1. Minority Language Education Rights
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1.2 Right to minority language instruction and right to equality
Gosselin (Tutor of) v. Quebec (Attorney General)
In this case,31 heard with Solski,32 the Supreme Court had to assess the constitutional right to minority language instruction in light of the right to equality.
Most of the appellants were parents born in Quebec who had received their education in French in that province. These families claimed the right to English-language education for their children, who under section 73 of the CFL were not eligible to attend English schools. The families initiated proceedings in the Quebec Superior Court to obtain the right to have their children educated in English.
They argued in court that the provisions of the CFL on the language of education were discriminatory because they did not give French-speaking parents the choice of enrolling their children in English schools, whereas English-speaking parents were free to choose their children’s language of education in Quebec public schools. In their view, the CFL made a distinction between, on the one hand, children who met the eligibility requirement provided for by section 73 of the CFL, and on the other, the majority of Francophone children in Quebec, who do not meet the requirement. The appellants were of the view that this distinction infringed on the right to equality guaranteed by sections 10 and 12 of the Quebec Charter of Human Rights and Freedoms and section 15 of the Charter. In their opinion, the principle of equality requires that all children in Quebec have access to English education if they want it. The appeal thus essentially hinged on the relationship between equality rights, on the one hand, and language rights guaranteed to minorities, on the other.
The families’ actions were dismissed by the Superior Court and the Quebec Court of Appeal. The Supreme Court of Canada also dismissed their appeal.
From the outset, the Supreme Court noted that the appellants were members of the Francophone majority in Quebec and were not entitled to the rights guaranteed under section 23 of the Charter. Therefore, their status and situation differed from that of the appellants in Solski. The Court further noted that these parents were seeking to take advantage of the right to equality to alter the categories of rights holders under section 23 of the Charter so as to benefit from a right that only belonged to members of the linguistic minority.
1) Section 73 of the Charter of French Language
The Court concluded that the appellants, by seeking to use the right to equality to benefit from a right guaranteed in Quebec only to the English-language minority, were not taking into account the relationship between section 73 of the CFL and section 23 of the Charter. The Court also dismissed the appellants’ argument that section 73 of the CFL was intended to distinguish entire categories of children and exclude them from eligibility for a public service. It indicated that the purpose of section 73 was 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”33 [emphasis in original].
2) Right to equality and section 23 of the Canadian Charter of Rights and Freedoms
Proceeding with its analysis, the Supreme Court noted that any review of minority language education rights must begin with the guarantees provided for in section 23 of the Charter. It repeated its comments from Mahe34 that “a notion of equality between Canada’s official language groups is obviously present” in section 23, but it was “if anything, an exception [to the right to equality] in that it accords these groups, the English and the French, special status in comparison to all other linguistic groups in Canada.”35 It noted that, in the context of minority language education, substantive equality may require different treatment, if necessary, to provide official language minorities with a level of education equivalent to that of the official language majority. Referring to a conclusion reached in Arsenault-Cameron,36 the Court explained that section 23 of the Charter could be seen not as an exception to the right to equality, but instead as a fulfillment of this right for linguistic minorities.37
The Court pointed out that there is no hierarchy of constitutional provisions, that is, the right to equality does not have priority over the right to minority language education. Thus, the appellants could not use equality guarantees to invalidate other rights expressly conferred by the Constitution.
3) Implementation of the right to minority language education in Quebec
Finally, the Court considered the application of section 23 of the Charter in Quebec. It emphasized the purpose of this provision, which is to protect and promote the minority language community’s vitality and development.
Considering the facts of the case, the Court noted that the appellants were members of the Francophone majority in Quebec, and as such their wish to have their children educated in English did not fall under the purpose of section 23 of the Charter. On the contrary, the Court indicated that the admission of members of the linguistic majority to minority schools could have harmful consequences, especially in Quebec’s particular situation, where the existence of English-language schools should not be a barrier to the desire to protect and enhance French as the majority language in Quebec, though it is still the minority language in Canada as a whole.
In short, the Court dismissed the appellants’ appeal and concluded that minority language education rights were not subordinate to the right to equality.
