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.

Unsurprisingly, at trial in 2005, the Nguyens were convicted on charges of marijuana production and possession for the purpose of trafficking, contrary to s. 7(1) and s. 5(2) of the CDSA, respectively. They were then sentenced to an 18-month period of incarceration to be served in the community, as well as forfeiture of the property in which the marijuana was produced and the equipment related to the grow operation.

The trial judge reached his decision by considering the applicable provisions of the CDSA. While defence counsel conceded that the conviction was for a designated substance under s. 2 of the CDSA, and that the offence was committed in relation to that property under s. 16(1), counsel also noted that the forfeiture of this property was not always mandatory. An exception to the forfeiture rule could apply if, pursuant to s. 19.1, the court was satisfied that the impact of such an order would be disproportionate to the nature and gravity of the offence, the circumstances surrounding its commission, and any criminal record.

Addressing the parameters of this possibility, the trial judge first assessed who might be impacted by forfeiture of the property. Though the Nguyens’ eldest daughter did reside in the impugned home at the time of the trial, she did not continue to reside there between the time of the offence and the time of the trial. The trial judge understood this to mean that she did not fall within the scope of s. 19.1(4) of the CDSA, which applies where “the dwelling house was the member’s principle residence at the time the charge was laid and continues to be the member’s principle residence.” Even if the trial judge’s assessment in this regard was questioned, he noted that the eldest daughter also possessed no equity in the house. She had no financial interest at stake with respect to forfeiture, other than the possibility that she would be required to move.

The trial judge went on to consider the nature and gravity of the offence, as well as the circumstances surrounding its commission, as per s. 19.1 of the CDSA. The motive of the operation was clearly to gain profit; the fact that the Nguyens lived elsewhere further solidified the conclusion that they purchased the home for the purposes of the grow op alone. According to the trial judge, aggravating circumstances included the fact that the Nguyens exposed their eldest daughter to the risk of home invasion, and that this type of offence is expanding beyond the capacity of police resources to control it. Mitigating these circumstances were the facts that the Nguyens had no prior criminal records, they were not associated with organized crime, they had young children living with them and they possessed no weapons associated with the maintenance of the grow op. Weighing all these factors, the trial judge decided that forfeiture of the property was necessary to provide an adequate level of deterrence for this type of crime.

In R. v. K.T. Nguyen; R. v. N.T. Nguyen, 2007 BCCA 474, Mr. and Mrs. Nguyen argued at the Court of Appeal for British Columbia that the judge erred in failing to address whether the impact of this forfeiture would be disproportionate; instead, the judge improperly focussed on whether it was necessary to provide adequate deterrence. The BCCA disagreed with this assertion, holding that the judge properly considered all of the statutory criteria in the context of his sentencing decision, though this consideration was at times implied. The BCCA cited their decision in R. v. Craig, 2007 BCCA 234, where the court stated that ss. 19.1(3) and (4) do not require that the forfeiture itself be considered objectively disproportionate to the nature and gravity of the offence. Rather, s. 19.1(3) reads, “if a court is satisfied that the impact of an order of forfeiture would be disproportionate;” the BCCA understood Parliament’s choice of the word ‘impact’ to mean that a subjective element is included in the analysis of a forfeiture order. Contemplating this subjective element allowed the Nguyen trial judge to craft a sentence in which he considered deterrence to be a key objective, and according to the BCCA, this element is statutorily permissible. Deterrence, contrary to the Nguyens’ argument, was a valid focus for the trial judge.

The BCCA concluded by conceding that it would have been preferable had the trial judge articulated his findings with respect to proportionality. Yet by reading his reasons as a whole, the trial judge impliedly concluded that complete forfeiture would not be disproportionate to the nature and gravity of the offence, the circumstances surrounding the commission of the offence, the criminal record of the appellants, and the impact of the order on the appellants or their family. Though the trial judge could have been clearer, the BCCA held that he did consider all of the criteria set out in ss. 19.1(3) and (4).

It remains to be seen whether the SCC will read a similar implication into the trial judge’s reasoning for the forfeiture of property. When Nguyen is decided, along with Judy Ann Craig v. Her Majesty the Queen and Her Majesty the Queen v. Yves Ouellette in the coming months, we will discover the extent to which implication may be read into a judge’s reasoning in this context. This may have a significant impact upon the way in which appellate review is conducted.