III. Minority Language Education Rights
Page 12 of 42
Abbey v. Essex County Board of Education (cont.)
The Court of Appeal concluded that subsection 23(2) is triggered by the mere fact that one child is receiving or has received his or her schooling in the minority official language of any given province. In the case at bar, it was originally an admissions committee that agreed to enrol Ms. Abbey’s first child in a French language program, a committee composed of members of the official language minority, who no doubt can be relied on to protect the linguistic and cultural integrity of its schools. But once admission is legally granted, it follows that the rights under subsection 23(2) of the Charter can be invoked.
The reasoning of the Court of Appeal is obviously relevant to the situation of new Canadians as well. As mentioned above, the language in which the children of new Canadians are educated (which in most cases is neither a function of a parent’s mother tongue nor a function of the language in which a parent received primary education) may through a family’s relocation to a different province give rise to claims under subsection 23(2). Whether schooling was begun in English somewhere in Canada outside Quebec, or in French within Quebec, continuity of language of instruction is protected by the rights set out in subsection 23(2), provided that the language in question constitutes the minority official language of the province to which a family moves.
A recent decision of the Quebec Superior Court 47 provides further guidance with respect to the scope of subsection 23(2) when applied to purely intraprovincial circumstances. The facts of the case pertain to a Polish couple who arrived in Quebec in 1990 on a temporary basis for work-related reasons. As required by Quebec law,48 their two children (twins) were enrolled in a French language primary school for the year 1991-1992. They subsequently applied for and received ministerial permission to enrol their children in an English language primary school for the period 1992-1994. The parents returned their children to English school in the fall of 1994, even though the ministerial permit had expired and they were required by Quebec law to enrol them in a French school. Partway through the school year the children were transferred to a French school and completed the remainder of their primary education in French (1994-1997). The children enrolled in an English school for the first year of secondary education (1997-1998), but without the required ministerial permit. Due to the absence of the ministerial permit, the children completed their second year in a French secondary school. Their final year was completed in a private English language secondary school, access to which was not regulated by the Charter of the French Language.
Despite their original intention, the parents decided to remain permanently in Canada and became permanent residents in early 1993. They acquired citizenship in May 1997. Following the first year of secondary schooling in English (without the required permission), the parents applied to appropriate ministerial officials to have their children declared eligible to receive secondary schooling in English.
The application was ultimately rejected for two reasons. First, no authorization had been issued to allow the children to begin their secondary schooling in English. As the first year of attendance was tainted with illegality, it could not become the basis for acquiring eligibility in subsequent years. The second reason given related to the application of provisions in the Charter of the French Language that allow a child (and brothers and sisters) access to English schools where the mother or father is a Canadian citizen and the child has received the major part of his or her primary education in English somewhere in Canada.49 With respect to the children in question, it was determined that in strict mathematical terms the majority of primary education was received in French. The children were thus deemed ineligible to receive instruction in English in publicly funded schools in Quebec.
Before the Quebec Superior Court, the parents argued that the limiting phrase “major part,” applied to current and past primary and secondary education, was incompatible with the terms of subsection 23(2) of the Canadian Charter of Rights and Freedoms. As explained above, that subsection recognizes the right of access to instruction in English (in Quebec) in cases where a child of a Canadian citizen is receiving or has received primary or secondary instruction in English somewhere in Canada. That right is not qualified by any expression such as “major part.” Nevertheless, the Attorney General of Quebec took the position that the eligibility rule set out in the Charter of the French Language was complementary to the rights found in section 23 of the Canadian Charter. He argued that section 23 had been adopted in order to accord rights to members of minority official language communities and that this general purpose should be brought to bear on any interpretation of the more specific continuity rule. As a consequence, individuals with no real linguistic connection to the English-speaking minority of Quebec should not be seen to fall within the scope of subsection 23(2) of the Canadian Charter.50
