Quebec v. Nguyen: access to education in English, institutional completeness and the constitutionality of a sentence of the Charter of the French language, R.S.Q. c. C-11

In Quebec, the most closely watched Supreme Court of Canada case of 2008 may well be that of Ministre de l’Éducation, du Loisir et du Sport, et al. v. Hong Ha Nguyen, et al. (“Quebec v. Nguyen”, Supreme Court of Canada docket number 32229, [2007] S.C.C.A. No. 431). A constitutional question should be stated within days. It is likely that a number of interveners will participate and the appeal should be heard in December 2008.

Quebec v. Nguyen concerns the constitutionality of one aspect of Quebec’s unique system of certificates of eligibility to receive subsidized instruction in English, established by the Charter of the French Language, R.S.Q. c. C-11 (“CFL”).

In 2002, An Act to Amend the Charter of the French Language, S.Q., 2002, c. 28 (“Bill 104”) came into force and added what is now the first sentence of the penultimate paragraph of section 73 of the CFL. This sentence provides that instruction received in a private unsubsidized English school in Quebec is to be disregarded in the determination of eligibility for public instruction in English in that province.

The purpose of Bill 104, according to the Parti Québécois government of the time, was to address the problem of so-called “springboard” schools, a perceived loophole in the CFL that allowed an Allophone or Francophone child to attend a non-subsidized English-language elementary school for a year or less and then receive a certificate of eligibility for English language education in any school. These schools marketed themselves as a way for parents to obtain a certificate of eligibility for subsidized instruction in English by having their children spend little time receiving unsubsidized English education. These “springboard” schools were characterized by large first grade classes and very small second grade classes.

A number of parents, Hong Ha Nguyen et al., alleged that Bill 104 is inconsistent with section 23 of the Canadian Charter of Rights and Freedoms (“Charter”), and that this infringement does not constitute a reasonable limit as can be demonstrably justified in a free and democratic society.

The constitutional challenge was rejected by the Quebec Administrative Tribunal (SAS-M-079528-0210) and by the Superior Court of Quebec ([2004] Q.J. No. 9812).

In a judgment released in August 2007, the Court of Appeal for Quebec declared that the impugned sentence of section 73 of the CFL is unconstitutional (2007 QCCA 1111). The Honourable Justices Hilton and Dalphond each penned separate reasons in support of this result, the Honourable Mr. Justice Giroux dissenting. The Court of Appeal gave immediate effect to the declaration of unconstitutionality but a week later, the rota judge of the Court of Appeal stayed the declaration of unconstitutionality, pending the Supreme Court of Canada’s final determination of the case (2007 QCCA 1136).

To some, this appeal can be characterized as one regarding “access” to English language instruction. Bill 104 has the effect of indiscriminately barring entitlement to English language instruction out of public funds based on an impermissible consideration, namely whether instruction was received in unsubsidized private schools. Under Bill 104, such instruction is to be mathematically “disregarded”. The Supreme Court of Canada has already concluded that a strict mathematical approach is inconsistent with subsection 23(2) of the Charter: Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201. Bill 104 calls on administrators and courts to ignore otherwise legitimate linkages between a family and Quebec’s English-speaking minority communities for the sole reason that these linkages were developed through the unsubsidized private educational system. One is not a less legitimate member of Quebec’s English-speaking minority because one was educated in such a system. Bill 104 represents an arbitrary norm grossly inconsistent with section 23 of the Charter.

Yet this appeal may have significant institutional ramifications. Quebec’s minority English-speaking communities enjoy a relatively well developed institutional network, with reasonably good access to a network of schools, health care and social services, media and cultural bodies. The network of English language private schools in Quebec constitutes an important link in the institutional framework required for the protection and flourishing of the province’s English language minority communities. Bill 104 needlessly jeopardizes the future of Quebec’s English language private schools by cutting off their access to the communities which they serve.

Relatively few students in Quebec were registered in so-called “springboard” schools. In particular, none of the more than twenty members of the Quebec Association of Independent Schools (“QAIS”) had large first grade classes and very small second grade classes. QAIS member schools have never marketed themselves as “springboard” schools. Bill 104 has meant that parents who wanted to receive English instruction at QAIS member schools could no longer expect their children to receive a certificate of eligibility on the basis of the child’s attendance at a QAIS member primary school. Enrollment in QAIS member schools has been declining as a result of Bill 104 and the future of some of these institutions is threatened.

While Bill 104 was being studied by the National Assembly, the QAIS appeared before one of its committees. The QAIS pointed out that Bill 104 was overly broad. The QAIS indicated to the drafters that it was possible for the Quebec Government to prevent Allophone or Francophone children from obtaining a certificate of eligibility after having received a year or less of instruction in a non-subsidized English-language elementary school without threatening Quebec’s network of English-language private schools. Unfortunately, the Quebec Government of the time never seriously considered this compromise solution.

The bottom line is that by severely limiting access to English-language schools – even barring Anglophones from accessing English-language schools – Bill 104 is having a significant impact on the Anglophone minority and on member schools of the QAIS, in some cases threatening their continued existence.

The Attorney General of Quebec has not met its burden of demonstrating that the means chosen, namely a complete and total disregard of any instruction in English received in Quebec in a private unsubsidized educational institution, is reasonable and demonstrably justified. The National Assembly has resorted to a drastic measure in order to stamp out a very minor problem. Bill 104 does not strike any reasonable or justifiable balance between the interests of the majority and those of the province’s English-speaking minority communities.

Note: Ronald F. Caza and Mark C. Power act for the Quebec Association of Independent Schools, an intervener in the Court of Appeal for Quebec.