III. Minority Language Education Rights
Page 7 of 26
3.1 Access to Minority Language Schools
Eligibility Rule for Access: "Major Part of School Instruction"
Solski et al. v. A.G. Quebec
Access to English language schools in Quebec finds its constitutional source in ss. 23(1)(b) of the Canadian Charter of Rights and Freedoms, which recognizes the right of citizens of Canada to educate their children at the primary and secondary level in the official minority language of the province where they reside, if such citizens have themselves received their primary school instruction in that language somewhere in Canada.60 The Charter [at ss. 23(2)] also provides a continuity of language of instruction guarantee designed to ensure that all children in the same family have access to the same language of instruction.61
These constitutional provisions have been embodied in Quebec law under subsection 73(1) and (2) of the Charter of the French Language, which provides:
"The following children, at the request of one of their parents, may receive instruction in English:
(1) a child whose father or mother is a Canadian citizen and received elementary instruction in English in Canada, provided that that instruction constitutes the major part of the elementary instruction he or she received in Canada; (emphasis added)
(2) a child whose father or mother is a Canadian citizen and who has received or is receiving elementary or secondary instruction in English in Canada, and the brothers and sisters of that child, provided that that instruction constitutes the major part of the elementary or secondary instruction received by the child in Canada."62 (emphasis added)
Reference in these legislative provisions to the "major part" of school instruction has no counterpart in the wording of ss. 23(2) of the Charter. The question therefore arises as to whether the statutory language and policy underpinning it are compatible with the Charter right.
The last Language Rights Report reviewed the case of Solski v. Quebec in which the Quebec Superior Court ruled that the statutory restriction of language guarantees under ss. 23(2) of the Charter violated the Constitution.63
The Court of Appeal of Quebec has now overturned the lower court decision.64 As a point of departure, the Court of Appeal emphasized that any analysis of a Charter right must be undertaken by reference to its underlying purpose and in light of relevant linguistic, philosophical and historical contexts.65 The Court therefore reviewed in detail the work of numerous commissions that had studied and reported on the condition of the French language in Quebec and Canada, past statutory frameworks designed to promote its use and development as a primary language of school instruction, constitutional changes introduced in 1982 and the litigation that subsequently ensued. This historical synopsis included reference to past economic and social disadvantages that French Canadians in Quebec had suffered, as well as the marked tendency of immigrants to choose English as a second language for themselves and their children. Believing that the use of French in Quebec would inevitably decline in the face of demographic and economic pressures, the Quebec government first adopted comprehensive legislation in 1974 declaring French to be the official language of the province. Access to English language schools was at that time made contingent upon a child's sufficient knowledge of English, to be determined by appropriate language testing. This eligibility rule (which had proven difficult to implement in a fair and impartial manner) was subsequently replaced by relevant provisions in the Charter of the French Language (1977) that allowed access only where the mother or father of a child had received his or her primary instruction in English in Quebec.
Following a court decision66 that interpreted the provision as requiring that the totality of primary instruction be in English, the Quebec government modified (1983) the relevant section so as to require such instruction to have been only a "major part" of a parent's primary schooling in Quebec. This section was ultimately found by the Supreme Court of Canada to be contrary to section 23 of the Canadian Charter of Rights and Freedoms in so far as it required that the primary school instruction in English have taken place in Quebec.67 It was in light of that Supreme Court decision that legislative changes were made (1993) formally replacing the so-called Quebec clause with the eligibility criteria found in the Canadian Charter regarding the language in which a parent received his or her primary schooling anywhere in Canada.
Although the claim of the plaintiffs invoked the specific provisions found in ss. 23(2) of the Canadian Charter involving continuity of language of instruction, the Court of Appeal felt it important to consider the more general purposes that lay behind section 23 as a whole. The Court of Appeal therefore quoted from a number of Supreme Court decisions, in particular observations made by the Supreme Court in Mahé:
"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.
My reference to cultures is significant: it is based on the fact that 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..."68
It also quoted with approval observations made by the Supreme Court in 1984 to the effect that section 23 was motivated by a desire "...to adopt a general rule guaranteeing the Francophone and Anglophone minorities in Canada an important part of the rights which the Anglophone minority in Quebec had enjoyed with respect to the language of instruction before Bill 101 was adopted"69 It concluded that the specific wording of ss. 23(2), in particular the expression "has received or is receiving primary school instruction in English or French in Canada", must be interpreted in light of the general purposes that motivated the adoption of section 23 as a whole.
Having reproduced various portions of past Supreme Court decisions, the Court of Appeal went on to express its concern that arguments made by the plaintiffs would essentially establish a principle of freedom of choice in language of instruction in Quebec:
"[our translation] The respondents and the interveners argued that it will only be necessary for one of their children to have received or be receiving instruction in English in Quebec at some point in his or her school career for the child to acquire an absolute right to pursue that instruction in the public system provided for the Anglophone minority in Quebec, and that the right would exist for the child's brothers and sisters and their descendants, however long the period of instruction received lasted.."70
Referring to the lower court decision, the Court of Appeal declared:
"[our translation] The judgment a quo essentially, as the appellant argued, enshrines the unprecedented rights of all parents to choose their children's language of instruction, when the framers of the Constitution clearly intended not to give language rights that scope. The interpretation given by the judge would allow quasi-automatic access to English schools in Quebec for children of the Francophone majority or of allophones who would complete a brief period in the private English schools that receive no grants so they could be eligible for public or private grant-aided schools. This interpretation and its consequences certainly run contrary to the objective of s. 23, accentuating still further the imbalance existing between Francophone and Anglophone groups in Canada, in a North American context that is very largely dominated by English."71
The Court of Appeal would appear to view one of the purposes behind section 23 as related to protecting the position of the French language in Quebec, despite the fact that French is the majority language of the province. In this regard, it ties the interpretation of section 23 to the presumed collective rights of the French majority in Quebec:
"[our translation] In the Court's view, as already stated, language rights are specified in the Constitution in order to protect the official language minorities in Canada. Of course it is for each individual to claim his or her right to be educated in the minority language if he or she meets the constitutional criteria, but the fact remains that in Canada language rights, if we look at their historical and sociological background, are first and foremost collective rights (based on a community).
In enacting s. 23(2), the framers of the Constitution were aware of the situation existing in Quebec at that time and the stated need to ensure that French would continue to exist in the territory of Quebec."72
As mentioned above, the Court of Appeal was apparently concerned about giving an interpretation to ss. 23(2) that would have allowed members of the French-speaking majority of Quebec to gain access to English public schools by enrolling a child for a short period of time in an English language private school (not subject to the relevant provisions of the Charter of the French Language) and then claiming a constitutional right to that child's enrollment in the public school sector serving the minority English community. This was in fact the situation of one of the intervenors who had been joined to the original Solski action, a mother who had received her primary and secondary education in French in Quebec. Deference to the collective rights of the French majority is also reflected in the Court of Appeal's view that:
"[our translation] The Canadian Charter does not specify the extent of instruction received in order to enjoy access to education in one language or another. The Quebec legislator, for its part, has performed its constitutional duty regarding education in English and has been more specific in drafting the legislation. As the Quebec legislator has exclusive jurisdiction over education, there was no requirement that both pieces of legislation be identical in every respect."73
The Court of Appeal also found inspiration in past pronouncements of the Supreme Court of Canada declaring language rights to be a unique species of right based on a political compromise that should not be lightly interfered with by the courts.74
The Court of Appeal also identified factors that appear more significant when interpreting ss. 23(2) of the Charter. It pointed out that the framers of ss. 23(2) must have had in mind the situation of children who had not yet completed their schooling, as well as the principle of inter-provincial mobility found in section 6 of the same Charter. The Court therefore concluded that the framers were concerned to ensure that a child who changed his or her province of residence would be able to continue his or her schooling in the official language in which it was commenced. Although the Court of Appeal acknowledged that a sister court in Ontario (Court of Appeal of Ontario) had ruled that inter-provincial movement was not essential to invoking ss. 23(2) rights, it distinguished that decision on the basis that no illegality was involved in the Ontario case with respect to minority school enrollment.75 In the case before it (as it regarded Solski), the children in question attended an English-language school in 1997 and completed grade 7 without the requisite ministerial permit. The Court of Appeal therefore refused to apply the decision in the Ontario case to a situation where the attendance of children at an English-language public school in Quebec was tainted, in its view, with illegality.
Application for leave to appeal this decision was subsequently filed before the Supreme Court of Canada on behalf of the intervener Edwidge Casimir.76
