1. Minority Language Education Rights
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Section 23 of the Canadian Charter of Rights and Freedoms (Charter) gives parents belonging to an official language minority the right to have their children educated in that language. In addition to the right to access to minority language instruction, section 23 also guarantees the right to minority language educational facilities and the right to manage and control those facilities. Provinces and territories are responsible for the implementation of minority language education rights.
The rights conferred by section 23 are both collective and individual. They are individual in the sense that they apply to parents belonging to one of the three rights-holder categories:9 persons whose first language learned and still understood is that of the minority of the province in which they reside, those who have received their primary school instruction in Canada in the minority language of the province where they reside and those whose child has received or is receiving primary or secondary school instruction in the minority language of the province where they reside. The collective aspect of the rights conferred by section 23 results from the fact that their purpose is to protect and preserve both official languages and the cultures associated with them throughout Canada. Thus, the scope and nature of the obligations on governments to provide facilities and programs varies in terms of the number of students likely to make use of such services.10
Over the years, the courts have developed various principles to guide the interpretation of section 23. First, as the Supreme Court of Canada explained in Mahe, section 23 must be interpreted in accordance with its purpose, which is to maintain the two official languages of Canada and to give the minority control over “those aspects of education which pertain to or have an effect upon their language and culture.”11 The Court later added that the remedial nature of section 23 must also be taken into account and an interpretation based on the purpose of that provision “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.”12 Finally, the application of section 23 is contextual, meaning that it depends on the unique situation of the linguistic minority in each province.13
Most court actions seeking to enforce section 23 of the Charter have dealt with the right to minority language educational facilities and the right to manage and control these facilities. In Mahe, the Supreme Court of Canada held that it is essential that parents belonging to a minority language community have a certain amount of management and control over the educational facilities in which their children are taught in order to ensure that the language and culture of linguistic minorities in each province survive and flourish.14 The content of these rights depends largely on the number of children who may make use of them, that is, the “rights holders.” For example, in some cases, the right to these facilities may require the establishment of separate classes for the minority within majority schools, while in other cases the number of students might warrant the creation of minority schools entirely separate from those of the majority.15 As for the right to management and control of these facilities, this could mean representation of the minority on a majority school board, while in other cases it could require the existence of minority school boards.16
The right conferred by section 23 also includes that of having an education of equivalent quality to that which is provided to the members of the language majority:
Section 23 is premised on the fact that substantive equality requires that official language minorities be treated differently, if necessary, according to their particular circumstances and needs, in order to provide them with a standard of education equivalent to that of the official language majority.17
Finally, in order to ensure respect for minority language education rights, the courts have had recourse to “specific remedial measures” to correct the situation created by government inaction. This was the case in Doucet-Boudreau,18 in which a trial judge who had found that there was a breach of section 23 of the Charter declared the Court competent to obtain updates on the instructions issued to the province to provide French-language teaching facilities within specified deadlines. The Supreme Court of Canada held that such remedial measures had proven necessary since the risk of assimilation would continue to increase as long as the government did not fulfill its obligations under section 23 of the Charter.19
Over the two-year period covered by this report, two judgments of the Supreme Court of Canada have dealt with Quebec legislation on minority language education. More specifically, in Gosselin, the Supreme Court had to consider the request by certain members of the Francophone majority in Quebec to exercise a right belonging to the province’s Anglophone minority.
In Quebec, access to English-language schools derives its constitutional source from paragraph 23(1)(b) and subsection 23(2) of the Charter.20 Subsections 73(1) and (2)of the Charter of the French Language 21 (CFL) give the right to English education to children:
- [...] 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;
- [...] 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. [emphasis added]
Section 73 also states that English instruction received in Quebec in a private educational institution and English instruction received pursuant to a special authorization shall be disregarded in calculating the instruction received.
The judgments considered in this part analyzed section 73 of the CFL in light of section 23 of the Charter and confirmed the contextual approach taken by the Supreme Court of Canada in interpreting and applying minority language instruction rights. They also considered the difficult question of the accessibility of minority language education in Quebec, in a context where the majority language of the province is nevertheless the minority language in Canada as a whole.
Solski (Tutor of) v. Quebec (Attorney General)
In Solski,22 the Supreme Court considered the question of Anglophone minority language education rights in Quebec. It had to decide whether subsection 73(2) of the CFL, which requires that children receive the “major part” of their education in English in order to obtain certificates of eligibility to attend English-language public schools, was consistent with subsection 23(2) of the Charter.
The parents of three families had requested certificates of eligibility to allow their children to attend English-language public schools in Quebec. These certificates were denied on the basis that the children had not completed the “major part” of their instruction in English as required by subsection 73(2) of the CFL. The Quebec Minister interpreted this requirement according to a mathematical formula, only considering the number of months spent studying in each language, without taking into account other factors such as the existence of education programs, learning problems or other difficulties. The Review Committee on Language Instruction and the Quebec Administrative Tribunal upheld these decisions with regards to two of the families. During the proceedings before the Administrative Tribunal, one family asked the Superior Court to render a declaratory judgment on the legality of subsection 73(2) of the CFL.
In its judgment, the Superior Court held that subsection 73(2) was inconsistent with subsection 23(2) of the Charter to the extent that it limited the category of persons eligible to receive minority language education beyond the provisions of the Charter. However, the Court of Appeal set aside the Superior Court’s decision, concluding that the “major part” requirement set out in subsection 73(2) was consistent with the Charter.
In a unanimous decision, the Supreme Court allowed the appeal in part. It began its analysis by discussing the rules of interpretation applicable to section 23 of the Charter and by insisting on their national scope and remedial nature. These rights must be given a broad and liberal interpretation, taking into account the differences between the minority language community in Quebec and the minority language communities in other provinces and territories. Thus, the Court indicated that the application of subsection 23(2) should be contextual, meaning that the provinces may implement this right according to their individual situations.
1) “Major part” requirement
The Supreme Court rejected the mathematical application of the “major part” requirement in favour of a qualitative assessment of the child’s educational experience. This involved determining whether the child received a “significant part” of his or her instruction, taken as a whole, in the minority language.23 Ultimately, the Court concluded “the past and present educational experience of the child is the best indicator of genuine commitment to a minority language education.” 24
2) Factors to be considered in determining commitment
The subjective assessment suggested by the Supreme Court attempts to identify the existence or absence of a commitment by the child to education in the minority language. This assessment involves reviewing the child’s situation as a whole, including a review of all the following criteria:
- Length of time instruction was received in each language
Subsection 23(2) of the Charter does not specify a minimum amount of time a child must be instructed in a minority language to benefit from the right guaranteed therein. According to the Court, the length of instruction must objectively and subjectively indicate a sufficient link to the minority language. The more time a child spends in a minority language education program, the easier it is to conclude that a stronger link exists to that language than to the majority language.
- Stage of education at which the choice of language of instruction is made
On the one hand, the language of instruction received at the start of a child’s educational experience may indicate an intention to choose that language for the rest of his or her schooling. On the other hand, the choice of language of instruction made at the time of entry into secondary school may be a sign of a clearer commitment to the minority language.
- Programs available where the child is or was living
The lack of programs of instruction in the minority language in the area where the child did his or her schooling must be taken into account. Where minority language education was not available, instruction in the majority language is not conclusive. Moreover, it is conceivable that, in provinces other than Quebec, a child could have been sent to a majority language school by assimilated parents who then, in the later stages of the child’s educational experience, changed their minds and registered the child in a minority language school so that he or she could reintegrate into the minority language community.
- Existence of learning disabilities or other difficulties
Children may have learning difficulties in the majority language, such that they would be penalized if they had to continue studies in that language.
The Court noted that the relevance of each factor varies with the facts of each case, the circumstances of the particular child and his or her school career. The factors listed above are thus a guide and not an exhaustive list.
Essentially, the “major part” requirement must be interpreted as synonymous with the “significant part” of instruction and must be open to flexible interpretation. The evaluation of what constitutes a significant part is both subjective and objective. It is subjective in the sense that it is necessary to look at the child’s situation as a whole. It is also objective because it requires an assessment of the child’s personal circumstances and educational experience, to ensure that his or her admission to minority language instruction is consistent with the general objectives of subsection 23(2).25
Finally, the Court indicated that as a general rule instruction in immersion programs cannot give rise to a right to instruction in minority language schools.26 In the Court’s opinion, education in immersion programs amounts to education in the majority language. The Court stated that it would be contrary to the purpose of section 23 to equate immersion programs with minority language education, given the essential role played by culture in minority language instruction.27
The Court did not rule on the question as to whether instruction in a private school could give rise to a right under subsection 23(2) of the Charter, since the constitutionality of Bill 10428 was not raised. This question is currently beforethe Quebec Court of Appeal.29
To summarize, the Supreme Court held that subsection 73(2) of the CFL is not inconsistent with section 23 of the Charter. It therefore did not have to rule on the question of whether section 1 of the Charter could be used to justify a departure from section 23.30 In view of the educational experience ofthe children involved in this appeal, the Court concluded that they were eligible for minority language education.