Nguyen v. Quebec and Suspended Declarations of Constitutional Invalidity
Based on the outcry from all sides of the political spectrum, it is no wonder that the Supreme Court of Canada took a middle-of-the-road approach in its decision in Nguyen v. Quebec (Education, Recreation and Sports), 2009 SCC 47. (A comprehensive factual background of the case was provided on TheCourt.ca in May 2008 by representatives of the Quebec Association of Independent Schools when the case first appeared on the Supreme Court docket.)
Writing for a unanimous Court, Justice LeBel held paragraphs 2 and 3 of section 73 of the Quebec Charter of the French Language (provisions dealing with minority language education) as being inconsistent with subsection 23(2) of the Canadian Charter of Rights and Freedoms. However, in attempting to achieve a delicate balance that is arguably necessary when it comes to language and Quebec, the Court also suspended the declaration of unconstitutionality for a full year, resulting in what Peter Hogg calls “Temporary Validity” of the law in question.
When it came to the specific situations of the claimants, the Court issued two different orders to the Ministry of Education despite the one year suspension of unconstitutionality. For one of the claimants, Bindra, the Court ordered that a Certificate of Eligibility for instruction in English be issued. For the other claimant, Nguyen (and the claimant group of 25 that fell within that scope), the Court simply ordered that the files be returned to the Ministry of Education and be reassessed in light of its judgment.
The decision resulted in a heated debate in the Quebec National Assembly during which the leader of the opposition filed a motion to “denounce the decision of the Supreme Court” (« Que l’Assemblée nationale du Québec dénonce la décision rendue ce matin par la Cour suprême du Canada invalidant les dispositions de la loi n° 104. »). Such antics are hardly surprising to anyone who has sat in on a legislative session. On the other end of the spectrum, there was outrage as to why the Court didn’t strike down the laws in a plain vanilla fashion, without a one year suspension. Media coloured the Supreme Court decision with headlines such as “Parents score a win in court – sort of” (The Gazette) and “A qualified win” for minority rights (The National Post). The Ottawa Citizen noted that to regard the case as a rights victory would be an “overstatement” and that the decision will bring to light the “negative impact” Quebec language laws are having on immigrants (“Language Lunacy – Again”).
In light of these criticisms from all sides, it is necessary to return to the underlying constitutional principles and the “reach” of section 23 of the Canadian Charter.
Section 23 of the Canadian Charter enumerates three circumstances which give rise to “Minority Language Educational Rights” (the right to instruction in English in Quebec or instruction in French in the rest of Canada): (i) based on the mother tongue of a parent (s.23(1)(a)); (ii) based on the language of instruction received by a parent in Canada (s.23(1)(b)); and (iii) based on the language of instruction received by one of the children in the family in Canada (s.23(2)). Subsection 23(2) is entitled “Continuity of Language Instruction” and provides:
(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.
A few important points should be noted regarding section 23:
- Section 23 applies only to “citizens of Canada.” Landed immigrants, permanent residents, and refugee claimants have no right to claim language priority for their children’s education;
- Section 23 confers rights on parents for the education of their children, and not directly on the child;
- Under subsection 23(3), the rights conferred under subsections (1) and (2) take effect only where the number of children who would fall within the scope of those provisions is “sufficient to warrant” public expenditure;
- Finally, paragraph 23(1)(a), or the mother tongue clause (providing that a parent whose “first language learned and still understood” is of a linguistic minority has the right to have their children receive instruction in that language) is inapplicable in the Province of Quebec by virtue of subsection 59(2) of the Constitution Act, 1982.
Given these restrictions on the scope of section 23, the majority of the critics who claim the Court did not go far enough can be addressed. Even though minority language rights are entrenched in the Canadian Charter, the fact that they are the result and the embodiment of political compromise cannot be understated. As Justice LeBel notes at para. 26, a section 23 analysis must take into account “the social, demographic and historical context” as well as a consideration for “the official languages dynamics in each province.” In Quebec, the context includes a recognition of French as “the official language of Quebec” and the protection of the heritage associated with the French language. The Supreme Court had held this to be a “pressing and substantial objective” as early as Ford v. Quebec,  2 S.C.R. 712. Where section 23 is concerned with protecting official languages in provinces where they are spoken by a minority, in Quebec, the analysis is one of balancing the competing concerns of the francophone and anglophone populations.
Another point to bear in mind is that section 23 of the Canadian Charter does not create an all-out “freedom of choice” as highlighted by the Supreme Court’s decision in Gosselin v. Quebec,  1 S.C.R. 238. In Gosselin, francophone parents challenged section 73 of the Charter of the French Language as being unconstitutional on the basis of section 23 and section 15 of the Canadian Charter. The Court dismissed all claims, holding on the section 23 issue that the appellants, as members of the francophone majority in Quebec had no right to access to English language instruction for their children.
In the case of the Nguyen claimants (as opposed to Bindra, discussed further below), however, none of this should even be material. The facts clearly indicate a scheme nearing fraud being perpetrated by private institutions on the Government of Quebec. Subsection 73 of the Charter of French Language provides five instances in which children may receive instruction in English. One of these is the case of a child “who has received or is receiving elementary or secondary instruction in English in Canada” (s.73(2), in similar vein to s.23(2) of the Canadian Charter). To meet this requirement, a growing number of “bridging schools” (écoles passerelles) began to prop up, which provided parents the opportunity to qualify under s.73(2):
parents whose children were not entitled to instruction in the minority language were enrolling their children in unsubsidized private schools for short periods so that they would be eligible … to attend publicly funded English schools (at para. 7)
To short-circuit this circumvention, the Quebec National Assembly amended s.73 and added paragraph 2, which reads:
However, instruction in English received in Québec in a private educational institution not accredited for the purposes of subsidies by the child for whom the request is made, or by a brother or sister of the child, shall be disregarded.
Instruction received at unaccredited private eductional institutions would no longer be counted when determining eligibilty for English language instruction. In Nguyen, the Supreme Court simply struck down this paragraph as being too broad. Under the section 1 analysis, the Court clearly upheld the intentions and objective of the legislature. However, the Court held that wholesale disregard for time spent at unaccredited private institutions would undermine the “Genuine Educational Pathway” (Solski v. Quebec,  1 S.C.R. 201) approach to assessing whether a child qualifies for minority language education.
The Bindra claim was on a different ground. There, the Quebec Government had given one child in a family a special authorization to study in English but then refused to let the other sibling receive publically funded English education, relying on paragraph 3 (enacted along with paragraph 2 in 2002) which reads: “Instruction in English received pursuant to a special authorization under section 81, 85 or 85.1 shall also be disregarded.” Here, the Supreme Court ordered the Ministry of Education to issue a Certificate of Eligibility in English to the other Bindra sibling.
An argument could be made that the Court should have separated the two different paragraphs when deciding on appropriate dispositions. The Court was correct in suspending the unconstitutionality of paragraph 2 and allowing Quebec to rework how it closes the écoles passerelles loophole. However, the Court should have come down hard on paragraph 3 and struck it down with immediate effect. Once the Ministry gives special authorization to one child in a family to receive instruction in one official language, it does not make sense to deny the same of another child in the family. Such an argument again fails to recognize the delicate political balance that the Court must attain when deciding on language cases in Quebec. Quebec does not have any constitutional obligation to provide special authorization for English education under section 81, 85, or 85.1. Striking down the law without an opportunity for dialogue could result in a chilling effect on granting such special authorizations.
The Government of Quebec provides possibly the most extensive services to its linguistic minority (the anglophones) of all the provinces of Canada. Nguyen v. Quebec represents a reasoned and wise response by the Supreme Court of Canada to an overbroad law that was the result of a legitimate concern. Providing the legislature with a one year period to rework the law—and to ensure that a balance is met between the protection of French cultural heritage and the provision of English language instruction to legitimate claimants—is an appropriate remedy, given the subtle and intricate task demanded of the Court.