Mobility Rights

Today's Supreme Court of Canada decision in Nguyen v. Quebec (Education, Recreation and Sports), 2009 SCC 47 deals with mobility rights and minimal impairment.  A summary follows:

 

 

 

Under s. 23(2) of the Canadian Charter of Rights and Freedoms, citizens of Canada of whom any child is receiving or has received instruction in the language of the linguistic minority may have all their children receive primary and secondary school instruction in that same language.  The Charter of the French language ("CFL") establishes that, in principle, French is the common official language of instruction in elementary and secondary schools in Quebec, but the first paragraph of s. 73 provides that children who have received or are receiving the major part of their elementary or secondary instruction in English in Canada may receive instruction in English in a public or subsidized private school in Quebec.  In 2002, paras. 2 and 3 were added to s. 73 CFL in response to concerns about the growing phenomenon of "bridging schools" (écoles passerelles) by which parents whose children were not entitled to instruction in the minority language in Quebec were enrolling their children in unsubsidized private schools ("UPSs") for short periods so that they would be eligible to attend publicly funded English schools.  Paragraph 2 of s. 73 provides that periods of attendance at UPSs are to be disregarded when determining whether a child is eligible to receive instruction in the publicly funded English‑language school system.  Paragraph 3 establishes the same rule with respect to instruction received pursuant to a special authorization granted by the province under s. 81, 85 or 85.1 CFL in a case involving a serious learning disability, temporary residence in Quebec, or a serious family or humanitarian situation.

 

 

 

In the N case, the parents enrolled their children for short periods in UPSs offering instruction in English and then requested that their children be declared eligible for instruction in English in public or subsidized private schools.  The Ministère de l'Éducation du Québec denied all the requests on the basis of para. 2 of s. 73 CFL.  In the B case, B's daughter was declared to be eligible for instruction in the minority language public school system pursuant to a special authorization.  B then invoked s. 23(2) of the Canadian Charter in order to obtain a certificate of eligibility for minority‑language instruction in a public or subsidized private school for his son S on the basis of the instruction being received by S's sister, but he was unsuccessful because of para. 3 of s. 73 CFL.  The Administrative Tribunal of Québec and the Superior Court dismissed proceedings in which the parents asked that the 2002 amendments to the CFL be declared unconstitutional.  The Court of Appeal reversed the decisions and held that paras. 2 and 3 of s. 73 CFL infringed the rights guaranteed by s. 23 of the Canadian Charter and that the infringements were not justified under s. 1 of the Charter.

 

 

 

 

 

Held:  The appeals and the cross‑appeals should be dismissed.  Paragraphs 2 and 3 of s. 73 CFL are unconstitutional.

 

 

 

Paragraphs 2 and 3 of s. 73 CFL infringe s. 23(2) of the Canadian Charter.  Whereas in the protection afforded by the Canadian Charter, no distinction is drawn as regards the type of instruction received by the child, as to whether the educational institution is public or private, or regarding the origin of the authorization pursuant to which instruction is provided in a given language, paras. 2 and 3 of s. 73 CFL provide that instruction received in a UPS or pursuant to a special authorization under s. 82, 85 or 85.1 CFL must be disregarded.  Such periods of instruction are, in a manner of speaking, struck from the child's educational pathway as if they had never occurred.  Since Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201, however, it is settled that the requirement of the "major part" of the instruction, provided for in s. 73 CFL, must be interpreted as giving rise to an obligation to conduct a global qualitative assessment of a child's educational pathway.  That assessment is based on factors that include time spent in different programs of study, at what stage of the child's education the choice of language of instruction was made, what programs are or were available, and whether learning disabilities or other difficulties exist.  The inability to assess a child's educational pathway in its entirety in determining the extent of his or her educational language rights has the effect of truncating the child's reality by creating a fictitious educational pathway that cannot serve as a basis for a proper application of the constitutional guarantees. 

 

 

 

 

 

The objectives of the measures adopted by the Quebec legislature are sufficiently important and legitimate to justify the limit on the guaranteed rights, but the means chosen are not proportional to the objectives.  The purpose of the measures is to protect and promote the French language in Quebec.  Although there is a rational causal connection between the objectives and the 2002 amendments to the CFL, the means chosen by the legislature do not constitute a minimal impairment of the constitutional rights guaranteed by s. 23(2) of the Canadian Charter. 

 

 

 

The prohibition under para. 2 of s. 73 CFL against taking a child's pathway in a UPS into account is total and absolute, and it seems excessive in relation to the seriousness of the problem of bridging schools being used to make obtaining access to minority language schools almost automatic.  When schools are established primarily to bring about the transfer of ineligible students to the publicly funded English‑language system, and the instruction they give in fact serves that end, it cannot be said that the resulting educational pathway is genuine.  However, it is necessary to review the situation of each institution, as well as the nature of its clientele and the conduct of individual clients.  A short period of attendance at a minority language school is not indicative of a genuine commitment and cannot on its own be enough for a child's parent to obtain the status of a rights holder under the Canadian Charter.  This approach makes it possible to avert a return to the principle of freedom of choice of the language of instruction in Quebec, involves a more limited impairment of the guaranteed rights and can more readily be reconciled with the concrete contextual approach recommended in Solski.

 

 

 

 

 

As for para. 3 of s. 73 CFL, it is inconsistent with the principle of preserving family unity provided for in s. 23(2) of the Canadian Charter, as it makes it impossible for children of a family to receive instruction in the same school system.  The special authorizations mechanism falls within the authority of the Quebec government, which can grant authorizations that exceed what it is constitutionally obligated to grant, but cannot, after doing so, deny any rights flowing from the authorizations in question that are guaranteed by the Canadian Charter. 

 

 

 

The Court of Appeal's declaration that paras. 2 and 3 of s. 73 CFL are invalid is upheld, but its effects are suspended for one year.  However, the files of the claimants in the N case are returned to the Ministère de l'Éducation, and if necessary to the Administrative Tribunal of Québec, to be reviewed in light of the criteria established in Solski and in this judgment.  As for S, his file is returned to the person designated by the Minister of Education to immediately issue a certificate of eligibility for instruction in English.