December 1, 2009

Supreme Court Delcares Bill 104 Unconstitutional... But by Ian M. Solloway

In a unanimous 7-0 decision handed down on October 22, 2009, the Supreme Court of Canada struck down Bill 104 adopted by the Quebec government in 2002 to close a loophole in Quebec’s Charter of the French Language that had enabled some students, who were not otherwise eligible, to gain access to English school.

The Charter of the French Language enshrines the principle that French is the official language of instruction in elementary and secondary schools in Quebec. Section 73 (2) of the Charter however provides that “a child whose father or mother is a Canadian citizen and who has received or is receiving elementary or secondary instruction in English in Canada, and the brothers and sisters of that child” may receive instruction in English in Quebec “provided that the instruction constitutes the major part of the elementary or secondary education received by the child in Canada”.

English non-subsidized private schools are not subject to the Charter of the French language insofar as eligibility of students for English language instruction in Quebec are concerned. Prior to 2002, allophone and francophone parents were therefore able to circumvent the obligatory French school provisions for their children by sending their children to a non-subsidized English private school (the so-called “bridging schools”) for one year. These parents were thereby able to invoke S. 73 (2) (“a major part”) and obtain a certificate of eligibility for their child allowing that child to continue his education in English in an English language public or subsidized private school in Quebec.In 2002, the Quebec government amended S. 73 (2) of the language law to close this loophole and prevent parents from invoking time spent in a “bridging school” for the purpose of quantifying the “major part” of their child’s primary or secondary education.

Bill 104 established the same exclusionary rule with respect to English language instruction received pursuant to a special authorization granted by the Quebec Minister of Education in cases involving a serious learning disability, temporary residence in Quebec or a serious family or humanitarian situation. Time spent in an English school in such cases would have to be disregarded for the purpose of qualifying the child’s siblings for instruction in the publically funded English language school system.

In the Nguyen case, a number of parents who were Canadian citizens had enrolled their children in a non-subsidized English private school (“bridging schools”) for very short periods of time. The parents then requested that their children be declared eligible for instruction in English in the English public or subsidized English private school system. The Quebec Minister of Education denied their request based on the Bill 104 amendments.

In the Bindra case, Mr. Bindra had previously obtained special authorization from the Minister of Education to allow one of his two children to attend English school. He then applied for a certificate of eligibility on behalf of the second child based on the authorized English language instruction being received by his first child. His request was similarly denied by the Minister of Education, pursuant to the Bill 104 amendments. The decisions of the Minister were challenged by the parents on constitutional grounds. After seven years of litigation and judgments rendered by the Administrative Tribunal of Quebec, the Quebec Superior Court and the Quebec Court of Appeal, the Nguyen and Bindra cases reached the Supreme Court of Canada.

In its unanimous ruling, Mr. Justice LeBel, writing for the Supreme Court, upheld the constitutional challenge of the parents and declared Bill 104 unconstitutional as drafted, in that it violated S. 23 (2) of the Canadian Charter of Rights and Freedoms. Mr. Justice LeBel recognized that while the so-called “bridging schools” have been used by some parents to bypass the obligatory provisions of Quebec’s language law restricting access to public English education, the response of the Quebec government in enacting Bill 104 was “excessive in relation to the seriousness of the identified problem” and that “the absolute prohibition on considering an educational pathway (of the student) in an “unsubsidized private school” was overly drastic.” Essentially, what the Court said was that the Quebec government’s response to the problem posed by the so-called “bridging schools” was disproportionate to the problem itself. Although the Court acknowledged, as it has done in past decisions, that Quebec could validly limit freedom of choice in the language of instruction in the province, translating the primacy of the French language into a complete ban of the use of unsubsidized private English schools as a way of obtaining access into English public schools or subsidized English private schools, went too far and surpassed the acceptable “minimal impairment of constitutional rights.”

The Supreme Court reiterated that in its prior 2005 ruling in the Solski case, it had decided that the “major part” of a child’s education is no longer a “quantitative measurement”, but rather a “global qualitative assessment” to be viewed on an individual case by case basis. The Quebec Minister of Education could not therefore simply disregard English education received by a child in a non-subsidized English private school in its analysis. The Court did allow, however, by way of an obiter, that if the intent in attending the “bridging school” is simply to circumvent the law and to create an “artificial educational pathway” to allow access to a public English school, the “qualitative analysis test” in Solski may not be met. The door has therefore been left open for the Quebec Minister of Education to continue to reject requests for eligibility even though time spent in a “bridging school” cannot now be legally disregarded.

Finally, to the chagrin of many, because of the difficulties that its declaration of invalidity of Bill 104 might entail, the Supreme Court suspended the effects of its judgments for one year to enable the Quebec National Assembly to enact remedial legislation.

The victory of the claimants before the Supreme Court therefore would appear to be a partial one. Only one child, Satbir Bindra, was declared by the Court to be eligible immediately for English language instruction. However, the Supreme Court did not make a similar order of immediate eligibility with respect to the children of the Nguyen claimants, whose files were rather ordered by the Court to be returned to the Quebec Minister of Education to be reviewed again in light of its judgment and the principles established in Solski.

Therefore, the ball has now been squarely placed back in the hands of the Quebec government to come up with a legislative solution which would maintain the relative linguistic peace which has existed in the province for most of the last decade. The Quebec government is once again being challenged to recognize its obligation to protect the primacy of the French language in Quebec while, at the same time, to respect the principles enunciated by the Supreme Court.

We will know, in short order, whether the government has the political will to meet this challenge.