PART I - STATEMENT OF FACTS

A. Overview

1. This case raises the issue of the nature and extent of the right of access to minority language instruction guaranteed under s. 23(2) of the Canadian Charter of Rights and Freedoms. Specifically, this case addresses the issues of the proper interpretation of the words “a child who has received or is receiving” in s. 23(2) and the extent to which a provincial statute, the Charter of the French Language, can restrict the rights of persons enjoying the status of right-holder under s. 23(2).

B. The Facts

2. The Appellant sought in the Quebec Court of Appeal and continues to seek in this Court that the judgment of the Honourable Madame Justice Danielle Grenier, J.S.C., rendered on December 14, 2000 in the Solski case, be upheld.

Ref: Judgment of the Superior Court below [Appellant’s Record, Tab B-1]

3. The following recital of the facts includes references to the Solski children and to the Appellant’s own children.

The education of the Solski children

4. The relevant facts are set out in paragraphs 5 to 12 of the Solskis’ re-amended proceedings and in their testimony before the Tribunal administratif du Québec on February 22, 1999.

Ref: Re-Amended Motion for a Declaratory Judgment and Re-Amended Application for a Remedy [Appellant’s Record, Tab C-2];

Testimony of Cezary and Isabella Solski [Appellant’s Record, Tab C-4]

5. Cezary and Isabella Solski were born in Poland and received their primary and secondary instruction in Polish in Poland. Their children, Mateusz and Karol, were born on August 16, 1985 in Poland. The family immigrated to Canada in 1990, became permanent residents on March 28, 1993 and became citizens on May 1, 1997.
6. At the primary level, in terms of months, out of a total of sixty (60) months, the children received twenty-four (24) months of instruction in English under the temporary stay exemption in s. 85 of the Charter of the French Language (“CFL”), one (1) month of so-called illegal instruction (September 1994) after the Solskis became permanent residents and were no longer eligible for the temporary stay exemption, and thirty-four (34) months of instruction in French. For one (1) month (October 1994), the children did not attend any school.
7. In terms of completed years at the primary level, the children completed three (3) Grades, 1, 2 and 3, in an English school and three (3) Grades, 4, 5 and 6 in a French school. At the secondary level, the children completed Grade 7 in English at St. Thomas High School from September 1997 to June 1998 without having a certificate of eligibility. From September 1998 to June 1999, they completed Grade 8 at a French school. From September 1999 to June 2000, they completed Grade 9 at a private unsubsidized English school, Greaves Adventist Academy.
8. The children’s instruction can be summarized as follows:

Primary Secondary

English French English French

Months 24 months 34 months 20 months 10 months

Grades 1, 2, 3 4, 5, 6, 7, 9 8

9. The only serious dispute regarding the facts relates to the characterization of the year in which the children completed Grade 7 at St. Thomas High School. The evidence before the Superior Court was to the effect that the family moved from the South Shore to the West Island in the summer of 1997. Having obtained their citizenship on May 1, 1997, they were under the impression that their children had become eligible. When they enrolled their children at St. Thomas High School, under the jurisdiction of the Baldwin Cartier School Commission, they provided evidence of their citizenship and the instruction received by the children up until that time. The school authorities admitted the children and issued report cards attesting that they had completed Grade 7.
10. It was not until August 1998, when the children started Grade 8 at St. Thomas High School, the first year under the jurisdiction of the new linguistic school board, Lester B. Pearson School Board, that the parents were advised that their children were not eligible. The children were forced to leave the school and attend French school.
11. The Solski/parents were aware that restrictions on access to English schools existed. After obtaining their Canadian citizenship, they thought in good faith that their children had become eligible and the school authorities agreed. In the absence of subterfuge, they were entitled to rely on the advice of the school authorities to the effect that their children were eligible – there is a difference between the situation where parents are aware of restrictions and deliberately seek to avoid these restrictions through subterfuge and the situation where parents honestly communicate their circumstances to the school authorities and are advised that their children are eligible.

The education of the Appellant’s own children

12. The Appellant is a Canadian citizen and the mother of two (2) school-age children, Shanning and Edwin Edouard, born on February 23, 1992 and November 16, 1994. From 1993 to July 2000, the Appellant and her children resided in Ottawa. Shanning attended Grades 1 and 2 at St. Elizabeth School in Ottawa from September 1998 to June 2000.
13. At the beginning of July 2000, the Appellant and her children moved to Montreal. In early September 2000, she registered her children with the English Montreal School Board and her children began attending St. Dorothy School, Shanning in Grade 3 and Edwin in Grade 1.
14. Upon registration, the Appellant also filed an application for a certificate of eligibility for her children with the English Montreal School Board pursuant to s. 73(2) of the Charter of the French Language (“CFL”) that was forwarded to Diane Robillard, the person designated by the Minister of Education pursuant to s. 75 CFL.
15. By letter dated November 10, 2000, Diane Robillard advised the Appellant of her final decision to refuse to declare Shanning and Edwin eligible for English language instruction on the grounds that, as Shanning’s instruction was received 50% in English and 50% in French, she had not received the major part of her instruction in English in Canada as required by s. 73(2) CFL.
16. After an attempt to obtain injunctive relief from the Superior Court was dismissed on jurisdictional grounds, by judgment dated November 13, 2003, Shanning and Edwin were forced to leave St. Dorothy School immediately. The family returned to Ottawa.
17. Whether the Superior Court had jurisdiction to entertain the Appellant’s proceedings is the subject of another appeal before this Court in Casimir et als v. Attorney General of Quebec et als, SCC #29299.

C. Judicial History

18. In their re-amended proceedings before the Superior Court, the Solskis argued that they were right-holders under s. 23(2) of the Canadian Charter in that 1) they were citizens and 2) they were parents of a child who “has received or is receiving” English instruction in Canada.
19. The Solskis argued that once their status as right-holders had been determined, the other relief followed as a logical consequence, specifically, a declaration that they had the right to have their children receive public instruction in English in Quebec and a declaration that the major part requirement in s. 73(2) CFL was invalid because it purported to exclude the Solski parents from the class of right-holders under s. 23(2).
20. The Solski parents further argued that s. 1 of the Canadian Charter could not be invoked to modify the special classification of right-holders set out in s. 23(2).

Superior Court: The major part requirement is inconsistent with s. 23(2)

21. In her judgment rendered on December 14, 2000, the trial judge agreed with the Solskis’ submissions and declared as follows:

DÉCLARE que le par. 73, 2 de la Charte de la langue française est incompatible avec l'article 23 de la Charte canadienne dans la mesure où le critère de « la majeure partie de l'enseignement primaire ou secondaire reçu au Canada » prévu au par. 73, 2 modifie la catégorie de personnes visées par le par. 23(2) de la Charte et déclare ledit par. 73, 2 inopérant dans la mesure de cette incompatibilité;

DÉCLARE que les requérants, Mateusz et Karol Solski, ont le droit, en vertu du par. 23(2) de la Charte canadienne des droits et libertés, de recevoir leur instruction en anglais au Québec nonobstant les dispositions de la Charte de la langue française;

DÉCLARE le présent jugement exécutoire nonobstant appel;

Ref: Judgment of the Superior Court below [Appellant’s Record, Tab B-1]

22. The trial judge found that the attendance of the Solski children at a private unsubsidized school in Grade 9 (Secondary 3) at the time of the trial in May 2000 was sufficient to qualify the Solski parents as right-holders under s. 23(2). She interpreted the reference to “reçoit” as including two possibilities: the moment at which proceedings were instituted and the moment of the hearing. At the time of the application for certificates of eligibility in August 1998, the children had finished Grade 7 at St. Thomas High School and had just been refused access to Grade 8 in that school. At the time the declaratory proceedings were instituted in December 1998, the children were receiving public instruction in French in Grade 8.
23. At the time of the trial in May 2000, the children were receiving private instruction in English in Grade 9 and had received nine (9) months of instruction having started in September 1999. They completed Grade 9 at Greaves Adventist Academy in June 2000. By the time the trial judgment was rendered in December 2000, they were receiving public instruction in French in Grade 10.

Interlocutory proceedings in the Court of Appeal

24. By judgment rendered on January 24, 2001, the Honourable Michel Robert, J.C.A., granted the Respondent Attorney General’s request to suspend the provisional execution ordered by the trial judge.

Ref: Judgment of Michel Robert, J.C.A. [Appellant’s Record, Tab B-2]

25. By letter of instruction dated January 25, 2001, Cezary and Isabella Solski instructed their attorney to file a Motion to cease to represent them and to declare that they abandoned all contestation of the appeal on the grounds that it was doubtful that their children would be able to benefit from a favourable judgment of the Court of Appeal before completing high school.

Ref: Motion to cease to represent and letter of instruction [Appellant’s Record, Tab C-4]

26. By Intervention dated January 25, 2001, the Appellant sought permission to intervene on the grounds that, given the abandonment of all contestation of the appeal by Cezary and Isabella Solski, unless the Appellant’s Intervention was received, there would be no party before the Court to uphold the declaration of invalidity of s. 73(2) CFL in the trial judgment.

Ref: Intervention [Appellant’s Record, Tab C-5]

27. By judgments of the Honourable Morris J. Fish, J.C.A., rendered on February 19, 2001, the Motion of the attorney of Cezary and Isabella Solski to cease to represent was granted and the Intervention of the Appellant was received.

Ref: Judgments of Morris J. Fish, J.C.A. [Appellant’s Record, Tabs C-3 & C-4]

28. Cezary and Isabella Solski did not participate in the hearing before the Court of Appeal in October 2001. At that time of the hearing and at the time of the judgment rendered on May 15, 2002, the children were receiving public instruction in French in Grade 11. They have since graduated high school.

Quebec Court of Appeal: The major part requirement is consistent

29. In his Inscription en appel, dated January 10, 2001, Respondent Attorney General argued that:
1) The Superior Court ought to have declined to entertain the remedies requested in the Solskis’ re-amended proceedings in favour of the Tribunal Administratif du Québec, which had exclusive jurisdiction to entertain and grant the requested relief, including relief under the Canadian Charter;
2) The criterion of the major part of the child’s instruction in s. 73(2) CFL was consistent with the words “a child who has received or is receiving” in s. 23(2) of the Canadian Charter having regard to the intent of the framers;
3) As a subsidiary argument, s. 1 of the Canadian Charter could be invoked to modify the special classification of right-holders under s. 23(2);

Ref: Respondent’s Inscription en appel [Appellant’s Record, Tab C-3]

30. In its judgment dated May 15, 2002, the Court of Appeal dismissed submission 1), agreed with 2) and did not address 3).

Ref: Judgment of the Court of Appeal below [Appellant’s Record, Tab B-5]

Appealing to the Supreme Court of Canada

31. On April 24, 2003, the Supreme Court of Canada granted leave to Edwidge Casimir with costs in any event of the cause. On May 26, 2003, Edwidge Casimir filed and served her Notice of Appeal to the Supreme Court of Canada.

PART II - STATEMENT OF QUESTIONS IN ISSUE

32. By order of the Chief Justice dated July 29, 2003, the constitutional questions in this case were stated as follows:

ISSUE I Do ss. 72 and 73(2) of the Charter of the French Language, R.S.Q. c. C-11, and, in particular, the words “provided that that instruction constitutes the major part of the elementary or secondary instruction received by the child in Canada” in s. 73(2), infringe s. 23(2) of the Canadian Charter of Rights and Freedoms?

ISSUE II If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

Ref: Order of the Chief Justice, Appendix

PART III - STATEMENT OF ARGUMENT

ISSUE I Do ss. 72 and 73(2) of the Charter of the French Language, R.S.Q. c. C-11, and, in particular, the words “provided that that instruction constitutes the major part of the elementary or secondary instruction received by the child in Canada” in s. 73(2), infringe s. 23(2) of the Canadian Charter of Rights and Freedoms?

A. Four (4) independent grounds of entitlement

33. The Appellant submits that the facts relating to the Solski children disclose three (3) independent grounds of entitlement to the status of right-holder under s. 23(2):
1) The three (3) years of primary instruction received in an English public school in Quebec pursuant to a temporary authorization under s. 85 CFL (completed Grades 1, 2 and 3) was sufficient to meet the criterion of a child who “has received” primary instruction.
2) The one (1) year of secondary instruction received in an English private school in Quebec (completed Grade 9) was sufficient to meet the criterion of a child who “has received” secondary instruction in English.
3) The attendance at an English private school in Quebec at the time of the hearing before the Superior Court in May 2000 was sufficient to meet the criterion of a child who “is receiving” secondary instruction in English.
34. It is respectfully submitted that once the status of right-holder has been determined, it follows necessarily that the major part requirement in s. 73(2) CFL is invalid to the extent that it purports to exclude the Solski parents from the class of right-holders under s. 23(2) – the first constitutional question should therefore be answered in the affirmative.
35. The position of the Appellant is that the facts relating to her own children disclose a potential fourth ground of entitlement which would entail an affirmative answer to the first constitutional question, but adds that this ground depends on the resolution of a prior issue: the proper qualification of instruction received in an English school, in a bilingual or immersion program.
36. The Appellant submits that instruction received in an English school anywhere in Canada is instruction in English for the purposes of s. 23(2) as it applies to Quebec, regardless of the percentage of instruction received in French as a second language in the context of a bilingual or immersion program.
37. The Appellant submits that the instruction received by the her child, Shanning Edouard, in an English public school in Ontario (completed Grades 1 and 2) was instruction in English for the purposes of the guarantee in s. 23(2), regardless of the fact that 50% of her instruction was received in French as a second language.
38. Although the person designated by the Minister of Education found that Shanning’s instruction in Ontario did not meet the major part requirement in s. 73(2) CFL on the grounds that 50% was received in English and 50% in French, once Shanning’s instruction is properly qualified as English instruction, the only conclusion possible is that she received the totality of her instruction in English, which is more than sufficient to meet the major part requirement.
39. In the event that Shanning’s instruction is qualified as being 50% in English and 50% in French, then the major part requirement did operate to exclude her and it would become necessary to address the following fourth ground of entitlement in answer to the first constitutional question:

4) The two (2) years of primary instruction received by Shanning in an English public school in Ontario (completed Grades 1 and 2) was sufficient to meet the criterion of a child who “has received” primary instruction in English in the sense of s. 23(2) of the Canadian Charter.

B. The clear text and necessary implications of s. 23(2)

40. In Quebec Protestant School Boards, this Court qualified s. 23 rights as follows:

. . the limits which the regime imposes on rights involving the language of instruction, so far as they are inconsistent with s. 23 of the Charter cannot possibly have been regarded by the framers of the Constitution as coming within “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

The rights stated in s. 23 of the Charter are guaranteed to very specific classes of persons. This specific classification lies at the very heart of the provision, since it is the means chosen by the framers to identify those entitled to the rights they intended to guarantee. In our opinion, a legislature cannot by an ordinary statute validly set aside the means so chosen by the framers and affect this classification. Still less can it remake the classification and redefine the classes.

. . s. 73 of Bill 101 constitutes exactly the kind of redefinition of the classes of persons protected by s. 23 of the Charter which is prohibited and invalid if undertaken by any means other than a constitutional amendment.(Emphasis added)

Ref: A.G. (Que.) v. Quebec Protestant School Boards [1984] 2 S.C.R. 66, pp. 84, 86, 87, [Appellant’s Book of Authorities, Tab B]

41. The Court of Appeal below held that there was no inconsistency and that the major part requirement in s. 73(2) CFL was merely “plus précis” than s. 23(2):

[62] La Charte canadienne ne précise pas l'étendue de l'instruction reçue pour avoir accès à l'enseignement dans l'une ou l'autre langue. Le législateur québécois, pour sa part, a mis son l'obligation constitutionnelle relative à l'éducation en anglais en œuvre et a été plus précis dans la formulation de la loi. Comme le législateur québécois a juridiction exclusive en matière d'éducation, il n'y avait pas obligation à ce que les deux législations soient identiques à tout point de vue. Ce que le législateur a fait pour mettre en oeuvre son obligation constitutionnelle fut de corriger en 1993 son article 73 puisque, quant au reste, sa loi était valide (Quebec Protestant School Boards). Cette mise en œuvre comporte, outre les articles 72 et 73 C.L.F., plusieurs autres éléments dont un mécanisme quasi judiciaire d'application. (Emphasis added)

Ref: Judgment of the Court of Appeal, para. 62 [Appellant’s Record, Tab B-5]

42. The following Venn diagrams illustrate the position of the Appellant as accepted by the trial judge and the position of Respondent as accepted by the Court of Appeal:
43. It is obvious that the class of Canadian citizens with a child who has received or is receiving instruction in English in Canada is greater than the class of Canadian citizens with a child who has received the major part of his instruction in English in Canada. It is equally evident that the criterion of the major part in s. 73(2) CFL operates to exclude Canadian citizens from the specific classification of right-holders chosen by the framers under s. 23(2).

s. 23(2)

Criterion of

major part

in s. 73(2) CFL

Position of Appellant and the trial judge

s. 23(2)

&

Criterion of

major part

in s. 73(2) CFL

Position of Respondent and Court of Appeal

C. The context of the adoption of s. 73(2) CFL

44. When the Charter of the French Language was enacted in 1977, it did not contain any provision relating to entitlement based on the instruction of the child. The sole criterion of entitlement was the language of instruction in Quebec of the parents. The avowed intention of the Quebec legislator was to direct the children of immigrants and French-speaking citizens residing in Quebec to French schools.

Ref: Extracts of the White Paper, Quebec’s Policy on the French Language, March 1977, at pp. 50-52 [Appellant’s Record, Tab E-63]

45. With the adoption of s. 23(2) in 1982, a separate regime of entitlement based on the criterion of the language of instruction of the child was introduced. Section 73(2) CFL was enacted in 1993 – it included the requirement that instruction in English constitute the major part of the child’s instruction in English in Canada and it added the criterion of Canadian citizenship.

Court of Appeal Ignores Evidence

46. Before the trial judge, there was documentary and testimonial evidence of the manner in which s. 23(2) was interpreted and applied by administrative authorities between 1982 and 1993 – this was ignored by the Court of Appeal.
47. Between 1982 and 1993, the authorities interpreted s. 23(2) as generating three (3) different entitlements regarding the child’s instruction in English: 1) the major part of the child’s instruction, 2) the last completed year and 3) the year in which the application was made, “l’année en cours.”
48. The trial judge accurately described this “flottement décisionnel” at paragraphs 139 to 144 of her judgment.

Ref: Judgment of the Superior Court below, paras. 139-144 [Appellant’s Record, Tab B-1];

Testimony of Michel Mailhot at pp. 172-202 [Appellant’s Record, Tab D-1];

Instruction du Ministre de l’Éducation, April 29, 1991, [Appellant’s Record, Tab E-6];

Instruction du Ministre de l’Éducation, June 12, 1991, [Appellant’s Record, Tab E-7]

49. The intention and effect of the Quebec legislator in including the major part requirement in s. 73(2) CFL in 1993 was clearly to prevent entitlements 2) and 3) from continuing to have any application and to exclude parents in the Solskis’ situation from membership in the class of right-holders under s. 23(2).

D. The 1st ground of entitlement – 3 years of English public school in Quebec

50. The first ground of entitlement is based on three (3) completed years of instruction in an English public school in Quebec. The judgment of the Ontario Court of Appeal in Abbey established two (2) principles: (1) s. 23(1) and s. 23(2) set out separate entitlements which are conceptually related but independent of each other and 2) s. 23(2) sets out objective criteria which once satisfied confer entitlement, such that s. 23(2) does not require any element of belonging to the linguistic minority. The Court stated that:

. . These educational rights are also available to all the children of a Canadian citizen if any of the citizen’s children has received primary or secondary school instruction in English or French in Canada. Not only do children who have received – or are receiving – their education in the language of the linguistic minority have the right to continue receiving their primary and secondary school education in that language, their siblings enjoy the same continuous right.

For purposes of s. 23(2), it does not matter whether this prior language instruction originated in another province, another part of a province, or through the kind of admissions committee contemplated by the Education Act. However it originated, it is the fact of it having occurred which attracts the protection of s. 23(2).

The independence of the various rights in s. 23 was supported by the judgment of this Court in Re Minority Language Education Rights (1984) 47 O.R. (2d) 1, where it said at p. 29:

. . .

“It can be seen that in the Charter there is no requirement that children, in order to be entitled to receive instruction in the French language in Ontario, must themselves be French speaking.”

. . .

Even though the overriding purpose of s. 23 is the protection of the language and culture of the linguistic minority through education, this does not preclude interpreting s. 23(2) according to its plain meaning even if it means that rights accrue to persons who are not members of the linguistic minority. The more fluency there is in Canada’s official languages, the more opportunity there is for minority language groups to flourish in the community.

Chief Justice Dickson acknowledged in Mahé that not all s. 23 right-holders would be members of the minority language group. Specifically, he noted at p. 379:

“ . . the persons who will exercise the measure of management and control described above are “s. 23 parents” or persons of such parents designated as their representatives. I appreciate that because of the wording of s. 23 these parents may not be culturally part of the minority language group.” (Emphasis added)

Ref: Abbey v. Essex Board of Education (1999) 42 O.R. (3d) 481, at pp. 488-489 [Appellant’s Book of Authorities, Tab A]

Court of Appeal Below-Failed Attempts to Distinguish Abbey

51. At paragraphs 69 and 70 of its judgment, the Court of Appeal attempted to distinguish the Abbey case from the present case by observing that there is no Quebec equivalent to the admissions committee under the Ontario statute. Not only is this observation not true in that the review committee created pursuant to s. 83 CFL has discretion to admit children that are not otherwise eligible, but this observation is wholly beside the point. As the Ontario Court of Appeal noted in Abbey, the relevant consideration is the fact of the instruction having been received.

Ref: Judgment of the Court of Appeal, paras. 69-70 [Appellant’s Record, Tab B-5]

No Illegality Involved

52. The Court of Appeal below referred to the fact that, at the time of the application for certificates of eligibility in August 1998, the children were not receiving instruction in the minority language as they completed Grade 7 in an English school without having eligibility certificates and therefore, the year was “illegal.” The Court concluded:

L’effet de la décision dans Abbey n’est surement pas de reconnaître les droits prévus à l’article 23(2) dans une situation d’illégalité.

Ref: Judgment of the Court of Appeal, paras. 70, 72 [Appellant’s Record, Tab B-5]

53. On the question of the supposed illegality of the Solski children’s Grade 7 year, it is submitted that if three completed years of primary instruction is sufficient to confer entitlement, then it follows that the Solski parents became right-holders as soon as they obtained their citizenship on May 1, 1997 and their children’s attendance in their Grade 7 year was legal under s. 23(2) of the Canadian Charter. An ordinary provincial statute cannot render illegal instruction received by the child of a s. 23(2) right-holder.
54. It follows from this conclusion that the exclusion of the Solski children from St. Thomas High School at the beginning of their Grade 8 year was an infringement of the rights of the Solski parents as right-holders under s. 23(2).
55. The Quebec Court of Appeal’s attempt (in this case), to distinguish the Abbey case completely ignores the fact that the Solski children received instruction in English in Grade 9 from September 1999 to June 2000 at an English private school and that said instruction was lawful. Indeed, the Court of Appeal assumed throughout its analysis that private instruction gave rise to entitlement under s. 23(2), the second ground of entitlement as formulated by the Appellant herein.

E. The 2nd ground of entitlement – 1 year of English private school in Quebec

56. On June 22, 2002, the National Assembly adopted Bill 104, an Act to Amend the Charter of the French Language, S.Q., 2002, c. 28 (“Bill 104”), which came into force on October 1, 2002. Section 3 of Bill 104 purports to exclude private instruction, and public instruction received pursuant to a temporary authorization and other exemptions, from consideration in the determination of eligibility under the Charter of the French Language.

Ref: An Act to amend the Charter of the French Language, S.Q., 2002, c. 28, s. 3

57. The issue of whether the exclusion of private instruction in Bill 104 is an infringement of rights guaranteed by s. 23(2) of the Canadian Charter is currently under advisement before the Tribunal Administratif du Québec in Nguyen et als v. Minister of Education et al, #SAS-M-079528-0210.
58. If this Court agrees with the Appellant’s second ground of entitlement, that the completed Grade 9 year in a private school was sufficient, then the exclusion of private instruction in Bill 104 is invalid by necessary implication. (The same is true as regards the first ground of entitlement and the exclusion of instruction received pursuant to a temporary authorization.)

Administrative Authorities Agree: One year of Private English School Suffices to Meet Criterion

59. From the adoption of s. 73(2) CFL in 1993 until the adoption and coming into force of s. 3 of Bill 104 in 2002, the administrative authorities acknowledged that the criterion of the major part of the child’s instruction was satisfied after one (1) year of private English school, provided that the year in question was Primary I, Grade 1, or Secondary I, Grade 7. One (1) year out of one (1) year is the totality, not just the major part, of the child’s primary or secondary instruction, as the case may be.
60. During this whole period, the administrative authorities did not require that children demonstrate some attachment to the English-speaking minority to be declared eligible under s. 73(2) CFL. Meeting the objective criteria of citizenship and one (1) year of private instruction in English was sufficient.
61. In some circumstances, even less than one (1) year was held to be sufficient. On numerous occasions, the Tribunal Administratif du Québec held that the criterion of the major part was satisfied where a child started to receive instruction in English in a private school after the start of the school year and as a result received less than a complete year of instruction.

Ref: Judith Bolduc v. Minister of Education, #SAS-M-063250-0012;

Simon Abergel v. Minister of Education, #SAS-M-060556-0007;

Ikechukwu Okwuobi v. Minister of Education, #SAS-M-069994-0109;

Consuelo Zorrilla v. Minister of Education, #SAS-M-070312-0109

[Appellant’s Book of Authorities, Tabs T-1 to T-6]

62. In Minister of Education and Attorney General of Quebec v. Judith Bolduc, the Honourable Yves Mayrand of the Superior Court dismissed a motion in judicial review of a decision of the Tribunal Administratif du Québec that declared a child eligible after six (6) months of private instruction in English.

Ref: Minister of Education and Attorney General of Quebec v. Judith Bolduc, June 28, 2002, S.C.M.#500-05-070479-025 [Appellant’s Book of Authorities, Tab I]

63. In Colin c. Commission d'appel sur la langue d'enseignement, the Honourable Nicole Duval-Hesler of the Superior Court decided that the major part requirement in s. 73(2) CFL did not have retroactive effect following its adoption in 1993 and that private instruction gave rise to entitlement under s. 23(2), regardless of the fact that the children were not members of the English minority in terms of their ethnic/ linguistic heritage:

Le tribunal rappelle en premier lieu que, dans cette province et dans le reste du Canada, tout parent peut faire instruire ses enfants dans une institution purement privé.

. . . [L]es inscriptions de Jessica auprès de The Study et de Paul auprès de Lower Canada College se sont faites dans la plus grande légitimité, ce qui les intimes ne contestent pas du reste. . . .

Les droits conférés par l’article 23 de la charte constitutionnelle et repris par l’article 73 paragraphe 2 de la charte linguistique sont garantis aux personnes, c’est à dire aux individus. Dans leur sagesse, les legislateurs canadien et québécois ont decidé de ne pas exiger que les individus qui peuvent prétendre a des droits linguistiques aient pour en jouir a faire la preuve de leur appartenance a une minorité linguistique. Jessica Colin-Durand et Paul Trutschmann sont admissibles a ces doits a la seule condition de répondre aux critères pertinents, soit ceux que la loi prévoit, et a nul autre.

Ref: Colin c. Commission d'appel sur la langue d'enseignement, [1995] R.J.Q. 1478, at pp. 1485, 1490 [Appellant’s Book of Authorities, Tab F]

F. The 3rd ground of entitlement – receiving private instruction in English in Quebec

64. As regards the third ground of entitlement, the only ground addressed by the courts below, the Appellant submits that the finding of the trial judge to the effect that “reçoit” includes receiving instruction in the current year, “l’année en cours”, is unassailable and should be upheld. “Is” means “is”. The attendance of the Solski children at an English private school at the time of the hearing before the Superior Court in May 2000 was sufficient to meet the criterion of a child who “is receiving” secondary instruction in English.
65. In the case of all three (3) grounds of entitlement, the requirement of the major part of the child’s instruction in s. 73(2) CFL purports to modify the specific class of persons defined in s. 23 of the Canadian Charter, something that is prohibited and invalid if undertaken by any means other than a constitutional amendment.

G. The 4th ground of entitlement – 2 years of public instruction in English in Ontario

66. As regards the fourth entitlement, the Appellant submits that the two (2) years of primary instruction received by Shanning in an English public school in Ontario (completed Grades 1 and 2) was sufficient.
67. During the period from the adoption of s. 73(2) CFL in 1993 and the adoption and coming into force of Bill 104 in 2002, the persons designated by the Minister of Education refused applications for certificates of eligibility on the grounds that instruction received in French as a second language in bilingual or immersion programs in English schools, inside and outside Quebec, should be considered in the determination of whether the requirement of the major part of the child’s instruction had been satisfied.
68. The review committee reversed these refusals on the grounds that instruction in an English school was instruction in English for the purposes of determining access to English schools in Quebec.

Ref: Martine Dion v. Minister of Education, November 26, 2001, #62-0263;

Gregor Macgregor v. Minister of Education, April 22, 2002, #63-0286;

Oleg Grudin v. Minister of Education, September 23, 2002, #63-0310;

Abdelmajid Badri v. Minister of Education, September 23, 2002, #63-0322

[Appellant’s Book of Authorities, Tabs U-1 to U-4]

69. The review committee referred to s. 210 of the Education Act which reads as follows:

210. A French language school board shall provide educational services in French; an English language school board shall provide educational services in English.

Ref: Education Act, R.S.Q. c. I-13.3

70. It is important to note that the review committee rendered its decisions in Grudin and Badri after the judgment of the Superior Court in Badri v. English Montreal School Board & Minister of Education, and the judgment of the Honourable Louise Mailhot, J.C.A., refusing leave to appeal.

Ref: Badri v. English Montreal School Board & Minister of Education Judgment of the Superior Court in Badri, August 28, 2002, #500-05-073826-024 [Appellant’s Book of Authorities, Tab D];

Judgment of Mailhot, J.C.A., in Badri, Sept. 29, 2002

#500-09-012667-028 2002 [Appellant’s Book of Authorities, Tab E]

71. The Minister of Education did not appeal any of these decisions to the Tribunal Aministratif du Quebec and instructed the persons designated by him to continue to refuse applications based on exactly the same grounds. Following the abolition of the review committee by Bill 104, the issue is now pending before the Tribunal Administratif du Quebec in Mahdieh Zargarazad v. Minister of Education, #SAS-M-080320-0211 and Michael Parasuik v. Minister of Education, #SAS-Q-094035-0212.

Ref: Memo in Francelle Sainte-Phard, v. Minister of Education, August 31, 2000 [Appellant’s Book of Authorities, Tab U-5]

Guidance from British Columbia – Let’s Be Consistent

72. The British Columbia Supreme Court held that instruction received in French as a second language in an English school does not give rise to the protection of s. 23(2). If such instruction is not French instruction, then it must be, by implication, English instruction.

Ref: Whittington et al v. Board of School Trustees, 44 D.L.R. (4th) 128, September 2, 1987) [Appellant’s Book of Authorities, Tab S]

73. The Appellant respectfully submits that the review committee’s qualification of instruction received in French as a second language in an English school as being instruction in English for the purposes of determining access to English schools in Quebec is correct and should be accepted by this Court.

H. The intent of the framers of s. 23(2) of the Canadian Charter

74. In its attempt to avoid the clear text and necessary implications of s. 23(2) and the necessary inferences to be drawn from the judgment of this Court in Quebec Protestant School Boards, the Court of Appeal below had recourse to the intent of the framers and reasoned as follows.

The framers intended to provide members of Canada’s linguistic minorities with the constitutional right to have their children receive public instruction in their own language;

Ref: Judgment of the Court of Appeal, paras. 50, 57 [Appellant’s Record, Tab B-5]

Section 23 was not intended to provide constitutional protection for the members of the linguistic majority of a province;

Ref: Judgment of the Court of Appeal, paras. 60, 71 [Appellant’s Record, Tab B-5]

The reasoning of the trial judge based on the attendance of the Solski children in an English private school at the time of the trial in May 2000 amounted to the regime of freedom of choice, which had been excluded by the framers;

Ref: Judgment of the Court of Appeal, paras. 51-56 [Appellant’s Record, Tab B-5]

Section 23(2) contemplates continuity of instruction in the context of inter-provincial mobility where a child moves to Quebec after having received instruction in English in another province;

Ref: Judgment of the Court of Appeal, para. 67 [Appellant’s Record, Tab B-5]

The criterion of the major part of the child’s instruction does not infringe the intent of the framers and therefore, is not inconsistent with s. 23(2).

Ref: Judgment of the Court of Appeal, paras. 65, 73 [Appellant’s Record, Tab B-5]

I. Chronology of proposals for minority language education guarantees

75. On June 12, 1978, the Right Honourable Pierre Elliott Trudeau tabled a document entitled “A Time for Action: Toward the Renewal of the Canadian Federation” in the House of Commons which states as follows:

The federal government’s proposal of 1969 respecting the choice of language of education was in the following terms:

“The right of individuals to have English or French as his main language of instruction in publicly supported schools in areas where the language of instruction of his choice is the language of instruction of choice of a sufficient number of persons to justify the provision of the necessary facilities.”

The Victoria Charter did not deal with this matter. However, the Special Joint Committee Report recommended the adoption of the language of the federal government’s proposal. The report recognized that freedom of choice should pertain in that province as well, both because the French language was now adequately secure and because choice of language of education was a basic human right. (Emphasis added)

Ref: A Time for Action: Toward the Renewal of the Canadian Federation, pp. 509-510 [Appellant’s Record, Tab E-72]

76. In the Proposed Resolution respecting the Constitution of Canada, 1980, the proposed text read as follows:

23(1) Citizens of Canada whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside have the right to have their children receive their primary and secondary school instruction in that minority language if they reside in an area of the province in which the number of children of such citizens is sufficient to warrant the provision out of public funds of minority language educational facilities in that area.

(2) Where a citizen of Canada changes residence from one province to another and, prior to the change, ay child of that citizen has been receiving his or her primary or secondary instruction in either English or French, that citizen has the right to have any or all of his children receive their primary or secondary instruction in that same language if the number of children of citizens resident in the area of the province to which the citizen has moved, who have a right recognized by this section, is sufficient to warrant the provision out of public funds of minority language educational facilities in that area. (Emphasis added)

Ref: Proposed Resolution respecting the Constitution of Canada, 1980, pp. 22-23 [Appellant’s Book of Authorities, Tab V]

77. The following appears in the explanatory notes:

Subsection (2) would enable citizens who move from one province to another to have their children educated in English or French if any of their children started their studies in that language.

78. On October 27, 1980, the Honourable Pietro Rizzuto proposed the following amendments to s. 23 in the Senate:

23(1) That any Canadian citizen who received his primary or secondary instruction in Canada, in French or in English, has the right to have his children registered in the school where he was instructed in all of the Canadian provinces, where the number of children of those citizens warrants the provision, out of public funds, educational facilities in that language.”

23(2) That any Canadian citizen, when one of his children is being or has been instructed in English or in French, has the right to have his other children receive their primary or secondary instruction in that minority language either in French or English, everywhere in Canada, where the number of children of those citizens warrants the provision, out of public funds, of minority language educational facilities. (Emphasis added)

Ref: Extracts of the Senate Debates, October 27, 1980, pp. 972-973, [Appellant’s Book of Authorities, Tab W]

79. On January 12, 1981, in response to Senator Rizzuto’s proposal, the Honourable Jean Chretien, then Attorney General of Canada, characterized an amendment that he would be prepared to accept in the following terms:

(a) There will be two alternative qualifications for minority language education rights. Under the first alternative, if a citizen has received his primary instruction in Canada, in one of the official languages, he may send his child to school in that language if it is the minority language of the province in which he lives. Under the second alternative, a citizen whose mother tongue is English or French may educate his child in the language of his mother tongue if it is the minority language of the province in which he lives.

(b) All children of a Canadian citizen will be able to receive their primary and secondary instruction in the minority language in which any one of his children has commenced his education in Canada. (Emphasis added)

Ref: Extracts of the proceedings of the Special Joint Committee, January 12, 1981, p. 36:17 [Appellant’s Book of Authorities, Tab X]

80. On January 29, 1981, the federal government formally proposed the following amendment, which was adopted later the same day:

23(1) Citizens of Canada

a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or

b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,

have the right to have their children receive primary and secondary school instruction in that language in that province.”

23(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language. (Emphasis added)

Ref: Extracts of the proceedings of the Special Joint Committee, January 29, 1981, proposed, pp. 48:95-48:96; adopted, p. 48:120 [Appellant’s Book of Authorities, Tab X]

81. On January 29, 1981, the same day, Lorne Nystrom, on behalf of the opposition, proposed the following amendment, which was defeated later the same day:

23. Citizens of Canada

(1) In a province, who are members of the English speaking or French speaking minority population of a province, have the right to have their children receive their instruction in their minority language at the primary and secondary school levels wherever the number of children of such citizens resident in an area of the province is sufficient to warrant the provision out of public funds of minority language educational facilities in that area.

(2) In each province, the legislature may, consistent with the right guaranteed by subsection (1), enact provisions for defining the term ‘English speaking or French speaking minority population” and for determining whether the number of children of citizens of Canada who have a right guaranteed by subsection (1) resident in an area of the province is sufficient to warrant the provision out of public funds of minority language educational facilities in that area.

Ref: Extracts of the proceedings of the Special Joint Committee, January 29, 1981, proposed, pp. 48:96-48:97; defeated, p. 48:107 [Appellant’s Book of Authorities, Tab X]

82. The following reasonable inferences can be drawn from this chronology regarding the intent of the framers of s. 23(2) of the Canadian Charter:

1) The definition of membership in the minority population was to be constitutionally determined by objective criteria. The provinces would not be able to legislate to alter the constitutional definition (defeat of the Nystrom amendment);

2) Parents did not have to be members of the English language minority in order to benefit from s. 23(2). Once the objective criteria have been met, the parent is a member of the official language minority for the purposes of the guarantee, regardless of their ethnic or linguistic heritage (adoption of the final text incorporating the Rizzuto amendment);
3) The guarantee was meant to apply to instruction received by children within the province of Quebec, not only in the context of inter-provincial mobility (adoption of the final text incorporating the Rizzuto amendment).

J. The relevance of the debates surrounding the adoption of s. 23(2)

83. The issue of the relevance and probative value of the debates before the Special Joint Committee has been addressed by this Court on numerous occasions:

Re B.C. Motor Vehicle Act:

If speeches and declarations by prominent figures are inherently unreliable (per McIntyre J. in Reference re Upper Churchill Water Rights Reversion Act, supra, at p. 319) and “speeches made in the legislature at the time of enactment of the measure are inadmissible as having little evidential weight'' (per Dickson J. in the reference Re: Residential Tenancies Act 1979, supra, at p. 721), the Minutes of the Proceedings of the Special Joint Committee, though admissible, and granted somewhat more weight than speeches should not be given too much weight. The inherent unreliability of such statements and speeches is not altered by the mere fact that they pertain to the Charter rather than a statute.

Moreover, the simple fact remains that the Charter is not the product of a few individual public servants, however distinguished, but of a multiplicity of individuals who played major roles in the negotiating, drafting and adoption of the Charter. How can one say with any confidence that within this enormous multiplicity of actors, without forgetting the role of the provinces, the comments of a few federal civil servants can in any way be determinative?

Ref: Re B.C. Motor Vehicle Act [1985] 2 S.C.R. 486, Dickson, CJ, at p. 508 [Appellant’s Book of Authorities, Tab M]

Reference Re Public Service Employee Relations Act:

Labour relations and the development of the body of law which has grown up around that subject have been for many years one of the major preoccupations of legislators, economic and social writers, and the general public. Strikes are commonplace in Canada and have been for many years. The framers of the Constitution must be presumed to have been aware of these facts. Indeed, questions of collective bargaining and a right to strike were discussed in the Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada (Issue No. 43, pp. 68-79, January 22, 1981). It is apparent from the deliberations of the Committee that the right to strike was understood to be separate and distinct from the right to bargain collectively. And, while a resolution was proposed for the inclusion of a specific right to bargain collectively, no resolution was proposed for the inclusion of the right to strike. This affords strong support for the proposition that the inclusion of a right to strike was not intended.

Ref: Reference Re Public Service Employee Relations Act (Alta.) [1987] 1 S.C.R. 313, pp. 412-413 [Appellant’s Book of Authorities, Tab Q]

R. v. Prosper:

First, it is clear that s. 10(b) of the Charter does not, in express terms, constitutionalize the right to free and immediate legal advice upon detention. The right to retain and instruct counsel and to be informed of that right, or in French the right to “l'assistance d'un avocat et d'être informé de ce droit” is simply not the same thing as a universal right to free, 24-hour preliminary legal advice. Moreover, there is evidence which shows that the framers of the Charter consciously chose not to constitutionalize a right to state-funded counsel under s. 10 of the Charter: Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada (January 27, 1981). Specifically, a proposed amendment, which would have added the following clause to what is now s. 10 of the Charter was considered and rejected. (p. 46:127):

(d) if without sufficient means to pay for counsel and if the interests of justice so require, to be provided with counsel;

In Re B.C. Motor Vehicle Act [1985] 2 S.C.R. 486 I stated for the majority that while these Minutes are admissible as extrinsic aids to the interpretation of Charter provisions, they should not be given “too much weight”. However, it must be borne in mind that the Minutes at issue in the Re B.C. Motor Vehicle Act recorded the views of civil servants on the meaning that should be given to the words "the principles of fundamental justice" found in s. 7 of the Charter, a task for which the courts are far better qualified.

The situation here is quite different: at issue is a specific clause which was proposed, considered and rejected by our elected representatives. In my opinion, it would be imprudent for this Court not to attribute any significance to the fact that this clause was not adopted. In light of the language of s. 10 of the Charter, which on its face does not guarantee any substantive right to legal advice, and the legislative history of s. 10, which reveals that the framers of the Charter decided not to incorporate into s. 10 even a relatively limited substantive right to legal assistance (i.e., for those "without sufficient means" and "if the interests of justice so require"), it would be a very big step for this Court to interpret the Charter in a manner which imposes a positive constitutional obligation on governments. The fact that such an obligation would almost certainly interfere with governments' allocation of limited resources by requiring them to expend public funds on the provision of a service is, I might add, a further consideration which weighs against this interpretation.

Ref: R. v. Prosper [1994] 3 S.C.R. 236, at pp. 266-267 [Appellant’s Book of Authorities, Tab L]

See also:

McKinney v. University of Guelph [1990] 3 S.C.R. 229, at pp. 337, 340-342 [Appellant’s Book of Authorities, Tab H];

Reference Re Prov. Electoral Boundaries (Sask.) [1991] 2 S.C.R. 158, at pp. 185-186 [Appellant’s Book of Authorities, Tab O];

R. v. Finta [1994] 1 S.C.R. 701, at p. 784 [Appellant’s Book of Authorities, Tab K]

84. In Mahé v. Alberta, in the context of s. 23(3), this Court referred to the debates before the Special Joint Committee in the following terms:

The second argument, which was advanced by the respondent, is that s. 23 should be interpreted in light of the legislative debates leading up to its introduction. This Court has stated that such debates may be admitted as evidence, but it has also consistently taken the view that they are of minimal relevance (see Re B.C. Motor Vehicle Act [1985] 2 S.C.R. 486, at pp. 506-7). In this case, the evidence from the legislative debates contributes little to the task of interpreting s. 23 and, accordingly, I place no weight upon it.

Ref: Mahé v. Alberta [1990] 1 S.C.R. 342, at p. 369 [Appellant’s Book of Authorities, Tab G]

No Denying Relevance of Debates in this case

85. While the debates were held by Chief Justice Dickson in Mahé to be of minimal relevance to the interpretation and application of s. 23(3), the Appellant respectfully submits that they are of extreme relevance to the determination of the intent of the framers having regard to s. 23(2).
86. No amendments to the “where numbers warrant clause” in s. 23(3) were proposed during the debates. However, specific amendments to the access provisions in s. 23(2) were proposed that were subsequently either accepted or defeated. This was precisely the consideration that caused Chief Justice Dickson in Prosper to nuance his earlier remarks in Re B.C. Motor Vehicle Act.

Ref R. v. Prosper [1994] 3 S.C.R. 236, at pp. 266-267 [Appellant’s Book of Authorities, Tab L]

K. The political compromise in s. 23 of the Canadian Charter

87. In Quebec Protestant School Boards at pp. 79-84, this Honourable Court described in considerable detail the nature of the political compromise enshrined in s. 23. It stated that:

This set of constitutional provisions was not enacted by the framers in a vacuum. When it was adopted, the framers knew, and clearly had in mind the regimes governing the Anglophone and Francophone linguistic minorities in various provinces in Canada so far as the language of instruction was concerned. They also had in mind the history of these regimes, both earlier ones such as Regulation 17, which for a time limited instruction in French in the separate schools of Ontario--Ottawa Separate Schools Trustees v. Mackell, [1917] A.C. 62--as well as more recent ones such as Bill 101 and the legislation which preceded it in Quebec. Rightly or wrongly,--and it is not for the courts to decide,--the framers of the Constitution manifestly regarded as inadequate some--and perhaps all--of the regimes in force at the time the Charter was enacted, and their intention was to remedy the perceived defects of these regimes by uniform corrective measures, namely those contained in s. 23 of the Charter, which were at the same time given the status of a constitutional guarantee. The framers of the Constitution unquestionably intended by s. 23 to establish a general regime for the language of instruction, not a special regime for Quebec; but in view of the period when the Charter was enacted, and especially in light of the wording of s. 23 of the Charter as compared with that of ss. 72 and 73 of Bill 101, it is apparent that the combined effect of the latter two sections seemed to the framers like an archetype of the regimes needing reform, or which at least had to be affected, and the remedy prescribed for all of Canada by s. 23 of the Charter was in large part a response to these sections. (Emphasis added)

. . . The framers’ objective appears simple, and may be inferred from the concrete method used by them: to adopt a general rule guaranteeing the Francophone and Anglophone minorities in Canada an important part of the rights which the Anglophone minority had enjoyed with respect to the language of instruction before Bill 101 was adopted. (Emphasis added)

Ref: A.G. (Que.) v. Quebec Protestant School Boards [1984] 2 S.C.R. 66,pp. 79-80, 84 [Appellant’s Book of Authorities, Tab B];

Cited by the Court of Appeal at paragraph 51 [Appellant’s Record, Tab B-5]

88. Before Bill 101, with the exception of the two (2) years in which Bill 22 was in force, the regime in Quebec was freedom of choice between existing institutions for citizens and non-citizens. If the framers had wished to provide the same regime across the country as existed in Quebec before Bill 22 and Bill 101, they would have chosen freedom of choice.
89. It is simply not accurate to assert that the intent of the framers was to provide the francophone minority outside Quebec with the same rights as the anglophone minority in Quebec before Bill 101. It is evident that the intent of the framers was to enshrine objective criteria of membership with ostensible symmetrical application across the country, while at the same time affecting the criterion of the language of instruction of the parents in Bill 101 as little as possible and introducing a new regime of entitlement with respect to the language of instruction of the child with a view to promoting instruction in the minority language.
90. While s. 23 was clearly intended to be symmetrical in its application across the country, it has been asymmetrical in its effect due to the fact that the French-speaking minority in the other provinces is in a different situation from the English-speaking minority in Quebec. In the other provinces, the problem was a lack of facilities to meet the demand, whereas in Quebec, the problem was not a lack of facilities, but a lack of eligible students to populate the existing facilities.
91. This differential effect is reflected in the jurisprudence. In the other provinces, the concern over lack of facilities has generated abundant jurisprudence on the proper interpretation and application of s. 23(3), starting with Mahé and culminating in Arsenault-Cameron. In Quebec, there has not been a single judgment on the merits dealing with s. 23(3).

Ref: Mahé v. Alberta [1990] 1 S.C.R. 342 [Appellant’s Book of Authorities, Tab G];

Arsenault-Cameron v. Prince Edward Island [2000] 1 S.C.R. 3 [Appellant’s Book of Authorities, Tab C]

Position of Court of Appeal Below

92. On the issue of the intent of the framers, of its judgment, the Court of Appeal below reasoned that the framers could not have intended that constitutional rights could be acquired after a “short” period of attendance at an English private school in Quebec, as such a situation would amount to freedom of choice, an option excluded by the framers.

Ref: Judgment of the Court of Appeal, at paras. 55-56 [Appellant’s Record, Tab B-5]

93. It is important to note, however, that nowhere in its judgment does the Court of Appeal find that private instruction cannot be invoked to benefit from s. 23(2). The Court simply addressed the issue of duration and found that a short period of time is not sufficient without defining the duration that is sufficient. By necessary implication, it found that private instruction could be invoked.
94. To argue that the framers intended that s. 23(2) exclude any consideration of private instruction, as Bill 104 purports to achieve, is to attribute a considerable degree of ignorance to the framers. The framers were certainly aware, and in any event are deemed to have been aware, of the existence of English private schools in Quebec and the fact that s. 72 CFL exempts private instruction from the application of the Charter of the French Language.
95. The Appellant submits that the evidence relating to the interpretation and application of s. 23(2) by the authorities at the Ministry of Education between 1982 and 1993 and between 1993 and 2002 cannot be ignored – throughout this period, private instruction generated entitlement. While the conduct of a government is not a source of constitutional rights, only the Constitution can confer such rights, this evidence does indicate that allowing parents to invoke private instruction is a reasonable interpretation of s. 23(2) thus confirming the position of the Appellant in the present case.

Section 23(2) of the Charter and the Proper Interpretation of Duration

96. As regards the issue of duration:
Between 1982 and 1993, the period of “flottement décisionnel” described by the trial judge, a complete year (second ground of entitlement) and “l’année en cours” (third ground of entitlement) were both considered sufficient;
Between 1993 and 2002, one complete year was considered sufficient to meet the major part requirement, provided that the year was Grade 1 or Grade 7;
In a series of cases, the Tribunal Administratif du Québec held that the criterion of the major part was satisfied where a child started to receive instruction in English in a private school after the start of the school year and as a result received less than a complete year of instruction;

Ref: Judith Bolduc v. Minister of Education, #SAS-M-063250-0012;

Simon Abergel v. Minister of Education, #SAS-M-060556-0007;

Ikechukwu Okwuobi v. Minister of Education, #SAS-M-069994-0109;

Consuelo Zorrilla v. Minister of Education, #SAS-M-070312-0109

[Appellant’s Book of Authorities, Tabs T-1 to T-6]

In two cases, the review committee held that the criterion of the major part was satisfied after four (4) months of private instruction upon evidence that the child would complete the year.

Ref: Steven C. Potter v. Minister of Education, December 14, 1998;

Cynthia Stewart v. Minister of Education, December 13, 1999

[Appellant’s Record, Tab E-39]

97. The text of s. 23(2) of the Canadian Charter contains no minimum duration. It makes no distinction between public and private instruction. It makes no distinction between instruction received in Quebec and instruction received elsewhere.
98. The Appellant respectfully submits that one (1) completed year (not necessarily a complete year) of primary or secondary instruction in an English school, public or private, anywhere in Canada, is sufficient to confer entitlement under s. 23(2), as it applies to Quebec. This interpretation is the only interpretation that is consistent with (1) the clear text and necessary implications of s. 23(2) of the Canadian Charter, (2) the intent of the framers of the guarantee, (3) the conduct of the administrative authorities charged with the application of the restrictions on access to English schools in Quebec and (4) the principles of interpretation applicable to s. 23.

L. The principles of interpretation applicable to s. 23

99. At paragraph 61 of its judgment, the Court of Appeal refers to the opinion of Mr. Justice Beetz in Mahé and then cites extracts from Société des Acadiens v. Association of Parents. It is essential to note that the restrictive interpretation of language rights espoused in Société des Acadiens was repudiated by this Court in R. v. Beaulac:

25 Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada; see Reference re Public Schools Act (Man.), supra, at p. 850. To the extent that Société des Acadiens du Nouveau-Brunswick, supra, at pp. 579-80, stands for a restrictive interpretation of language rights, it is to be rejected. The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply. (Underlining in original)

Ref: R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 25 [Appellant’s Book of Authorities, Tab J];

Judgment of the Court of Appeal, at para. 61 [Appellant’s Record, Tab B-5];

Mahé v. Alberta [1990] 1 S.C.R. 342, at pp. 363-363 [Appellant’s Book of Authorities, Tab G];

Société des Acadiens v. Association of Parents 1 S.C.R. 549, at p. 578 [Appellant’s Book of Authorities, Tab R]

100. In Arsenault-Cameron v. Prince Edward Island, this principle was reiterated in the context of s. 23:

27 As this Court recently observed in R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 24, the fact that constitutional language rights resulted from a political compromise is not unique to language rights and does not affect their scope. Like other provisions of the Charter, s. 23 has a remedial aspect; see Mahé, supra, at p. 364. It is therefore important to understand the historical and social context of the situation to be redressed, including the reasons why the system of education was not responsive to the actual needs of the official language minority in 1982 and why it may still not be responsive today. It is clearly necessary to take into account the importance of language and culture in the context of instruction as well as the importance of official language minority schools to the development of the official language community when examining the actions of the government in dealing with the request for services in Summerside. As this Court recently explained in Beaulac, at para. 25, "[l]anguage rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada" (emphasis in original). A purposive interpretation of s. 23 rights 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.

Ref: Arsenault-Cameron v. Prince Edward Island [2000] 1 S.C.R. 3, at para. 27 [Appellant’s Book of Authorities, Tab C]

101. On the issue of the principles of interpretation applicable to s. 23(2), the Appellant respectfully submits that the words “has received or is receiving” are clear and unambiguous – in the presence of such a provision, it is the paramount duty of the courts to apply the clear text of s. 23(2). To the extent that the words are susceptible of interpretation, the courts must interpret these words in such a way as to increase access to instruction in the minority language and not restrict it in the manner contemplated by the Court of Appeal below.
102. If s. 23(2) of the Canadian Charter is interpreted purposively, in accordance with its remedial nature and in a manner consistent with the preservation and development of the official English language minority in Canada, the English-speaking minority of Quebec, then it follows that the requirement of the major part of the child’s instruction in s. 73(2) CFL should be found to be inconsistent with s. 23(2) and the first constitutional question should be answered in the affirmative.

ISSUE II If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?”

A. Issue conclusively decided by this Court in Quebec Protestant School Boards

103. This issue of whether the infringement is a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society was conclusively decided by this Court in Quebec Protestant School Boards.
104. The satisfaction of objective criteria, citizenship and language of instruction, of the parent in s. 23(1)(a) or the child in s. 23(2), generates entitlement to the special class of persons foreseen by the framers. An ordinary provincial statute cannot operate to remove that person from the category of right-holder – a modification of the class of persons can only be achieved by a constitutional amendment.
105. The inescapable conclusion to be drawn from this Court’s judgment in Québec Protestant School Board was set out by the trial judge in the following manner:

[163] Dans l'arrêt Quebec Association of Protestant School Boards, la Cour suprême a refusé de légitimer l'art. 73 de la Loi 101 par l'art. 1 de la Charte. Elle a statué que l'article 73 redéfinissait pour le Québec les catégories de personnes qui ont droit à l'instruction dans la langue de la minorité et avait pour effet, en restreignant la portée de l'article 23, de modifier la Charte.

[164] La Cour suprême a souligné que puisque le constituant voulait remédier au régime du chapitre VIII de la Loi 101 en adoptant l'art. 23, « il était inconcevable que les restrictions que ce régime impose aux droits relatifs à la langue d'enseignement puissent, pour autant qu'elles sont incompatibles avec l'art. 23, avoir pu être considérés par le constituant comme se confinant à "des limites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d'une société libre et démocratique”.

[165] La Cour suprême a conclu que ce n'est qu'en suivant la procédure prescrite pour modifier la Constitution qu'une législature pourrait validement restructurer ou modifier les catégories de personnes protégées par l'article 23. (L’article 33 de la Charte ne couvre pas l’art. 23.)

[166] Le par. 23(2) ne prévoit aucun délai préalable. Il ne contient pas d'exigence minimale. En ajoutant la condition de la « majeure partie » à l'art. 73 C.L.F., le législateur québécois modifie la catégorie des personnes visées par le par. 23(2) de la Charte. L'article I ne lui est d'aucun secours.

Ref: Judgment of the Superior Court below, paras. 163-166 [Appellant’s Record, Tab B-1]

B. The vulnerability of the French language

106. The consequence of the finding of this Court in Quebec Protestant School Boards is that evidence relating to the vulnerability of the French language in Canada cannot be invoked to justify a modification of the special class of persons.
107. The criteria in s. 23 of the Canadian Charter generate two (2) broad categories of right-holders: 1) citizens with the right to have their children receive public instruction in English in Quebec and 2) citizens with the right to have their children receive public instruction in French in each of the other provinces.

Minority Language Education Rights Context

108. In the context of minority language education rights, there is only one (1) official language minority in Quebec – the English-speaking minority and it is an official language minority of Canada. It is respectfully submitted that in the event of a conflict between the interests of the French-speaking minority in Canada as a whole, whether those interests are expressed as a function of the vulnerability of the French language or otherwise, and the interests of the English-speaking minority in Quebec, it is the interests of the latter that must be preferred. To hold otherwise is to commit a fundamental category mistake.
109. In the context of minority language education rights, the French-speaking majority in Quebec has no particular status – it is not an official language minority. In Quebec, only the English-speaking minority is entitled to protection commensurate with its status as an official language minority of Canada. To invoke the interests of the French-speaking collectivity in this context is to negate the existence of the English-speaking official language minority in Quebec in flagrant violation of the text and spirit of s. 23 of the Canadian Charter.
110. The only way to avoid the consequences of this analysis is to skew the linguistic duality set out in s. 23 through some recourse to the notion of the particular linguistic dynamics of the province of Quebec.

C. The linguistic dynamics of the province of Quebec

111. In Reference re Public Schools Act (Man.), this Court found that “different interpretative approaches may well have to be taken in different jurisdictions, sensitive to the unique blend of linguistic dynamics that have developed in each province.”

Ref: Reference re Public Schools Act (Man.) [1993] 1 S.C.R. 839, at p. 851, [Appellant’s Book of Authorities, Tab P]

112. One aspect of the linguistic dynamics of the province of Quebec is the decline in enrollment in English schools.

Figure 1

As appears from this graph, prepared by the Conseil de la langue française in 1993, the decline in enrollment was well underway prior to the enactment of Bill 101 in 1977. Between 1971 and the Chambers Report in 1992, there was a 57% decline in enrollment in English schools.

Ref: Extracts from the opinion of the Conseil de la langue française, 1993, Figure 1 [Appellant’s Record. Tab E-68]

113. While the adoption of s. 23 in 1982 had almost no effect on the decline in enrollment in Québec, the effect of s. 23 in the other provinces has been an increase in enrollment in French schools and an increase in the number of French schools across the country. (see the studies of the Office of the Commissioner of Official Languages published in 1991 and in 1998) (extracts)).

Ref: Official Language Minority Education Rights in Canada: From Instruction to Management, OCOL, 1991

School Governance: The Implementation of Section 23 of the Charter, OCOL, 1998

[Appellant’s Record. Tabs 70 and 71]

114. In these circumstances, the Appellant submits that any recourse to the notion of the particular linguistic dynamics of Quebec must be done in accordance with the purpose of the guarantee set out in s. 23(2) of the Canadian Charter: the preservation and development of the official English language minority in Canada, the English-speaking minority in Quebec. When the notion is applied in this way, it favours the interpretation of s. 23(2) proposed by the Appellant herein.

Conclusion

115. The second constitutional question should be answered in the negative.

PART IV - SUBMISSIONS ON COSTS

116. The Appellant requests that costs be awarded to her in any event of the cause.

PART V - ORDER(S) SOUGHT

117. The Appellant, Edwidge Casimir, requests an order:
1) Granting the appeal; and reversing the judgment of the Court of Appeal dated May 15, 2002; and
2) Answering the first constitutional question in the affirmative; and
3) Answering the second constitutional question in the negative;

ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 20th DAY OF OCTOBER, 2003

BRENT D. TYLER

Counsel for the Appellant

PART VI - TABLE OF AUTHORITIES

TAB PARAS.

CASES

A. Abbey v. Essex Board of Education (1999) 42 O.R. (3d) 481 (Ontario C.A.)..........50, 51, 55

B. A.G. (Que.) v. Quebec Protestant School Boards [1984] 2 S.C.R. 66......40, 74, 87, 103, 105

C. Arsenault-Cameron v. Prince Edward Island [2000] 1 S.C.R. 3..................................91, 100

D. Badri v. English Montreal School Board & Minister of Education,

Quebec Superior Court, August 28, 2002, #500-05-073826-024.........................................70

E. Badri v. English Montreal School Board & Minister of Education,

Louise Mailhot, J.C.A., 2002, #500-09-012667-028............................................................70

F. Colin v. Commission d’appel sur la langue d’enseignement [1995] R.J.Q. 1478,

Quebec Superior Court, March 30, 1995..............................................................................63

G. Mahé v. Alberta [1990] 1 S.C.R. 342........................................................................84, 91, 99

H. McKinney v. University of Guelph [1990] 3 S.C.R. 229.......................................................83

I. Minister of Education and Attorney General of Quebec v. Judith Bolduc,

Quebec Superior Court, June 28, 2002, #500-05-070479-025.............................................62

J. R. v. Beaulac [1999] 1 S.C.R. 768........................................................................................99

K. R. v. Finta [1994] 1 S.C.R. 701.............................................................................................83

L. R. v. Prosper [1994] 3 S.C.R. 236...................................................................................83, 86

M. Re B.C. Motor Vehicle Act [1985] 2 S.C.R. 486............................................................83, 86

O. Reference Re Prov. Electoral Boundaries (Sask.) [1991] 2 S.C.R. 158...............................83

P. Reference re Public Schools Act (Man.) [1993] 1 S.C.R. 839.............................................111

Q. Reference Re Public Service Employee Relations Act (Alta.) [1987] 1 S.C.R. 313.............83

R. Société des Acadiens du Nouveau-Brunswick Inc. v. Association

of Parents for Fairness in Education [1986] 1 S.C.R. 549...................................................99

S. Whittington et al v. Board of School Trustees, 44 D.L.R. (4th) 128, (B.C. Sup. Ct).............72

TAB PARAS.

OTHERS

T. Decisions of the Tribunal Administratif du Québec (“TAQ”)

Judith Bolduc v. Minister of Education, #SAS-M-063250-0012:

T. 1) Decision of the TAQ dated March 30, 2001.......................................................61, 96

109 days in English private school, 43 days in French public school

(Arslanian, Bergeron)

T. 2) Decision of the TAQ on administrative review dated January 10, 2002............61, 96

(Wurtele, Blain)

Simon Abergel v. Minister of Education, #SAS-M-060556-0007:

T. 3) Decision of the TAQ dated July 4, 2001.............................................................61, 96

6 months in English private school

(Truesdell, Bergeron)

T. 4) Decision of the TAQ on administrative review dated September 5, 2002..........61, 96

(Arslanian, Blain)

Ikechukwu Okwuobi v. Minister of Education, #SAS-M-069994-0109:

T. 5) Rectified decision of the TAQ dated December 19, 2001..................................61, 96

9 months in English private school

(Wurtele, Blain)

Consuelo Zorrilla v. Minister of Education, #SAS-M-070312-0109:

U. 6) Decision of the TAQ dated March 5, 2003.........................................................61, 96

7 months in English private school, 6 months in French public school

(Arslanian, Blain)

Decisions of the review committee

U. 1) Abdelmajid Badri v. Minister of Education, September 23, 2002, #63-0322...........68

U. 2) Gregor Macgregor v. Minister of Education, April 22, 2002, #63-0286..................68

U. 3) Martine Dion v. Minister of Education, November 26, 2001, #62-0263...................68

U. 4) Oleg Grudin v. Minister of Education, September 23, 2002, #63-0310....................68

TAB Paras.

U. 5) Memo in Francelle Sainte-Phard, v. Minister of Education, August 31, 2000........71

Debates surrounding the adoption of s. 23

V. Proposed Resolution for a Joint Address to Her Majesty the Queen respecting

the Constitution of Canada, October 2, 1980........................................................................76

W. Extracts of the Senate Debates, October 27, 1980................................................................78

X. Extracts of the proceedings of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, January 12, 1981 (with additional pages), January 15, 1981, January 29, 1981............................................79, 80, 81

PART VII – STATUTORY PROVISIONS

1. An Act to Amend the Charter of the French Language, S.Q., 2002, C. 28, s.3

2. Canadian Charter of Rights and Freedoms, ss.1, 23

3. Charter of French Language, c C-11, Chapter VIII

4. Education Act, c I-13.3, s. 210

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