solski (tutor of) v.
Edwidge Casimir Appellant
v.
Attorney General of
and
Attorney General of
et conseillers scolaires francophones, Commission nationale des
parents francophones, Commissioner of Official Languages for
Association franco-ontarienne des conseils scolaires catholiques,
Association des conseillers(ères) des écoles publiques de l'Ontario,
Fédération des communautés francophones et acadiennes du
and Fédération des associations de juristes d'expression française de
common law inc. Interveners
Indexed as: Solski
(Tutor of) v.
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
Constitutional law - Charter of Rights - Minority language education
rights - Claimants' children declared not eligible for public instruction in English in
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
Claimants' children declared not eligible for public
instruction in English in
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
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
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
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.
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.
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.
The
qualification of unsubsidized private schools and education received in English
pursuant to temporary stay certificates was raised.
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
Cases Cited
Referred to: Reference re
Secession of
Mahe v.
2 S.C.R. 712;Doucet-Boudreau v.
3 S.C.R. 3, 2003 SCC 62; Arsenault-Cameron v.
1 S.C.R. 3, 2000 SCC 1; Lavigne v.
Languages), [2002] 2 S.C.R. 773, 2002 SCC 53; Attorney
General of
Association of Protestant School Boards, [1984] 2 S.C.R. 66;
Reference re Public Schools Act (
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. 18, [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
Colin K. Irving and Douglas Mitchell, for the intervener the Commissioner of
Official Languages for
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
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
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
3 Education rights play a fundamental role in promoting and preserving minority
language communities. Indeed, "minority 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.
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
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
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
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
which possesses a distinct culture. This is not merely the result of chance. The
social and demographic reality of
establishing a federal structure for the Canadian union in 1867. The experience of
both
Vict., c. 35, had not been satisfactory. The federal structure adopted at
Confederation enabled French-speaking Canadians to form a numerical majority in
the
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
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
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
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
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. L'enseignement se donne en français dans
les classes maternelles, dans les écoles primaires
et secondaires sous réserve des exceptions
prévues au présent chapitre.
72. Instruction in the kindergarten classes and
in the elementary and secondary schools shall be
in French, except where this chapter allows
otherwise.
Cette disposition vaut pour les
organismes scolaires au sens de l'Annexe et
pour les établissements d'enseignement privés
agréés aux fins de subventions en vertu de la Loi
sur l'enseignement privé (chapitre E-9.1) en ce
qui concerne les services éducatifs qui font
l'objet d'un agrément.
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.
Le présent article n'empêche pas
l'enseignement en anglais afin d'en favoriser
l'apprentissage, selon les modalités et aux
conditions prescrites dans le Régime
pédagogique établi par le gouvernement en vertu
de l'article 447 de la Loi sur l'instruction publique
(chapitre I-13.3).
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. Peuvent recevoir l'enseignement en anglais,
à la demande de l'un de leurs parents:
73. The following children, at the request of one
of their parents, may receive instruction in
English:
(1) les enfants dont le père ou la mère est
citoyen canadien et a reçu un
enseignement primaire en anglais au
constitue la majeure partie de
l'enseignement primaire reçu au
1) a child whose father or mother is a
Canadian citizen and received
elementary instruction in English in
instruction constitutes the major
part of the elementary instruction
he or she received in
(2) les enfants dont le père ou la mère
est citoyen canadien et qui ont reçu
ou reçoivent un enseignement
primaire ou secondaire en anglais
au
frères et soeurs, pourvu que cet
enseignement constitue la majeure
partie de l'enseignement primaire
ou secondaire reçu au
(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
sisters of that child, provided that
that instruction constitutes the
major part of the elementary or
secondary instruction received by
the child in
(3) les enfants dont le père et la mère
ne sont pas citoyens canadiens
mais don't l'un d'eux a reçu un
enseignement primaire en anglais
au Québec, pourvu que cet
enseignement constitue la majeure
partie de l'enseignement primaire
reçu au Québec;
(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) les enfants qui, lors de leur dernière
année de scolarité au Québec
avant le 26 août 1977, recevaient
l'enseignement en anglais dans une
classe maternelle publique ou à
l'école primaire ou secondaire, de
même que leurs frères et soeurs;
(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) les enfants dont le père ou la mère
résidait au Québec le 26 août
1977, et avait reçu un
enseignement primaire en anglais
hors du Québec, pourvu que cet
enseignement constitue la majeure
partie de l'enseignement primaire
reçu hors du Québec.
(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.
Il n'est toutefois pas tenu compte de
l'enseignement en anglais reçu au Québec
dans un établissement d'enseignement privé
non agréé aux fins de subventions par
l'enfant pour qui la demande est faite ou
par l'un de ses frères et soeurs. Il en est de
même de l'enseignement en anglais reçu au
Québec dans un tel établissement, après le
1er octobre 2002, par le père ou la mère de
l'enfant.
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.
Il n'est pas tenu compte non plus de
l'enseignement en anglais reçu en
application d'une autorisation particulière
accordée en vertu des articles 81, 85 ou
85.1.
Instruction in English received pursuant
to a special authorization under section 81,
85 or 85.1 shall also be disregarded.
75. Le ministre de l'Éducation peut conférer à
des personnes qu'il désigne le pouvoir de
vérifier l'admissibilité des enfants à
l'enseignement en anglais en vertu de l'un ou
l'autre des articles 73, 81, 85 et 86.1 et de statuer
à ce sujet.
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) Les citoyens canadiens :
23. (1) Citizens
of
a) dont la première langue apprise et encore
comprise est
anglophone de la province où ils résident,
(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) qui ont reçu leur
instruction, au niveau primaire, en français ou en
anglais au
province où la langue dans laquelle ils ont reçu
cette instruction est
ou anglophone de la province,
ont, dans l'un ou l'autre cas, le droit d'y faire
instruire leurs enfants, aux niveaux primaire et
secondaire, dans cette langue.
(b) who have received their primary school
instruction in
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) Les citoyens canadiens dont un enfant a
reçu ou reçoit son instruction, au niveau primaire
ou secondaire, en français ou en anglais au
enfants, aux niveaux primaire et secondaire, dans
la langue de cette instruction.
(2) Citizens of
has received or is receiving primary or secondary
school instruction in English or French in
receive primary and secondary school
instruction in the same language.
(3) Le droit reconnu aux citoyens canadiens
par les paragraphes (1) et (2) de faire instruire
leurs enfants, aux niveaux primaire et secondaire,
dans la langue de la minorité francophone ou
anglophone d'une province :
(3) The right of
citizens of
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) s'exerce partout dans la province où le
nombre des enfants des citoyens qui ont ce droit
est suffisant pour justifier à leur endroit la
prestation, sur les fonds publics, de l'instruction
dans la langue de la minorité;
(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) comprend, lorsque le nombre de ces
enfants le justifie, le droit de les faire instruire
dans des établissements d'enseignement de la
minorité linguistique financés sur les fonds
publics.
(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.
59. (1) L'alinéa 23(1)a) entre en vigueur pour le
Québec à la date fixée par proclamation de la
Reine ou du gouverneur général sous le grand
sceau du
(2) La proclamation visée au paragraphe (1)
ne peut être prise qu'après autorisation de
l'assemblée législative ou du gouvernement du
Québec.
59. (1) Paragraph 23(1)(a) shall come into force in
respect of
proclamation issued by the Queen or the
Governor General under the Great Seal of
(2) A proclamation under subsection (1)
shall be issued only where authorized by the
legislative assembly or government of
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
school on a temporary basis pursuant to s. 85 of the CFL. In
1993, the Solski family decided to settle in
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
16 Marie Lacroix is a Canadian citizen who completed her own primary and
secondary instruction in French schools in
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
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
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
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.
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
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
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
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 (
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
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
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
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
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
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;
26 This strict mathematical approach is also advocated by the Attorney General of
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
primary or secondary school instruction in English or French
in
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
minority language education rights are taken away, the right to take up a job in any
part of
language. . . .
Similarly French-speaking Canadians do not want to move to other
parts of
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. P. Mendes, eds., The Canadian Charter of Rights and Freedoms (3rd ed. 1996), 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
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
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
(
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 (
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.
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
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
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
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
(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
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
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
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
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
53 The
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
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
55 The legislature's
concern about interprovincial immigration, that is individuals who immigrate to
another province in
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
Solicitors for the intervener the Commissioner of Official
Languages for
Solicitors for the interveners Fédération nationale des conseillères
et conseillers scolaires francophones and Commission nationale des parents
francophones:
Patterson Palmer,
Solicitors for the interveners Association franco-ontarienne des
conseils scolaires catholiques and Association des conseillers(ères) des écoles publiques
de l'Ontario: Heenan
Blaikie,
Solicitors for the interveners Fédération des communautés
francophones et acadiennes du
d'expression française de common law inc.: Heenan Blaikie,
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