In two decisions released on the same day, the Supreme Court of Canada eased restrictions on access by non-francophones to English education in Quebec, but blocked an attempt by French-speaking parents to have their children educated in English. At issue in both decisions was whether Quebec’s Charter of the French Language breached section 23 of the Canadian Charter of Rights and Freedoms (Canadian Charter).
Section 23 of the Canadian Charter provides:
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.
GOSSELIN: QUEBEC FRANCOPHONES NOT RIGHTS HOLDERS UNDER MINORITY LANGUAGE PROVISIONS OF CANADIAN CHARTER
In the Gosselin v. Quebec (Attorney General) case (March 31, 2005), most of the plaintiffs were francophone parents seeking admission for their children to publicly funded English language schools. They argued that the Charter of the French Language breached their equality rights guaranteed in the Quebec Charter of Rights and section 15 of the Canadian Charter.
The provision with which the plaintiffs took issue was section 73 of the Charter of the French Language, which provides for access to English language schooling for certain defined groups in Quebec – but not for the francophone majority. The plaintiffs claimed that the purpose of this provision was to “exclude entire categories of children from a public service”.
The Court disagreed, holding that the purpose of section 73 was to implement the province’s constitutional obligation to provide minority language schooling to the minority language community. As members of the majority language community, the plaintiffs were not rights holders under either section 23 of the Canadian Charter or section 73 of the Charter of the French Language.
The Court stated that plaintiffs cannot use the equality rights guarantees in the Canadian Charter to trump other constitutional rights and explained the vital role played by various types of minority rights in Canadian society:
Equality rights, while of immense importance, constitute just part of our constitutional fabric. In [the Quebec Secession Reference] the protection of minorities was also identified as a key principle, manifested in part in minority language education rights (s. 23), denominational school rights (s. 93) and aboriginal and treaty rights (ss. 25 and 35). 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.”
Calling section 23 a “linchpin” of Canada’s commitment to bilingualism and biculturalism, the Court stated that the purpose of that section was not to secure access by the linguistic majority to minority language education. Moreover, the Court observed, granting free access by the majority to minority language education could actually threaten minority language rights by taking control of education out of the hands of the minority:
Practical concerns include the management and control of minority language schools. In [Mahé v. Alberta], 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 v. Prince Edward Island].”
Accordingly, the Court ruled, the plaintiffs had no claim to publicly funded English language instruction in Quebec.
SOLSKI: “PROPERLY INTERPRETED”, CHARTER OF THE FRENCH LANGUAGE IS CONSTITUTIONAL
The Solski v. Quebec (Attorney General) case (March 31, 2005) concerned the eligibility of children with some English language schooling to publicly funded English schooling in Quebec. At issue was whether the rules of eligibility for English language instruction set out in subsection 73(2) of the Charter of the French Language were compatible with section 23 of the Canadian Charter. Section 73 provides in part as follows:
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 plaintiffs’ children had been denied certificates of eligibility on the basis that they had not received the “major part” of their education in English as required by this provision. For the Court, the issue to be determined was whether the “major part” requirement was consistent with subsection 23(2) of the Canadian Charter.
The Court described section 23 as “a comprehensive code of minority language education rights which afford special status to minority English- or French- language communities” and stated that, while section 23 has been described as an exception to the equality provisions of the Canadian Charter, it is in fact a “means to achieve substantive equality in the specific context of minority language communities”. Despite the role of the section in protecting minority communities, the Court stated that it was primarily concerned with individual, not collective rights:
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: implementation depends on numbers of qualified pupils. 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.
“SIGNIFICANT”, NOT “MAJOR” PART OF INSTRUCTION
The Court found fault with the manner in which Quebec interpreted the “major part” requirement, calling it “disjunctive and strictly mathematical”. A child’s primary school attendance or secondary school attendance are considered, but not cumulatively. Moreover, the eligibility is determined solely on the basis of the number of months spent in instruction in each language. Other factors, including the availability of linguistic programs and the presence of learning disabilities or other difficulties, are not considered.
The Court stated that it could not accept this approach. Section 23 requires a broad interpretation, consistent with the constitutional objective of protecting minority language communities. The specific purpose of subsection 23(2) is to provide continuity of minority language education rights, to accommodate mobility and to ensure family unity. Furthermore, children qualified under section 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. Accordingly, the “major part” requirement had to be interpreted so as to be consistent with this objective:
Based on the proper interpretation of s. 23(2), … we are of the view that in order to comply with this constitutional provision, the … “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.
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.
The Court set out the factors to be considered when determining eligibility for English language instruction in Quebec. These include
- the amount of time spent by the child in each program;
- the stage in the child’s education at which the choice of language of instruction was made;
- whether the child’s family spent time in a geographical area where minority language instruction was unavailable; and
- whether the child is experiencing learning difficulties in the majority community’s language.
Summing up, the Court stated that, while it is not in the interest of the child or the minority language community to be uprooted, provinces are entitled to perform a qualitative assessment of the situation to determine whether there is a genuine commitment to a minority language educational experience. This, however, does not justify an artificial “snapshot” approach when determining eligibility for minority language instruction.
Accordingly, the Court ruled that subsection 73(2) of the Charter of the French Language is valid, as long as the term “major” is given a qualitative, not a quantitative, meaning.
In Our View
At one point in the Solski case, the Court suggested that section 23 could apply differently inside and outside Quebec, due to the differences in the situations facing minority language communities in Quebec and in the rest of Canada. The Court gave the example of an assimilated family outside Quebec that may have enrolled one of its children in the English language school system in the past but then, at a relatively late stage in the child’s education, decides to reintegrate into the minority language community and culture. Those parents might wish to enroll their children in the minority system, which had existed all along, but which only now becomes a viable choice in light of the parents’ new determination to help their children re-forge a connection to the minority community.
In these circumstances, a qualitative approach to assessing eligibility may not show a sufficient commitment to minority language instruction for such a family in Quebec. However, the Court suggests, outside Quebec, the children likely would qualify for minority language instruction. This difference in application reflects the Court’s recognition of “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”.
For further information, please contact Paul Marshall at (613) 940-2754.