective perspective. Subjectively, do
the circumstances show an intention to adopt the minority language as the
language of instruction? Objectively, do the educational experiences and choices
to date support such a connection?
41
That being said, it is important to remember that s. 23(2) of the Canadian
Charter does not specify a minimum amount of time a child must spend in a
minority language education program before his or her educational experience
can qualify under s. 23(2) , nor does it require that the time spent in the
minority language education program be greater than the time spent in the
majority language education program. Thus, this factor must not be applied in
a strict, mathematical matter. Nor should it be considered in isolation.
Rather, the time spent in each program must be considered in concert with the
other factors discussed below and always in light of the purposes of s. 23(2) .
(b) At What Stage of Education Was the Choice of Language of
Instruction Made?
42
Another factor that may be relevant in determining whether a child’s
educational experience is sufficient to meet the requirements of s. 23(2) will
be the stage of education at which the choice of language of instruction was
made. It may be important to consider what education came first. In some cases
the initial choice of language will be a better indicator of intention to
permanently adopt one language rather than the other; in other cases it will
not. The reasons behind any change may be revealing. Choosing the minority
language as one enters secondary school might also evidence a stronger, more
informed commitment to that language than if the choice was made during the
early, primary years of schooling, given the more stringent academic demands
associated with secondary education, as well as its impact on post-secondary
education opportunities. As stated above, once a commitment to instruction in
the minority language is shown on the facts of the case, the purpose of s.
23(2) to provide continuity of minority language education rights, to
accommodate mobility and to ensure family unity is engaged.
(c) What Programs Are or Were Available?
43
In determining whether a child’s education experience is sufficient to
meet the requirements of s. 23(2) , it is also important to consider the past
and present availability of minority language education programs. For example,
if a child completes grade 1 in the minority language but then spends the next
three school years in an area where minority language is unavailable, it is
clear that he or she has not received the “major part” of his or her education
to date in the minority language under the restrictive interpretation of s. 73
of the CFL. However, under a purposive interpretation of s. 23(2) of
the Canadian Charter , the time spent in the majority language
educational system, when a minority language school was unavailable, ought not
to be considered as indicative of a choice to adopt the majority language as
the child’s language of instruction. One aspect of the purpose of s. 23(2) is
to accommodate mobility. This purpose would be frustrated and parents and
their children, as well as the minority language community as a whole, would be
unjustly penalized if children were barred from continuing with instruction in
the minority language once they moved to an area in which it was available
again simply because they temporarily lived in an area in which it was
unavailable. There again it is obvious that the situation of students moving
to Quebec will be unique, the availability of instruction in English in the
territories and other provinces being unquestioned. As mentioned earlier, the
geographical context is always important.
44
It is also important to consider the availability of minority language
education programs from a socio-cultural perspective and with respect to the
circumstances of each child. When considering the situation in a province
other than Quebec, one must remember that a child could have been sent to a
majority language school by assimilated parents who then, in the latter stages
of the child’s educational experience, have changed their minds and sent the
child to a minority language school in order to help the child reintegrate the
minority language community and adopt its culture. It may be that the choice
to enrol the child in a minority language education program, even though the
program may have been available throughout the child’s educational experience,
did not become a viable choice until the child’s assimilated parents decided to
help their child reforge a connection with the minority language community and
culture. In this context, the remedial purpose of s. 23(2) is engaged, and, as
stated above, this right must be interpreted so as to facilitate the
reintegration of children who have been isolated from the cultural community
the minority school is designed to protect and develop. In these
circumstances, it would be beneficial and in line with the purpose of s. 23(2)
for the siblings of this child to receive minority language education. All
this is 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. Therefore, while certain educational experiences may not qualify
for minority language education under the “major part” requirement, defined
qualitatively, in s. 73 of the CFL, this does not mean that they could
not qualify under other provincial minority language education legislative
schemes, which are necessarily responsive to their own province’s unique
historical and social context.
(d) Do Learning Disabilities or Other
Difficulties Exist?
45
Another relevant factor in some circumstances will be whether the child
is having difficulty learning in one language as compared to the other. For
example, if a child completes grades 1, 2 and 3 in the minority language and
then switches to the majority language for grades 4, 5 and 6 and experiences
learning difficulties in that language, it would be unacceptably punitive to
force that child to continue in the majority language, especially when it may
be that the child has made a more significant connection with the minority
language community, given the fact that he or she finds that instruction in
that language is more conducive to learning.
(3) Summary
46
A “major part” requirement, defined qualitatively, i.e., as meaning a
“significant part”, as described in para. 28 is a valid qualifier for “parcours
scolaire” or “educational experience”. The “major part” requirement must
make room for the nuances and subjectivity required to determine whether the
admission of a particular child, considering his or her personal circumstances,
is consistent with the objectives of s. 23 and the specific need to protect and
reinforce the minority language community.
47
The purpose of the s. 23(2) criteria is to guarantee continuity of
minority language education rights and mobility to children being educated in
one of the official languages. If children are in a recognized education
program regularly and legally, they will in most instances be able to continue
their education in the same language. This is consistent with the wording of s.
23(2) and the purposes of protecting and preserving the minority-language
community, as well as with the reality that children properly enrolled in
minority-language schools are entitled to a continuous learning experience and
should not be uprooted and sent to majority-language schools. Uprooting would
not be in the interest of the minority language community or of the child.
Nevertheless, a qualitative assessment of the situation to determine whether
there is evidence of a genuine commitment to a minority language educational
experience is warranted, with each province exercising its discretion in light
of its particular circumstances, obligation to respect the objectives of s. 23 ,
and educational policies.
48
The approach will be both subjective and objective. This does not imply
an artificial “snapshot” approach. Provincial governments are entitled to
verify that registration and overall attendance in the program, the past and
present educational experience of the child, are consistent with participation
in the class of beneficiaries defined in s. 23(2) .
(4) Other Issues
49
We now turn to other related issues: What of the nature of instruction?
How should immersion programs and private schools be treated when determining
or assessing whether a child is entitled to receive minority language
instruction?
50
The Quebec legislature does not consider whether the language of
instruction was received in the context of an immersion program or a minority-
language school. For example, Shanning Casimir received 50 percent of her
education in English and 50 percent of her education in French in the context
of a French immersion program; she was found not to have completed the “major
part” of her education in English. This fails to recognize significant
differences between immersion programs and minority language programs. Outside
Quebec, immersion programs are designed to provide second language training to
children attending schools designed for those adopting the language of the
majority. Immersion programs occur in a majority setting where the majority
language is spoken in the corridors and during extra-curricular activities.
Immersion programs are run in majority schools that are a part of the majority
school system. As a result, immersion programs lack the cultural element that
is vital to minority language education, as discussed in Mahe. There,
this Court insisted on the need to identify schools with the minority in coming
to the decision that s. 23 guaranteed the right to management to
representatives of the minority. Therefore, while there is nothing in the
language of s. 23(2) that strictly restricts the nature of the instruction, it
would be contrary to the purpose of the provision to equate immersion with
minority language education. In our view, recognizing immersion as a branch of
minority language education fails to appreciate the fact that Shanning Casimir
was actually receiving education for Anglophones and that she has a stronger
link with the English linguistic community than the French. As a result,
Shanning was entitled to continue her education in Quebec’s minority language,
English, under s. 23(2) of the Canadian Charter and s. 73(2) of the CFL.
51
The qualification of private schools also arises incidentally in the
cases of the Solski family and the Lacroix family. The Court of Appeal
expressed concern about [TRANSLATION]
“quasi-automatic access to subsidized public or private English-language school
in Quebec for children of the French-speaking majority or allophones who spend
a short time in unsubsidized private English-language schools” (para. 55). The
trial judge more aptly described the problem as the availability of private
school creating a distinction between the affluent and the less affluent (para.
153). In 2002, the Quebec legislature introduced Bill 104, which amends s. 73
of the CFL so as to disqualify education in private unsubsidized English
schools when calculating the “major part” requirement (S.Q. 2002, c. 28, s. 3).
The constitutionality of this provision is not before this Court but is the
subject of other ongoing judicial proceedings; accordingly, it will not be
dealt with here. Prior to these amendments, however, the Quebec legislature
must be taken to have accepted attendance at a private unsubsidized school as
valid when calculating the major part of a child’s education.
52
While the current quantitative approach to s. 73 of the CFL is
not the standard required by s. 23(2) of the Canadian Charter , the
Attorney General of Quebec argues, in the alternative, that it is justifiable
under s. 1 . It is his view that the unique linguistic position of Quebec in Canada
— the provincial majority language community is also the national minority
language community — can serve as a justification for the “major part”
requirement as interpreted by him. We do not consider it necessary to examine
that possibility. Reading down s. 73 permits Quebec to meet its legislative
objectives while ensuring that no persons eligible under s. 23 of the Canadian
Charter are excluded from minority-language schools if they choose to
attend them. Nevertheless, we will examine briefly the primary concerns of the
Attorney General of Quebec to ensure the qualitative interpretation adequately
addresses them.
53
The Quebec Government is concerned that some Francophone children will
become able to attend English subsidized schools by first registering and
attending private unsubsidized English schools for a short period of time. In
particular, the Quebec Government is afraid that the free choice model will be
indirectly reinvigorated (respondent’s factum, at para. 92). The free choice
model was introduced in Bill 63 entitled An Act to promote the French
language in Québec, S.Q. 1969, c. 9. The only requirement for a child to
receive English-language instruction was that the parents had to apply for such
instruction at the time of enrollment. As earlier noted, this problem has now
been dealt with by Bill 104. Its constitutionality is not before us and will
not be considered here.
54
The other major concern is with children of immigrants. But
children who have immigrated directly to Quebec can only attend
English-language school in two circumstances: (1) where a temporary stay
certificate pursuant to s. 85 of the CFL has been granted; or (2) where
they attend a private, unsubsidized English-language school. The first of
these conditions is dealt with in a Regulation respecting the exemption from
the application of the first paragraph of section 72 of the Charter of the
French language that may be granted to children staying in Québec temporarily,
(1997) 129 G.O. II, 1970. This regulation provides for the circumstances in
which a child will be exempted from the requirement in s. 72 of the CFL
that he or she receive instruction in French. The circumstances contemplated
in this regulation can be described as those in which there is no apparent
intention to permanently settle in Quebec. The Attorney General of Quebec says
essentially that since children who are exempted under s. 85 of the CFL
receive the exemption when their family has no apparent intention to settle in
Quebec permanently, should their family eventually choose to make Quebec its
permanent home, then the time spent in instruction in English under the
temporary stay exemption ought to be disqualified from the “major part”
calculation. In other words, the time at which immigration (rather than simply
a temporary stay) is contemplated should be considered as a fresh start to
determine eligibility. As in the case of unsubsidized private schools however,
the National Assembly has chosen to deal with this issue in Bill 104 which
provides that temporary permits shall be disregarded in the “major part”
calculation. Since Bill 104 is not before us, we believe it is best to consider,
as in the case of unsubsidized schools, that Quebec must be taken to have
accepted that instruction received under such permits should be considered
prior to the adoption of Bill 104. During this period, the proper test is
evidence of commitment to instruction in the minority language, however it
originated. After the 2002 amendment, other considerations are at play and
will be dealt with in due course.
55
The legislature’s concern about interprovincial immigration, that is
individuals who immigrate to another province in Canada, become Canadian
citizens and then move to Quebec, is a different issue. We believe that
concern is addressed in our interpretation of the “major part” requirement.
56
Accordingly, we would declare that s. 73(2) of the CFL is valid
but must be read so that the term “major” is given a qualitative meaning.
VII. Disposition
57
We will now consider whether the Solski, Casimir and Lacroix children
qualify for minority language instruction.
58
The Solskis abandoned the appeal of this case following the trial
judgment; it is not necessary to deal with their particular circumstances.
59
Although Ms. Lacroix was not a party before this Court, she did
intervene before the Court of Appeal and for the purposes of clarity, we think
it appropriate to consider the situation of her children in light of our
decision here. In our view, the Lacroix children were entitled to the benefit
of the year spent in a private unsubsidized English school under the regime and
administrative practice prior to the enactment of Bill 104, the
constitutionality of which is not considered here.
60
The Casimir children were also entitled to attend subsidized minority
language institutions because of their prior experience in immersion programs
which must be qualified as majority language instruction. Although Shanning
Casimir received 50 percent of her curriculum-based education in French, the
fact that she received this education in a French immersion program, and
therefore in an English-language setting, qualifies her education as English
education.
VIII. Conclusion
61
For the above reasons, we would allow the appeal in part. The Casimir
and Lacroix children are found to have been eligible for English education.
Properly interpreted, s. 73(2) of the Charter of the French language is
constitutional. Costs are awarded to the appellant throughout the proceedings
to which she was a party.
Appeal allowed in part, with costs.
Solicitor for the appellant: Brent D. Tyler, Montréal.
Solicitors for the respondent: Bernard, Roy & Associés,
Montréal; Department of Justice, Montréal.
Solicitor for the intervener the Attorney General of Canada:
Department of Justice Canada, Montréal.
Solicitors for the intervener the Commissioner of Official Languages
for Canada: Irving Mitchell & Associates, Montréal.
Solicitors for the interveners Fédération nationale des conseillères
et conseillers scolaires francophones and Commission nationale des parents
francophones: Patterson Palmer, Moncton.
Solicitors for the interveners Association franco‑ontarienne des
conseils scolaires catholiques and Association des conseillers(ères) des écoles
publiques de l’Ontario: Heenan Blaikie, Toronto.
Solicitors for the interveners Fédération des communautés francophones
et acadiennes du Canada and Fédération des associations de juristes
d’expression française de common law inc.: Heenan Blaikie, Ottawa.