PART I - OVERVIEW

1. In these appeals, this Court is being called upon to clarify the category of children who are beneficiaries of the rights guaranteed by subsection 23(2) of the Canadian Charter of Rights and Freedoms (hereinafter "Charter") and the degree of latitude to be given to provincial and territorial governments (hereinafter "provinces") in their implementation of the minority language education rights guaranteed by section 23 of the Charter.
   
   
2. For the Commissioner of Official Languages, the issues raised in the cases at bar are of fundamental importance: the preservation and the development of francophone and anglophone minorities of the country lies at the heart of the purpose of section 23 of the Charter.
3. The interpretation that will be put forward by this Court in determining the scope of subsection 23(2) and the leeway afforded to the provinces in implementing the rights guaranteed in subsection 23(2) could significantly affect the preservation and development of official language minority communities.
4. While the implementation of section 23 of the Charter is contextual and must be sensitive to the unique blend of linguistic dynamics in each province and territory, it is the situation to be redressed, more particularly the situation of the official language minority, that should be considered in determining whether there has been a breach of the rights entrenched by section 23 of the Charter.
5. Therefore, the criteria or measures adopted by the provinces in their implementation of subsection 23(2) should be consistent with the purpose and remedial nature of that provision and capable of ensuring that the children meant to be protected will actually be admitted to minority language schools.
   
   
6. The children that are meant to be protected by subsection 23(2) are those who, based on a qualitative assessment of their overall educational experience, taking into account the factors outlined by this Court in Solski, can demonstrate a genuine commitment to pursue a minority language educational experience.

PART II - POINTS IN ISSUE

7. The constitutional questions at issue in theses cases are as follows:

ISSUE I Do the second and third paragraphs of s. 73 of the Charter of the French Language, R.S.Q., c. C-11, infringe s. 23(2) of the Canadian Charter of Rights and Freedoms?

ISSUE II If so, 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?

PART III - STATEMENT OF ARGUMENT

8. In these appeals, the Commissioner does not question the principles underlying the Charter of the French Language, R.S.Q., c. C-11. In that respect, the Intervener endorses the finding of this Court in Ford:

   [T]he aim of the language policy underlying the Charter of the French Language was a serious and legitimate one. [The evidence indicates] the concern about the survival of the French language and the perceived need for an adequate legislative response to the problem.

   Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 at 778-779

9. However, it is the Commissioner’s position that consideration of the social and historical context cannot have the effect of restricting the scope of subsection 23(2) rights. The classes of persons identified as entitled to the rights in section 23 are "at the very heart of the provision".

   Attorney General (Quebec) v. Quebec Protestant School Boards, [1984] 2 S.C.R. 66 at 86

10. The issues stated in this case therefore turn on the proper interpretation of the rights protected under section 23, which requires that consideration be given to the provision’s purpose.

A. THE INTERPRETATION OF SECTION 23 OF THE CHARTER

11. Like all other Charter rights, section 23 must be interpreted according to its purpose. The general purpose of section 23 of the Charter was described as follows by this Court in Mahe:

    The general purpose of s. 23 is clear: it 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. The section aims at achieving this goal by granting minority language educational rights to minority language parents throughout Canada.

    Mahe v. Alberta, [1990] 1 S.C.R. 342 at 362

12. A further important aspect of the minority language education rights entrenched in section 23 is that they are remedial in nature. As this Court stated in Mahe v. Alberta:

    It was designed to remedy an existing problem in Canada, and hence to alter the status quo. As Kerans J.A. succinctly put it, "the very existence of the section implies the inadequacy of the present regime" «…»

    In my view the appellants are fully justified in submitting that "history reveals that s. 23 was designed to correct, on a national scale, the progressive erosion of minority official language groups and to give effect to the concept of the ‘equal partnership' of the two official language groups in the context of education."

    Mahe v. Alberta, [1990] 1 S.C.R. 342 at 363-364

13. It is in considering the remedial nature of section 23 that this Court has contemplated the historical and social context in its analysis of the minority language education rights provided by that provision. As this Court stated in Arsenault-Cameron:

    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. […] 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. [emphasis added]

    In light of the importance of this remedial purpose, the trial judge properly began his reasons by explaining the historical background of the official language minority in Prince Edward Island and in Summerside «…» [emphasis added]

    Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3 at paras. 27-28

    See also Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3 at paras. 37-40

14. In Solski, this Court highlighted the national character of section 23 and the need to adopt a uniform interpretation of those rights, while carefully delineating the role that the historical and social context of a province can play in a section 23 analysis:

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 «…». [emphasis added]

Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201 at para. 21

15. The interpretation of the rights entrenched in section 23 cannot be both national in character and uniform on the one hand, and contextual, varying from province to province, on the other. Thus, it is the implementation or application of section 23 by the provinces that is contextual, and not the interpretation of the rights provided by that section.
    
    
16. Later in that same judgment, this Court stated the following: The application of s. 23 is contextual. It must take into account the very real differences between the situations of the minority language community in Quebec and the minority language communities of the territories and the other provinces. [emphasis added]

    Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201 at para. 34

17. Again here, the emphasis is on the particular situation of the linguistic minority, a situation that differs from one province or territory to the other. Thus, the particular context of an official language minority should be taken into consideration to determine if the criteria adopted by a province are consistent with the purpose of section 23. However, it should not have the effect of limiting the scope of subsection 23(2) and excluding children that would otherwise be protected.
    
    
18. As is indicated in the Arsenault-Cameron and Solski decisions, it is the historical and social context of the situation to be redressed, more particularly the situation of the official language minority of the province, that must be considered to determine whether there has been a breach of the rights entrenched by section 23, and not, as is argued by the Attorney General of Quebec, the legislative objective of the provisions whose constitutionality are being challenged. Consideration of the legislative objective of the contested measure is precisely what is called for and more appropriately performed under the section 1 analysis.

    Factum of the Appellant, File N^o 32229 at para. 33

    R v. Oakes, [1986] 1 S.C.R. 103 at 138-140

19. The proper starting point in interpreting the scope of subsection 23(2) must therefore be the language of the provision, read in light of the purpose of section 23 and its remedial nature.

B. THE SCOPE OF SUBSECTION 23(2) OF THE CHARTER

20. The Commissioner submits that the scope of subsection 23(2) should be determined in accordance with the analytical framework laid out by this Court in Solski.
    
    
21. Subsection 23(2) of the Charter provides that the qualifying standard is the language of instruction of the child, regardless of the language of instruction received by the parents (ss. 23(1)(b)). It is the fact that the child has received or is receiving his or her education that guarantees the right to continue that education (as well as the child’s siblings) in the language of the minority. This is clear on the face of subsection 23(2).
    
    
22. Thus, if a child has legally received their instruction in the minority language, the parents then "become" right-holders under subsection 23(2) (as opposed to ss. 23(1)(b)), in which case the parents would have already received their instruction). Because the qualifying standard is the "instruction received by the child", the parents, who may not be French or English, can nevertheless be properly included under subsection 23(2). As this Court stated in Solski:

    In this respect, s. 23(2) applies without regard to the fact that qualified parents or children may not be French or English, or may not speak those languages at home, despite the fact that the ultimate goal of s. 23 is to protect and promote minority language communities. The conditions for qualification under s. 23 reflect the fact that new Canadians in particular will decide to adopt one or the other official languages, or both, as participants in the Canadian language regime. [emphasis added]

    Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201 at para. 31

    See also Mahe v. Alberta, [1990] 1 S.C.R. 342 at 379, Re Education Act (Ont.) and Minority Language Education Rights (1984), 10 D.L.R. (4^th) 491 at 519, Abbey v. Essex County Board of Education (1999), 42 O.R. (3^d) 481 at 488-489

23. As is highlighted in the above citation, interpreting subsection 23(2) according to its plain meaning does not change the purpose of section 23, which is to preserve and promote the official language minority community of the province. It is the official language minority that is itself a "true beneficiary" of section 23. This approach is also consistent with the remedial nature of the provision.

    Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3 at para. 29

    Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201 at para. 33

24. Thus, in order to purposely assess whether a child meets the requirements of subsection 23(2), namely whether or not the child has developed a sufficient link with the minority language or whether the parents have decided to adopt the minority language as the language of instruction for their child, this Court has enumerated a series of factors to evaluate the instruction received by the child. Those factors are: How much time was spent in each program? At what stage of education was the choice of language of instruction made? What programs are or were available? Do learning disabilities or other difficulties exist?

    Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201 at paras. 33, 38-45

25. The factors enumerated in Solski seek to assess whether the context of the choice of language of instruction is "evidence of a genuine commitment to a minority language educational experience". Such a commitment is an indication that the child has developed a sufficient link with the minority language, thus engaging the protection offered by subsection 23(2).

    Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201 at para. 47

26. This Court further specified that the assessment of the choice of language of instruction must be both subjective and objective: subjective in the sense that all of the circumstances of the child must be taken into consideration, and objective in the sense that the decision-maker must be able to determine whether, taking into account the child’s personal circumstances and educational experience, his or her admission is consistent with provision’s general purpose and the specific purpose of subsection 23(2).

    Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201 at para 28

27. The specific purpose of subsection 23(2) is threefold: to provide continuity of minority language education rights, to accommodate mobility (both intra-provincial and inter-provincial), and to ensure family unity.

    Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201 at para. 30

28. Therefore, the criteria or measures adopted by the provinces in their implementation of subsection 23(2) should be consistent with the purposes of that provision and capable of ensuring that the children meant to be protected (those who can demonstrate a genuine commitment to pursue a minority language education) will actually be admitted to minority language schools.

C. THE IMPLEMENTATION OF SUBSECTION 23(2) RIGHTS

29. In implementing their constitutional obligation to provide minority language instruction, the provinces can establish criteria allowing them to make a qualitative assessment of the child’s overall educational experience in order to determine whether there exists evidence of a genuine commitment to pursue a minority language education:

    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).

    Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201 at para. 48

30. Subsection 73(2) of the Charter of French Language is the province of Quebec’s approach to the implementation of the rights entrenched by section 23(2), and as this Court stated in Gosselin, "[t]he purpose of s. 73 is not to "exclude" but rather to implement the positive constitutional responsibility incumbent upon all provinces to offer minority language instruction to its minority language community." [emphasis in original]

Gosselin (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 238 at para. 16

31. In establishing criteria to implement their obligations, the provinces or minority language school boards may expand on the right to access a minority language instruction beyond the categories of right-holders set out in section 23, if - and only if - it is in the interest of the child, the family, and the minority language community. The ultimate limit on the latitude given to provinces in this regard would be not to transform minority language schools into immersion schools for the majority.

    Gosselin (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. at para. 31

32. However, the criteria adopted by the provinces cannot have the effect of excluding the categories of children meant to be protected by section 23. Section 23 does in fact restrict provincial or territorial jurisdiction over education. As such, the Commissioner submits that:

    �� A province could not require children to have a working knowledge of the minority language, or to be members of a cultural group that identifies with the minority language.

    �� A province could not disregard the subjective and objective factors identified by this Court as being relevant in determining whether there exists a genuine commitment to pursue a minority language education.

    �� A province could not adopt criteria that were strictly quantitative in its assessment of the instruction received.

    �� A province could not adopt an "artificial ‘snapshot’ approach".

    Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201 at paras. 33, 48

33. Such criteria would be contrary to the general purpose of section 23 and the specific purpose of subsection 23(2), and would have the effect of excluding a category of children of the possibility of qualifying for admission based on a qualitative assessment of their overall educational experience. As such, such criteria would constitute a limitation of the rights set out in section 23 and must therefore be justified by the province within the meaning of section 1 of the Charter.

PART IV - SUBMISSIONS ON COSTS

34. The Intervener, the Commissioner of Official Languages for Canada, makes no submissions as to costs.

PART V - ORDER SOUGHT

36. The Intervener, the Commissioner of Official Languages, takes no position as to the outcome of this appeal.

Ottawa, province of Ontario, this 12^th day of November, 2008

_____________________________

M^e Pascale Giguère
M^e Kevin Shaar
Counsel for the intervener,
Commissioner of Official Languages
for Canada

PART VI – TABLE OF AUTHORITIES

Paragraph(s)

Abbey v. Essex County Board of Education (1999), 42 O.R. (3^d) 481................................22

Attorney General (Quebec) v. Quebec Protestant School Boards,
[1984] 2 S.C.R. 66...........................................................................................................9

Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3..................................13, 23

Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3......................13

Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712....................................................8

Gosselin (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 238.......................30, 31

Mahe v. Alberta, [1990] 1 S.C.R. 342...................................................................11, 12, 22

R. v. Oakes, [1986] 1 S.C.R. 103.....................................................................................18

Re Education Act (Ont.) and Minority Language Rights (1984),
10 D.L.R. (4^th) 491.........................................................................................................22

Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201...........................14, 16,
                                                                                             22, 23, 24, 25, 26, 27, 29, 32

PART VII – STATUTORY PROVISIONS

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, sections 1, 23

Charter of the French Language, R.S.Q., c. C-11, sections 73(2) and (3)