Bill 104 argument

democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

If the answer to the first question is negative because the answer to the second question is affirmative, then it is not necessary to answer the third question.

11. The Appellants submit that the first question should be answered in the affirmative, and the second in the negative.

12. Once the exception relating to private instruction in Bill 104 is found to be an infringement of s. 23(2) in answer to the first question, and it cannot be read down in answer to the second question, then s. 1 of the Canadian Charter cannot save it, because as a matter of law, s. 1 cannot operate to allow a provincial statute to remove a parent from the special category of beneficiaries under s. 23(2). For that reason alone, the third question should be answered in the negative.

PART III - STATEMENT OF ARGUMENT

ISSUE I Do ss. 72 and the second to last paragraph of 73 of the Charter of the French Language, R.S.Q. c. C-11, and, in particular, the words “instruction in English received in Quebec in a private educational institution not accredited for the purposes of subsidies . . shall be disregarded” in the second to last paragraph of 73, infringe s. 23(2) of the Canadian Charter of Rights and Freedoms?

A. The judgment of the Supreme Court in Solski

13. The Supreme Court’s reversal of the judgment of this Court in Solski was precisely the scenario implicitly contemplated by the Superior Court judge in this case when he observed that the reasoning of the Tribunal was based on the reasoning of this Court in Solski and then assumed that the judgment of this Court was the applicable law. Following the reversal of that judgment, it is evident that the Appellants’ proceedings before the Tribunal and the Superior Court ought not to have been dismissed on that basis.

14. Further, the Appellants submit that not only was the judgment of this Court in Solski reversed, the reasoning was totally repudiated by the Supreme Court and as a consequence, it is now incumbent on the Respondents to come up with a new justification for the exception relating to private instruction in Bill 104 that is consistent with the judgment of the Supreme Court in Solski.

15. In Solski, the Supreme Court found that “in order to comply with s. 23(2) of the Canadian Charter, 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. . ” (para. 28)

16. “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. . ” (para. 30)

17. “ . . [S]ection 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. . ” (para. 31, reiterated in para. 33)

18. “ . . 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.” (para. 33)

19. “ . . 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. . ” (para. 33, reiterated in para. 38 and developed in paras. 39 to 45)

20. “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. . ” (para. 47)

21. “ . . [W]hile 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. . ” (para. 50)

22. “ . . 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.” (para. 51)

23. “ . . 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.” (para. 54)

24. “ . . 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.” (para. 59)

25. The reasoning of the Supreme Court in Solski necessarily implies that instruction must be treated differently depending on whether it was received before or after the coming into force of Bill 104 on October 1, 2002. Instruction that otherwise met the s. 23(2) criteria received before that date must be considered as eligible instruction independently of the issue of the constitutionality of Bill 104. Instruction that was otherwise eligible received after that date would be considered eligible only if Bill 104 is ultimately found to be unconstitutional.

26. All of the 26 Appellants invoked at least one year of private instruction in English in Quebec in the 2002-2003 school year in their proceedings before the Tribunal. For 19 of the Appellants, that year was Grade 1. On October 1, 2002, these children had received one month of instruction in English. While the duration is short, the choice of language of education must have been made months before. The stage of education at which the choice was made was Grade 1 and there was no other program in English available to them, except the instruction available in a private unsubsidized English school.

27. 7 of the Appellants invoked one or more years prior to the school year 2002-2003. On October 1, 2002, the children of these Appellants had received at least one full year of instruction in English, some of them as many as three or four years, all in English. If the Lacroix children were entitled to the benefit of the year spent in a private unsubsidized English school in Grade 3 after two years spent in a French private school in Grades 1 and 2 under the regime and administrative practice prior to the enactment of Bill 104, then a fortiori the children of these Appellants ought to be considered eligible, independently of the issue of the constitutionality of Bill 104.

28. Of course, if Bill 104 is unconstitutional, then the instruction received by the Appellants’ children is eligible instruction, regardless of when it was received.

29. It is important to note that the exception relating to private instruction in Bill 104 is total in the sense that the duration of the instruction is irrelevant. Whether it is one year or six years, all private instruction in English in Quebec is to be disregarded.

30. The Appellants submit that the evidence in this case is sufficient to meet the objective and subjective criteria in s. 23(2) of the Canadian Charter and discloses a genuine commitment to instruction in the minority language on behalf of all of the Appellants consistent with the judgment of the Supreme Court in Solski.

31. The Appellants submit that the word “instruction” in s. 23(2) should be interpreted to include private instruction in English in Quebec and therefore, the exception relating to private instruction in Bill 104, which has the effect of excluding the Appellants from the special category of beneficiaries under s. 23(2) of the Canadian Charter, is an infringement of that provision.

32. The Appellants submit that this interpretation is the only interpretation that is consistent with the clear text and necessary implications of s. 23(2), the intent of the framers, the context of its adoption in 1982, the conduct of the administrative authorities since its adoption, and its purpose when the purpose is properly defined as remedial to the benefit of the official language minority.

B. The clear text and necessary implications of s. 23(2)

33. In A.G. (Que.) v. Quebec Protestant School Boards, the Supreme Court qualified s. 23 rights as follows:

. . the limits which the regime imposes on rights involving the language of instruction, so far as they are inconsistent with s. 23 of the Charter cannot possibly have been regarded by the framers of the Constitution as coming within “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

The rights stated in s. 23 of the Charter are guaranteed to very specific classes of persons. This specific classification lies at the very heart of the provision, since it is the means chosen by the framers to identify those entitled to the rights they intended to guarantee. In our opinion, a legislature cannot by an ordinary statute validly set aside the means so chosen by the framers and affect this classification. Still less can it remake the classification and redefine the classes.

. . s. 73 of Bill 101 constitutes exactly the kind of redefinition of the classes of persons protected by s. 23 of the Charter which is prohibited and invalid if undertaken by any means other than a constitutional amendment.(Emphasis added)

A.G. (Que.) v. Quebec Protestant School Boards [1984] 2 S.C.R. 66, 84, 86, 87 (Appellants’ Authorities, TAB 4)

34. In Abbey v. Essex Board of Education, the Ontario Court of Appeal relied on the plain meaning of s. 23(2):

. . These educational rights are also available to all the children of a Canadian citizen if any of the citizen’s children has received primary or secondary school instruction in English or French in Canada. Not only do children who have received – or are receiving – their education in the language of the linguistic minority have the right to continue receiving their primary and secondary school education in that language, their siblings enjoy the same continuous right.

For purposes of s. 23(2), it does not matter whether this prior language instruction originated in another province, another part of a province, or through the kind of admissions committee contemplated by the Education Act. However it originated, it is the fact of it having occurred which attracts the protection of s. 23(2).

The independence of the various rights in s. 23 was supported by the judgment of this Court in Re Minority Language Education Rights (1984) 47 O.R. (2d) 1, where it said at p. 29:

. . .

“It can be seen that in the Charter there is no requirement that children, in order to be entitled to receive instruction in the French language in Ontario, must themselves be French speaking.”

. . .

Even though the overriding purpose of s. 23 is the protection of the language and culture of the linguistic minority through education, this does not preclude interpreting s. 23(2) according to its plain meaning even if it means that rights accrue to persons who are not members of the linguistic minority. The more fluency there is in Canada’s official languages, the more opportunity there is for minority language groups to flourish in the community.

Chief Justice Dickson acknowledged in Mahé that not all s. 23 right-holders would be members of the minority language group. Specifically, he noted at p. 379:

“ . . the persons who will exercise the measure of management and control described above are “s. 23 parents” or persons of such parents designated as their representatives. I appreciate that because of the wording of s. 23 these parents may not be culturally part of the minority language group.” (Emphasis added)

Abbey v. Essex Board of Education (1999) 42 O.R. (3d) 481, 488-489 (Appellants’ Authorities, TAB 5)

35. In Colin c. Commission d'appel sur la langue d'enseignement, Justice Nicole Duval-Hesler of the Superior Court decided that the major part requirement in s. 73(2) CFL did not have retroactive effect following its adoption in 1993 and that one year of private instruction gave rise to entitlement under s. 23(2), regardless of the fact that the children were not members of the English minority in terms of their ethnic/linguistic heritage:

Le tribunal rappelle en premier lieu que, dans cette province et dans le reste du Canada, tout parent peut faire instruire ses enfants dans une institution purement privé.

. . . [L]es inscriptions de Jessica auprès de The Study et de Paul auprès de Lower Canada College se sont faites dans la plus grande légitimité, ce qui les intimes ne contestent pas du reste. . . .

Les droits conférés par l’article 23 de la charte constitutionnelle et repris par l’article 73 paragraphe 2 de la charte linguistique sont garantis aux personnes, c’est à dire aux individus. Dans leur sagesse, les législateurs canadien et québécois ont décidé de ne pas exiger que les individus qui peuvent prétendre à des droits linguistiques aient pour en jouir à faire la preuve de leur appartenance à une minorité linguistique. Jessica Colin-Durand et Paul Trutschmann sont admissibles à ces doits à la seule condition de répondre aux critères pertinents, soit ceux que la loi prévoit, et à nul autre.

Colin c. Commission d'appel sur la langue d'enseignement, [1995] R.J.Q. 1478, 1485, 1490 (Appellants’ Authorities, TAB 6)

36. The Appellants submit that there are three conclusions arising from the clear text and necessary implications of s. 23(2) of the Canadian Charter:

1) It is the fact of the instruction having been received that generates entitlement under s. 23(2);

2) Section 23(2) applies to instruction received within Quebec and not just in the context of inter-provincial mobility;

3) Section 23(2) does not require any evidence of belonging to the linguistic minority;

C. The intent of the framers of s. 23(2) of the Canadian Charter

37. To support their interpretation based on the clear text and necessary implications of s. 23(2), the Appellants invoke the intent of the framers as evidenced by the chronology of proposals for minority language guarantees starting with the federal government’s proposal of 1969 and culminating in the final text adopted in 1982.

38. On June 12, 1978, the Right Honourable Pierre Elliott Trudeau tabled a document entitled “A Time for Action: Toward the Renewal of the Canadian Federation” in the House of Commons which stated as follows:

“The federal government’s proposal of 1969 respecting the choice of language of education was in the following terms:

“The right of individuals to have English or French as his main language of instruction in publicly supported schools in areas where the language of instruction of his choice is the language of instruction of choice of a sufficient number of persons to justify the provision of the necessary facilities.”

The Victoria Charter did not deal with this matter. However, the Special Joint Committee Report recommended the adoption of the language of the federal government’s proposal. The report recognized that freedom of choice should pertain in that province as well, both because the French language was now adequately secure and because choice of language of education was a basic human right.” (Emphasis added)

A Time for Action: Toward the Renewal of the Canadian Federation, pp. 509-510[7]

39. In the Proposed Resolution respecting the Constitution of Canada, 1980, pp. 22-23,[8] the proposed text read as follows:

“23(1) Citizens of Canada whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside have the right to have their children receive their primary and secondary school instruction in that minority language if they reside in an area of the province in which the number of children of such citizens is sufficient to warrant the provision out of public funds of minority language educational facilities in that area.

(2) Where a citizen of Canada changes residence from one province to another and, prior to the change, ay child of that citizen has been receiving his or her primary or secondary instruction in either English or French, that citizen has the right to have any or all of his children receive their primary or secondary instruction in that same language if the number of children of citizens resident in the area of the province to which the citizen has moved, who have a right recognized by this section, is sufficient to warrant the provision out of public funds of minority language educational facilities in that area.” (Emphasis added)

40. The following appeared in the explanatory notes:

“Subsection (2) would enable citizens who move from one province to another to have their children educated in English or French if any of their children started their studies in that language.”

41. On October 27, 1980, the Honourable Pietro Rizzuto proposed the following amendments to s. 23 in the Senate:

“23(1) That any Canadian citizen who received his primary or secondary instruction in Canada, in French or in English, has the right to have his children registered in the school where he was instructed in all of the Canadian provinces, where the number of children of those citizens warrants the provision, out of public funds, educational facilities in that language.”

23(2) That any Canadian citizen, when one of his children is being or has been instructed in English or in French, has the right to have his other children receive their primary or secondary instruction in that minority language either in French or English, everywhere in Canada, where the number of children of those citizens warrants the provision, out of public funds, of minority language educational facilities.” (Emphasis added)

Extracts of the Senate Debates, October 27, 1980, pp. 972-973[9]

42. On January 12, 1981, in response to Senator Rizzuto’s proposal, the Honourable Jean Chretien, then Attorney General of Canada, characterized an amendment that he would be prepared to accept in the following terms:

“(a) There will be two alternative qualifications for minority language education rights. Under the first alternative, if a citizen has received his primary instruction in Canada, in one of the official languages, he may send his child to school in that language if it is the minority language of the province in which he lives. Under the second alternative, a citizen whose mother tongue is English or French may educate his child in the language of his mother tongue if it is the minority language of the province in which he lives.

(b) All children of a Canadian citizen will be able to receive their primary and secondary instruction in the minority language in which any one of his children has commenced his education in Canada.” (Emphasis added)

Extracts of the proceedings of the Special Joint Committee, January 12, 1981, p. 36:17[10]

43. On January 29, 1981, the federal government formally proposed the following amendment, which was adopted later the same day:

“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.”

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.” (Emphasis added)

Extracts of the proceedings of the Special Joint Committee, January 29, 1981, proposed, pp. 48:95-48:96; adopted, p. 48:120[11]

44. On January 29, 1981, the same day, Lorne Nystrom, on behalf of the opposition, proposed the following amendment, which was defeated later the same day:

“23. Citizens of Canada

(1) In a province, who are members of the English speaking or French speaking minority population of a province, have the right to have their children receive their instruction in their minority language at the primary and secondary school levels wherever the number of children of such citizens resident in an area of the province is sufficient to warrant the provision out of public funds of minority language educational facilities in that area.

(2) In each province, the legislature may, consistent with the right guaranteed by subsection (1), enact provisions for defining the term ‘English speaking or French speaking minority population” and for determining whether the number of children of citizens of Canada who have a right guaranteed by subsection (1) resident in an area of the province is sufficient to warrant the provision out of public funds of minority language educational facilities in that area.” (Emphasis added)

Extracts of the proceedings of the Special Joint Committee, January 29, 1981, proposed, pp. 48:96-48:97; defeated, p. 48:107[12]

45. The issue of the relevance and probative value of the debates before the Special Joint Committee has been addressed by the Supreme Court on numerous occasions:

“If speeches and declarations by prominent figures are inherently unreliable (per McIntyre J. in Reference re Upper Churchill Water Rights Reversion Act, supra, at p. 319) and “speeches made in the legislature at the time of enactment of the measure are inadmissible as having little evidential weight'' (per Dickson J. in the reference Re: Residential Tenancies Act 1979, supra, at p. 721), the Minutes of the Proceedings of the Special Joint Committee, though admissible, and granted somewhat more weight than speeches should not be given too much weight. The inherent unreliability of such statements and speeches is not altered by the mere fact that they pertain to the Charter rather than a statute.

Moreover, the simple fact remains that the Charter is not the product of a few individual public servants, however distinguished, but of a multiplicity of individuals who played major roles in the negotiating, drafting and adoption of the Charter. How can one say with any confidence that within this enormous multiplicity of actors, without forgetting the role of the provinces, the comments of a few federal civil servants can in any way be determinative?”

Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, Lamer, J, at p. 508 (Appellants’ Authorities, TAB 7)

“First, it is clear that s. 10(b) of the Charter does not, in express terms, constitutionalize the right to free and immediate legal advice upon detention. The right to retain and instruct counsel and to be informed of that right, or in French the right to “l'assistance d'un avocat et d'être informé de ce droit” is simply not the same thing as a universal right to free, 24-hour preliminary legal advice. Moreover, there is evidence which shows that the framers of the Charter consciously chose not to constitutionalize a right to state-funded counsel under s. 10 of the Charter: Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada (January 27, 1981). Specifically, a proposed amendment, which would have added the following clause to what is now s. 10 of the Charter was considered and rejected. (p. 46:127):

(d) if without sufficient means to pay for counsel and if the interests of justice so require, to be provided with counsel;

In Re B.C. Motor Vehicle Act [1985] 2 S.C.R. 486 I stated for the majority that while these Minutes are admissible as extrinsic aids to the interpretation of Charter provisions, they should not be given “too much weight”. However, it must be borne in mind that the Minutes at issue in the Re B.C. Motor Vehicle Act recorded the views of civil servants on the meaning that should be given to the words "the principles of fundamental justice" found in s. 7 of the Charter, a task for which the courts are far better qualified.

The situation here is quite different: at issue is a specific clause which was proposed, considered and rejected by our elected representatives. In my opinion, it would be imprudent for this Court not to attribute any significance to the fact that this clause was not adopted. In light of the language of s. 10 of the Charter, which on its face does not guarantee any substantive right to legal advice, and the legislative history of s. 10, which reveals that the framers of the Charter decided not to incorporate into s. 10 even a relatively limited substantive right to legal assistance (i.e., for those "without sufficient means" and "if the interests of justice so require"), it would be a very big step for this Court to interpret the Charter in a manner which imposes a positive constitutional obligation on governments. The fact that such an obligation would almost certainly interfere with governments' allocation of limited resources by requiring them to expend public funds on the provision of a service is, I might add, a further consideration which weighs against this interpretation.” (Emphasis in original)

R. v. Prosper, [1994] 3 S.C.R. 236, Lamer, CJ, at pp. 266-267 (Appellants’ Authorities, TAB 8)

46. In Mahé v. Alberta, in the context of s. 23(3), the Supreme Court referred to the debates before the Special Joint Committee in the following terms:

“The second argument, which was advanced by the respondent, is that s. 23 should be interpreted in light of the legislative debates leading up to its introduction. This Court has stated that such debates may be admitted as evidence, but it has also consistently taken the view that they are of minimal relevance (see Re B.C. Motor Vehicle Act [1985] 2 S.C.R. 486, at pp. 506-7). In this case, the evidence from the legislative debates contributes little to the task of interpreting s. 23 and, accordingly, I place no weight upon it.”

Mahé v. Alberta [1990] 1 S.C.R. 342, at p. 369 (Appellant’s Authorities, TAB 9)

47. While the debates were held by Chief Justice Dickson in Mahé to be of minimal relevance to the interpretation and application of s. 23(3), the Appellants respectfully submit that they are of extreme relevance to the determination of the intent of the framers having regard to s. 23(2).

48. No amendments to the “where numbers warrant clause” in s. 23(3) were proposed during the debates. However, specific amendments to the access provisions in s. 23(2) were proposed that were subsequently either accepted or defeated. This was precisely the consideration that caused Chief Justice Lamer in Prosper to nuance his earlier remarks in Re B.C. Motor Vehicle Act;

49. The following reasonable inferences regarding the intent of the framers of s. 23(2) of the Canadian Charter can be drawn from the evidence of the chronology of proposals for minority language guarantees:

1) The definition of beneficiaries was to be constitutionally determined. The provinces would not be able to legislate to alter the constitutional definition (defeat of the Nystrom amendment);

2) Once the criteria in s. 23(2) have been met, the parent is a beneficiary, regardless of their ethnic or linguistic heritage (adoption of the final text incorporating the Rizzuto amendment);

3) The guarantee was meant to apply to instruction received by children within the province of Quebec, not only in the context of inter-provincial mobility (adoption of the final text incorporating the Rizzuto amendment).

D. The context of the adoption of s. 23(2) of the Canadian Charter

50. When the Charter of the French Language was enacted in 1977, it did not contain any provision relating to entitlement based on the instruction of the child. The sole criterion of entitlement was the language of instruction in Quebec of the parents. The avowed intention of the Quebec legislator was to direct the children of immigrants and French-speaking citizens residing in Quebec to French schools.

51. With the adoption of s. 23(2) in 1982, a separate regime of entitlement based on the language of instruction of the child was introduced. Section 73(2) CFL was enacted in 1993 – it included the requirement that instruction in English constitute the major part of the child’s instruction in English in Canada and it added the criterion of Canadian citizenship.

E. The political compromise in s. 23 of the Canadian Charter

52. In Quebec Protestant School Boards (Appellants’ Authorities, TAB 4), at pp. 79-80, 84, the Supreme Court described in considerable detail the nature of the political compromise enshrined in s. 23.

53. Before Bill 101, with the exception of the two (2) years in which Bill 22 was in force, the regime in Quebec was freedom of choice between existing institutions for citizens and non-citizens. If the framers had wished to provide the same regime across the country as existed in Quebec before Bill 22 and Bill 101, they would have chosen freedom of choice.

54. It is simply not accurate to assert that the intent of the framers was to provide the francophone minority outside Quebec with the same rights as the anglophone minority in Quebec before Bill 101. It is evident that the intent of the framers was to enshrine criteria of membership with ostensible symmetrical application across the country, while at the same time affecting the criterion of the language of instruction of the parents in Bill 101 as little as possible and introducing a new regime of entitlement with respect to the language of instruction of the child.

55. While s. 23 was clearly intended to be symmetrical in its application across the country, it has been asymmetrical in its effect due to the fact that the French-speaking minority in the other provinces is in a different situation from the English-speaking minority in Quebec. In the other provinces, the problem was a lack of facilities to meet the demand, whereas in Quebec, the problem was not a lack of facilities, but a lack of eligible students to populate the existing facilities.

56. This differential effect is reflected in the jurisprudence. In the other provinces, the concern over lack of facilities has generated abundant jurisprudence on the proper interpretation and application of s. 23(3). In Quebec, there has not been a single judgment on the merits dealing with s. 23(3).

F. The conduct of the administrative authorities

57. The Appellants’ interpretation of s. 23(2) to the effect that private instruction generates entitlement is consistent with the manner in which this provision was interpreted and applied by the administrative authorities since its adoption in 1982.

58. Between the adoption of s. 23 in 1982 and the adoption of s. 73(2) CFL in 1993, there was a period of “flottement décisionnel”. The administrative authorities interpreted s. 23(2) as generating three (3) different entitlements regarding the child’s instruction in English: 1) the major part of the child’s instruction, 2) the last completed year and 3) the year in which the application was made, “l’année en cours”.

Testimony of Michel Mailhot before Justice Danielle Grenier in Solski [13]

Testimony of Michel Mailhot before the Tribunal in the present case[14]

Instruction du Ministre de l’Éducation, April 29, 1991[15]

Instruction du Ministre de l’Éducation, June 12, 1991[16]

59. The intention of the Quebec legislator in including the major part requirement in s. 73(2) CFL in 1993 was clearly to prevent entitlements 2) and 3) from continuing to have any application.

60. From the adoption of s. 73(2) CFL in 1993 until the adoption and coming into force of s. 3 of Bill 104 in 2002, the administrative authorities acknowledged that the criterion of the major part of the child’s instruction was satisfied after one (1) year of private instruction in English, provided that the year in question was Primary I, Grade 1, or Secondary I, Grade 7. One (1) year out of one (1) year is the totality, not just the major part, of the child’s primary or secondary instruction, as the case may be.

61. From the adoption of s. 23 in 1982 to the coming into force of s. 3 of the Bill 104 in 2002, the administrative authorities accepted that private instruction generated entitlement.

62. While the conduct of the administrative authorities is not by itself a source of constitutional rights, only the Constitution can confer such rights, this evidence does indicate that allowing parents to invoke private instruction in English in Quebec is a reasonable interpretation of s. 23(2).

G. The purpose of s. 23(2) of the Canadian Charter

63. In Doucet-Boudreau v. Nova Scotia (Minister of Education), the Supreme Court succinctly stated the purpose of s. 23 as follows:

“26 The purpose of s. 23 of the Charter is “to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language flourishes, as far as possible, in provinces where it is not spoken by the majority of the population” (Mahé v. Alberta, [1990] 1 S.C.R. 342, at p. 362). Minority language education rights are the means by which the goals of linguistic and cultural preservation are achieved (see Reference Re Public Schools Act (Man.), [1993] 1 S.C.R. 839, at pp. 849-50) (“Schools Reference”). This Court has, on a number of occasions, observed the close link between language and culture. In Mahé, at p. 362, Dickson C.J. stated:

. . . any broad guarantee of language rights, especially in the context of education, cannot be separated from a concern for the culture associated with the language. Language is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it. It is the means by which individuals understand themselves and the world around them.

27 A further aspect of s. 23 of the Charter is its remedial nature (see, for example, Mahé, supra, at p. 363; Schools Reference, supra, at p. 850; Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, 2000 SCC 1, at para. 26). The section is designed to correct past injustices not only by halting the progressive erosion of minority official language cultures across Canada, but also by actively promoting their flourishing (Mahé, supra, at p. 363; Schools Reference, supra, at p. 850). Section 23 must therefore be construed “in recognition of previous injustices that have gone unredressed and which have required the entrenchment of protection of minority language rights” (Schools Reference, at p. 850; see also Arsenault-Cameron, supra, at para. 27). This Court has made it clear that the fact that language rights arose from political compromise does not alter their nature and importance; consequently, s. 23 must be given the same large and liberal interpretation as all Charter rights (R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 25; Arsenault-Cameron, supra, at para. 27).

Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, (Appellants’ Authorities, TAB 10)

H. The principles of interpretation applicable to s. 23

64. In R. v. Beaulac, the Supreme Court repudiated a restrictive interpretation of language rights:

25 Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada; see Reference re Public Schools Act (Man.), supra, at p. 850. To the extent that Société des Acadiens du Nouveau-Brunswick, supra, at pp. 579-80, stands for a restrictive interpretation of language rights, it is to be rejected. The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply. (Emphasis in original)

R. v. Beaulac, [1999] 1 S.C.R. 768 (Appellants’ Authorities, TAB 11)

65. In Arsenault-Cameron v. Prince Edward Island, this principle was reiterated in the context of s. 23:

27 As this Court recently observed in R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 24, the fact that constitutional language rights resulted from a political compromise is not unique to language rights and does not affect their scope. Like other provisions of the Charter, s. 23 has a remedial aspect; see Mahé, supra, at p. 364. It is therefore important to understand the historical and social context of the situation to be redressed, including the reasons why the system of education was not responsive to the actual needs of the official language minority in 1982 and why it may still not be responsive today. It is clearly necessary to take into account the importance of language and culture in the context of instruction as well as the importance of official language minority schools to the development of the official language community when examining the actions of the government in dealing with the request for services in Summerside. As this Court recently explained in Beaulac, at para. 25, "[l]anguage rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada" (emphasis in original). A purposive interpretation of s. 23 rights is based on the true purpose of redressing past injustices and providing the official language minority with equal access to high quality education in its own language, in circumstances where community development will be enhanced.

Arsenault-Cameron v. Prince Edward Island [2000] 1 S.C.R. 3 (Appellant’s Authorities, TAB 12)

I. Appellants’ interpretation of s. 23(2) is not equivalent to freedom of choice

66. The Tribunal held that the Appellants’ interpretation of s. 23(2) was equivalent to the regime of freedom of choice that existed prior to the adoption of Bill 22 and Bill 101.

67. The current regime is not freedom of choice. The current regime, including s. 23(2), was qualified as a “delayed but deliberate death sentence” in the Report of the Task Force on English Education in 1992, because it denied any real possibility of replenishment for the English school system.

68. The number of children that would be entitled to public instruction in English in Quebec under the Appellants’ interpretation of s. 23(2) is statistically insignificant, given the historical context as a whole, and in particular, the sheer magnitude of the decline in enrolment in English schools since 1971 (57% in relative terms and over 150,000 in absolute numbers).

Répartition du nombre d’élèves selon la langue d’enseignement, ensemble du Québec, 1971-1972 à 2002-2003[17]

Note explicative – Tableau sur l’évolution du nombre d’élèves, selon la langue d’enseignement et Tableaux de la prévision de l’effectif scolaire[18]

Évolution de l’effectif scolaire entre 1998-1999 et 2007-2008[19]

Évolution du nombre d’élèves du secteur des jeunes à l’éducation préscolaire et de l’enseignement primaire et secondaire, selon la langue d’enseignement, ensemble du Québec et région de Montréal de 1971-1972 à 2002-2003[20]

Extracts from the opinion of the Conseil de la langue française, 1993,

and in particular Figure 1[21]

Education Statistics Bulletin, The Linguistic Situation in the Education Sector,

1997-98, and in particular, Table 1[22]

Tables and Graphs filed as Exhibit R-7[23]

69. The cumulative total of the number of children who invoked private instruction to obtain certificates under s. 73(2) CFL up until 2002 to is 8,842 (5,185 children + 3,657 siblings = 8,842).

Admissibilité à l’enseignement en anglais suivant les critères d’exception et la langue maternelle selon l’année visée dans la demande[24]

Graph filed on page 19 of Exhibit R-7[25]

70. When it is considered that there have been over 600,000 certificates of eligibility issued since the beginning of the regime in 1977, the number of children who have availed themselves of private instruction is indeed statistically insignificant (1.47%).

71. An analysis of this evidence reveals that although the enrolment in English schools has been stable since 1993, the reason for this stability in the Montreal metropolitan area was largely due to the possibility of invoking private instruction to obtain access to English public schools. In the rest of Quebec, the stability is largely due to intermarriage.

72. Up-dated information for the 2003-2004 and 2004-2005 school years will be provided by consent or further to a Motion for permission to file new evidence

73. To equate Petitioners’ interpretation of s. 23(2) with the regime of freedom of choice is a gross error that is unsupported by the evidence and in conflict with the principles of interpretation of s. 23 laid down by the Supreme Court discussed above.

J. The linguistic dynamics of the province of Quebec

74. In Reference re Public Schools Act (Man.), the Supreme Court found that “different interpretative approaches may well have to be taken in different jurisdictions, sensitive to the unique blend of linguistic dynamics that have developed in each province.”

Reference re Public Schools Act (Man.) [1993] 1 S.C.R. 839, at p. 851, [Appellant’s Authorities, TAB 13]

75. In these circumstances, the Appellant submits that any recourse to the notion of the particular linguistic dynamics of Quebec must be done in accordance with the purpose of the guarantee set out in s. 23(2) of the Canadian Charter.

76. If s. 23(2) of the Canadian Charter is interpreted purposively, in accordance with its remedial nature and in a manner consistent with the preservation and development of the official English language minority in Canada, the English-speaking minority of Quebec, then the Appellants submit that the exception relating to private instruction in the second to last paragraph of s. 73 CFL should be found to be an infringement of s. 23(2) and the first constitutional question should be answered in the affirmative.

ISSUE II Can the exception relating to private instruction in English in Quebec be read down in order to save it?

A. The exception relating to private instruction cannot be read down

77. The Appellants submit that the exception relating to private instruction cannot be read down. It is an on/off switch. The only ways to conceptually read the exception down would be to specify a minimum duration of private instruction in order to qualify or to restrict the beneficiaries based on some consideration not found in s. 23(2). Neither of these possibilities is consistent with the logic used by the Supreme Court in Solski to read down the major part requirement. Therefore, the second question should be answered in the negative.

ISSUE III If the answer to the first question is affirmative and the answer to the second question is negative, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?”

A. Issue conclusively decided in Quebec Protestant School Boards

78. This issue of whether a provincial statute that infringes s. 23 can constitute a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society was conclusively decided by the Supreme Court in Quebec Protestant School Boards.

A.G. (Que.) v. Quebec Protestant School Boards [1984] 2 S.C.R. 66, 84, 86, 87 (Appellants’ Authorities, TAB 4, the extracts cited at length in para. 33 herein)

79. In Solski, the Supreme Court referred to the possibility of invoking s. 1 of the Canadian Charter in two paragraphs:

“21. . . .

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.”

“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.”

80. The satisfaction of the objective and subjective criteria in s. 23(2) of the Canadian Charter generates entitlement to the special class of beneficiaries foreseen by the framers. An ordinary provincial statute cannot operate to remove that person from the category of beneficiaries – a modification of the class of persons can only be achieved by a constitutional amendment.

81. The Appellants submit that there is nothing in the judgment of the Supreme Court in Solski that would alter the inescapable conclusion to be drawn from the Court’s judgment in Québec Protestant School Board as set out by the Superior Court judge in Solski:

[163] Dans l'arrêt Quebec Association of Protestant School Boards, la Cour suprême a refusé de légitimer l'art. 73 de la Loi 101 par l'art. 1 de la Charte. Elle a statué que l'article 73 redéfinissait pour le Québec les catégories de personnes qui ont droit à l'instruction dans la langue de la minorité et avait pour effet, en restreignant la portée de l'article 23, de modifier la Charte.

[164] La Cour suprême a souligné que puisque le constituant voulait remédier au régime du chapitre VIII de la Loi 101 en adoptant l'art. 23, « il était inconcevable que les restrictions que ce régime impose aux droits relatifs à la langue d'enseignement puissent, pour autant qu'elles sont incompatibles avec l'art. 23, avoir pu être considérés par le constituant comme se confinant à "des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique”.

[165] La Cour suprême a conclu que ce n'est qu'en suivant la procédure prescrite pour modifier la Constitution qu'une législature pourrait validement restructurer ou modifier les catégories de personnes protégées par l'article 23. (L’article 33 de la Charte ne couvre pas l’art. 23.)

[166] Le par. 23(2) ne prévoit aucun délai préalable. Il ne contient pas d'exigence minimale. En ajoutant la condition de la « majeure partie » à l'art. 73 C.L.F., le législateur québécois modifie la catégorie des personnes visées par le par. 23(2) de la Charte. L'article I ne lui est d'aucun secours.

Solski c. P.G. du Québec, (2001) R.J.Q. 218 (Appellants’ Authorities, TAB 2)

82. The appellants submit that as a matter of law, s. 1 cannot operate to allow a provincial statute to remove a parent from the special category of beneficiaries under s. 23(2). For that reason alone, the third question should be answered in the negative.

[1] Pages 73 to 99, Schedule I, Vol. II of Appellants’ factum

[2] Pages 292 to 332, Exhibit R-14, Schedule II, Vol. II of Appellants’ factum

[3] Exhibit R-2, Schedule II, Vol. III of Appellants’ factum

[4] Exhibit R-2, Schedule II, Vol. III of Appellants’ factum

[5] Page 156, Schedule I, Vol. II of Appellants’ factum

[6] Page 67, Exhibit R-1, Schedule II, Vol. II of Appellants’ factum

[7] Pages 114 to 115, Tab 5, Exhibit R-6, Schedule II, Vol. VI of Appellants’ factum

[8] Pages 19 to 20, Tab 1, Exhibit R-6, Schedule II, Vol. VI of Appellants’ factum

[9] Pages 47 to 50, Tab 2, Exhibit R-6, Schedule II, Vol. VI of Appellants’ factum

[10] Page 61, Tab 3, Exhibit R-6, Schedule II, Vol. VI of Appellants’ factum

[11] Pages 72 to 73, page 97, Tab 3, Exhibit R-6, Schedule II, Vol. VI of Appellants’ factum

[12] Pages 73 to 74, page 84, Tab 3, Exhibit R-6, Schedule II, Vol. VI of Appellants’ factum

[13] Exhibit R-5, Schedule II, Vol. V of Appellants’ factum

[14] Exhibit R-3, Schedule II, Vol. IV of Appellants’ factum

[15] Page 116, Tab 6, Exhibit R-6, Schedule II, Vol. VI of Appellants’ factum

[16] Page 122, Tab 7, Exhibit R-6, Schedule II, Vol. VI of Appellants’ factum

[17] Page 290, Exhibit R-12, Schedule II, Vol. II of Appellants’ factum

[18] Page 292, Exhibit R-13, Schedule II, Vol. II of Appellants’ factum

[19] Page 338, Exhibit R-16, Schedule II, Vol. II of Appellants’ factum

[20] Page 219, Tab 16, Exhibit R-11, Schedule II, Vol. IX of Appellants’ factum

[21] Page 153, Tab 14, Exhibit R-6, Schedule II, Vol. VI of Appellants’ factum

[22] Page 156, Tab 15, Exhibit R-6, Schedule II, Vol. VI of Appellants’ factum

[23] Pages 1 to 18, Exhibit R-7, Schedule II, Vol. VII of Appellants’ factum

[24] Page 195, Tab 13, Exhibit R-11, Schedule II, Vol. IX of Appellants’ factum

[25] Page 19, Exhibit R-7, Schedule II, Vol. VII of Appellants’ factum