Solski (Tutor of) v. Quebec (Attorney General)

The Court — The issue in this case is whether the Quebec legislature’s attempt to define the categories of rights holders provided for under s. 23 of the Canadian Charter of Rights and Freedoms by means of the “major part” requirement set out in s. 73 of Quebec’s Charter of the French language, R.S.Q., c. C-11 (“CFL”), is an unconstitutional restriction of these rights. In our view, it is not; the term “major” must however be read so that it is given a “qualitative” meaning rather than a “quantitative” meaning. We would consequently allow the appeal in part.

The protection of minority language rights by s. 23 of the Canadian Charter is an integral part of the broader protection of minority rights, a principle recognized as foundational to Canada’s Constitution in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 79. Minority language rights are fundamental because “[l]anguage is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it”: Mahe v. Alberta, [1990] 1 S.C.R. 342, at p. 362; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 748-49. The constitutional protection of minority language rights is necessary for the promotion of robust and vital minority language communities which are essential for Canada to flourish as a bilingual country.

Education rights play a fundamental role in promoting and preserving minority language communities. Indeed, “[m]inority language education rights are the means by which the goals of linguistic and cultural preservation are achieved”: Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3, 2003 SCC 62, at para. 26; see also Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, 2000 SCC 1, at para. 26; Mahe, at pp. 363-64. Minority language education is a requisite tool to encourage linguistic and cultural vitality. Not only do minority schools provide basic language education, they also act as community centres where the members of the minority can meet to express their culture. Thus, the education rights provided by s. 23 form the cornerstone of minority language rights protection.

Before ss. 16 to 23 of the Canadian Charter came into force, s. 133 of the Constitution Act, 1867 already contained a rudimentary language rights scheme. In addition, legislation that was quite broad in scope, although it did not have constitutional status, had been implemented by the federal government and by a number of provinces: this legislation included the Official Languages Act , R.S.C. 1985, c. 31 (4th Supp .), enacted by the Parliament of Canada in 1969; the CFL in Quebec and the Official Languages of New Brunswick Act, S.N.B. 1969, c. 14 (see M. Bastarache, “Introduction”, in M. Bastarache, ed., Language Rights in Canada (2nd ed. 2004), 1, at pp. 21‑23). These legislative schemes govern situations in which not only individual rights, but also the existence of language communities and the manner in which those communities perceive their future, are in issue.

Owing to the existence of these two levels of social and legal relationships, the establishment of rules to govern language rights is a sensitive issue. First, the members of the minority communities and their families, in every province and territory, must be given the opportunity to achieve their personal aspirations. Second, on the collective level, these language issues are related to the development and existence of the English-speaking minority in Quebec and the French-speaking minorities elsewhere in Canada. They also inevitably have an impact on how Quebec’s French-speaking community perceives its future in Canada, since that community, which is in the majority in Quebec, is in the minority in Canada, and even more so in North America as a whole. To this picture must be added the serious difficulties resulting from the rate of assimilation of French-speaking minority groups outside Quebec, whose current language rights were acquired only recently, at considerable expense and with great difficulty. Thus, in interpreting these rights, the courts have a responsibility to reconcile sometimes divergent interests and priorities, and to be sensitive to the future of each language community. Our country’s social context, demographics and history will therefore necessarily comprise the backdrop for the analysis of language rights. Language rights cannot be analysed in the abstract, without regard for the historical context of the recognition thereof or for the concerns that the manner in which they are currently applied is meant to address.

The very presence of s. 23 in the Canadian Charter attests to the recognition, in our country’s Constitution, of the essential role played by the two official languages in the formation of Canada and in the country’s contemporary life (Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, 2002 SCC 53, at para. 22). It also confirms that the need and desire to ensure that language communities continue to exist and develop represented one of the primary objectives of the language rights scheme that has gradually been implemented in Canada. Although the process of recognizing and defining those rights has at times been marked by difficulties and conflicts, some of which are still before the courts today, the presence of two distinct language communities in Canada and the desire to reserve an important place for them in Canadian life constitute one of the foundations of the federal system that was created in 1867, as this Court observed in Reference re Secession of Quebec, at para. 59:

The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. This is the case in Quebec, where the majority of the population is French‑speaking, and which possesses a distinct culture. This is not merely the result of chance. The social and demographic reality of Quebec explains the existence of the province of Quebec as a political unit and indeed, was one of the essential reasons for establishing a federal structure for the Canadian union in 1867. The experience of both Canada East and Canada West under the Union Act, 1840 (U.K.), 3‑4 Vict., c. 35, had not been satisfactory. The federal structure adopted at Confederation enabled French‑speaking Canadians to form a numerical majority in the province of Quebec, and so exercise the considerable provincial powers conferred by the Constitution Act, 1867 in such a way as to promote their language and culture. It also made provision for certain guaranteed representation within the federal Parliament itself.

Section 23, which is linked to the broader principle of protection of minority rights that was recognized by this Court in Reference re Secession of Quebec as one of the fundamental principles of the Canadian Constitution, reflects a common desire to protect Canada’s English- and French-speaking minorities, and to promote their development. Any broad guarantee of language rights attests to a fundamental respect for and interest in the cultures that are expressed by the protected languages (Mahe, at p. 362). Thus, the recognition of rights to minority language instruction contributes to the preservation of the minority language and culture, as well as of the minority group itself (Doucet‑Boudreau, at para. 26). With this in mind, this Court has been sensitive to the concerns, and the language dynamics, of Quebec, where a majority of the members of Canada’s French-speaking minority is concentrated (see, for example: Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66, at p. 82; Ford, at pp. 777-78; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, at p. 851).

When the Canadian Constitution was patriated, the adoption of s. 23 of the Canadian Charter confirmed the framers’ intention to guarantee rights to instruction that were, in principle, identical for all of Canada’s minority language groups (Arsenault‑Cameron, at para. 26). However, that principle was watered down considerably in the case of Quebec: s. 59 of the Constitution Act, 1982 provides that s. 23(1)(a) does not apply in Quebec. It may come into force only with the authorization of the National Assembly or the Quebec Government. To date, such authorization has not been given. To this extent, s. 59 limits the classes of rights holders in Quebec to those described in ss. 23(1)(b) and 23(2) (Quebec Association of Protestant School Boards, at p. 82). By so defining the classes of rights holders, which are in theory uniform throughout Canada but are limited in Quebec by the effect of s. 59, the framers also rejected the freedom to choose the language of instruction in Quebec (P. Foucher, “Language Rights and Education”, in M. Bastarache, ed., Language Rights in Canada (1987), 255, at p. 263; J.-P. Proulx, “Les normes périjuridiques dans l’idéologie québécoise et canadienne en matière de langue d’enseignement” (1988), 19 R.G.D. 209, at p. 219; A. Braën, “Les droits scolaires des minorités de langue officielle au Canada et l’interprétation judiciaire” (1988), 19 R.G.D. 311, at pp. 317 and 319).

The current wording of s. 23 undoubtedly reflects the difficulties encountered in the discussions and negotiations that led up to the patriation of the Canadian Constitution in 1982. In formulating those constitutional rights, the framers could not turn a deaf ear to the recognition sought by Francophones outside Quebec for substantive equality in education. It was also impossible to ignore the concern felt by Quebec’s Anglophone minority as a result of the language disputes arising out of the “Quiet Revolution”, which had culminated in the enactment of the CFL. Finally, the anxiety of a significant segment of Quebec Francophones about the future of their language was a known fact, if only because of the upheavals it had caused in Canadian politics, and even more so in Quebec politics. This Court in fact acknowledged the existence of this fear among Quebec Francophones that their mother tongue would disappear when, in a case involving the legislation regarding the language of signs, it analysed, under s. 1 of the Canadian Charter , the evidence submitted by the parties to demonstrate that the legislation had a serious and legitimate purpose (Ford, at p. 778).

Indeed, federalism still plays an important role in the application of s. 23. As education falls within the purview of provincial power, each province has a legitimate interest in the provision and regulation of minority language education: Arsenault-Cameron, at para. 53. Nevertheless, with the exception of s. 23(1)(a) in Quebec, all provincial minority language education regimes must be consistent with the requirements of s. 23 of the Canadian Charter . As the Court noted in Arsenault-Cameron, “[a]lthough the Minister is responsible for making educational policy, his discretion is subordinate to the Charter ” (para. 40).

It is our view that s. 73(2) of the CFL can be interpreted to conform with s. 23(2) of the Charter .

Charter of the French language, R.S.Q., c. C‑11

72. Instruction in the kindergarten classes and in the elementary and secondary schools shall be in French, except where this chapter allows otherwise.

This rule obtains in school bodies within the meaning of the Schedule and in private educational institutions accredited for purposes of subsidies under the Act respecting private education (chapter E‑9.1) with respect to the educational services covered by an accreditation.

Nothing in this section shall preclude instruction in English to foster the learning thereof, in accordance with the formalities and on the conditions prescribed in the basic school regulations established by the Government under section 447 of the Education Act (chapter I‑13.3).

73. The following children, at the request of one of their parents, may receive instruction in English:

(1) a child whose father or mother is a Canadian citizen and received elementary instruction in English in Canada, provided that that instruction constitutes the major part of the elementary instruction he or she received in Canada;

(2) 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, provided that that instruction constitutes the major part of the elementary or secondary instruction received by the child in Canada;

(3) a child whose father and mother are not Canadian citizens, but whose father or mother received elementary instruction in English in Québec, provided that that instruction constitutes the major part of the elementary instruction he or she received in Québec;

(4) a child who, in his last year in school in Québec before 26 August 1977, was receiving instruction in English in a public kindergarten class or in an elementary or secondary school, and the brothers and sisters of that child;

(5) a child whose father or mother was residing in Québec on 26 August 1977 and had received elementary instruction in English outside Québec, provided that that instruction constitutes the major part of the elementary instruction he or she received outside Québec.

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. The same applies to instruction in English received in Québec in such an institution after 1 October 2002 by the father or mother of the child.

Instruction in English received pursuant to a special authorization under section 81, 85 or 85.1 shall also be disregarded.

75. The Minister of Education may empower such persons as he may designate to verify and decide on children’s eligibility for instruction in English under any of sections 73, 81, 85 and 86.1.

Canadian Charter of Rights and Freedoms

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.

(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.

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province

(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and

(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

Constitution Act, 1982

59. (1) Paragraph 23(1)(a) shall come into force in respect of Quebec on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

(2) A proclamation under subsection (1) shall be issued only where authorized by the legislative assembly or government of Quebec.

. . .

The judgment of the Quebec Court of Appeal from which this appeal stems involved three families who requested certificates of eligibility to allow their child or children to attend public English-language schools pursuant to s. 73 of the CFL. The requests were denied on the ground that the child or children had not completed the “major part” of their instruction in the minority language.

The Solski family left Poland in 1990 to take up a temporary work assignment in Canada. Their children, Mateusz and Karol, were permitted to attend an English-language school on a temporary basis pursuant to s. 85 of the CFL. In 1993, the Solski family decided to settle in Quebec and seek Canadian citizenship. The temporary certificate expired in July 1994. Accordingly, the children attended a French-language school beginning in November 1994 and remained there until September 1997. In May 1997, the family acquired Canadian citizenship. In the academic year 1997-1998, the children completed their first year of secondary school in an English-language school despite the fact that they did not have authorization. In August 1998, the school required the Solski children to obtain a certificate of eligibility under the CFL. The Solskis applied but were refused by the Minister of Education’s designated person on the basis that the secondary studies completed by the children to date had been completed unlawfully because they had not obtained eligibility certificates. The review committee on language instruction (“review committee”) and the Administrative Tribunal of Québec (“ATQ”) upheld the decision made by the designated person. The ATQ considered that, at the primary level, the children had received 34 months of instruction in French, 24 months of instruction in English under the temporary stay exemption, and one month of so-called “illegal” instruction in English, since it was received after the temporary certificate expired. On this basis, the ATQ deemed that the major part of the elementary education of the Solski children had been in French. It also concluded that the first year of secondary school in an English-language school had been completed illegally, since the children had not received eligibility certificates beforehand, and that such a situation could not generate a right.

The appellant, Edwidge Casimir, is a Canadian citizen and is the mother of two children, Shanning and Edwin. Shanning attended grades 1 and 2 in the French immersion program offered at St. Elizabeth School which is administered by an English school board in Ottawa. Shanning received 50 percent of her education in French and 50 percent of her education in English. In July 2000, the family moved to Montreal. Ms. Casimir applied for a certificate of eligibility under s. 75 of the CFL for the purposes of sending Shanning to an English-minority-language school. The application was denied by the Minister’s designated person on the grounds that Shanning had not received the major part of her education in English as required by s. 73(2) of the CFL. As discussed in the companion appeal (Okwuobi v. Lester B. Pearson School Board, [2005] 1 S.C.R. 257, 2005 SCC 16), Ms. Casimir did not apply for review of the designated person’s decision to the ATQ, but rather challenged the constitutionality of s. 73 in the Superior Court.

Marie Lacroix is a Canadian citizen who completed her own primary and secondary instruction in French schools in Quebec. She is the mother of two children, Ève and Amélie. Amélie completed grades 1 and 2 in a private French school. She then attended an unsubsidized private school that provided 60 percent English instruction and 40 percent French instruction. Ms. Lacroix applied for a certificate of eligibility under s. 75 of the CFL but was denied on the basis that Amélie did not satisfy the major part requirement set out in s. 73(2). The review committee and the ATQ upheld the decision made by the Minister’s designated person.

Concurrently with their recourse before the ATQ, the Solski family sought declaratory relief in the Superior Court of Quebec. Specifically, the Solskis asked the Court to declare (1) that s. 73(2) of the CFL is inconsistent with s. 23 of the Canadian Charter to the extent that the “major part” criterion narrows the category of eligible rights holders; and (2) that the Solski children are entitled under s. 23(2) to receive their secondary school education in English in Quebec. The Superior Court agreed: [2001] R.J.Q. 218. After reviewing the history of the impugned provisions of the CFL and the jurisprudence surrounding s. 23 of the Canadian Charter , the trial judge concluded that s. 23(2) did not stipulate a minimum requirement. In particular, the use of the term “is receiving” indicates that the framers intended that a child who is pursuing his instruction in the minority language at the time of the application, regardless of his previous studies, would be a rights holder under s. 23(2) (para. 138). The trial judge also rejected the Attorney General’s argument that the Solski children would remain ineligible on the basis that they had subsequently attended a private unsubsidized school because such institutions are not subject to the CFL (paras. 149 et seq.). Therefore, the court declared s. 73(2) to be inconsistent with s. 23(2) to the extent that it limited the category of persons eligible to receive minority language education. The trial judge relied on this Court ’s decision in Quebec Association of Protestant School Boards to conclude that s. 1 could not justify the s. 23(2) infringement.

The Attorney General of Quebec appealed the decision to the Court of Appeal, but the Solskis decided not to contest the appeal. Accordingly, the Court of Appeal authorized the intervention of the Casimir and Lacroix families. The Court of Appeal allowed the appeal: [2002] R.J.Q. 1285. It rejected the trial judge’s interpretation of s. 23(2) as it failed to accord with the purpose of s. 23. The Court of Appeal opined that the trial judge’s “snapshot” approach would allow quasi-automatic access to subsidized public or private English-language school in Quebec for children of the French-speaking majority or allophones who spend a short time in unsubsidized private English-language schools. The Court of Appeal concluded that the “major part” requirement set out in s. 73(2) of the CFL achieves the purpose of s. 23 because it confers upon the Minister, and ultimately the Superior Court on judicial review, a discretionary power to determine which children are legitimate rights holders (para. 63). Accordingly, the Court of Appeal did not consider s. 1 of the Canadian Charter .

By order of Deschamps J., dated November 14, 2002, Edwidge Casimir was authorized to be substituted for Cezary and Isabella Solski as a party. Further, Ms. Lacroix did not file an application for leave to appeal the decision of the Court of Appeal and is accordingly not a party in this appeal.

Section 23 provides a comprehensive code of minority language education rights which afford special status to minority English- or French-language communities. The Court in Mahe, at p. 369, recognized that this special status would create inequalities between linguistic groups. See also Adler v. Ontario, [1996] 3 S.C.R. 609, at para. 32. Specifically, English speakers living in Quebec and French speakers living in the territories and other provinces would enjoy rights denied to other linguistic groups. Section 23 has been described as an exception to ss. 15 and 27 of the Canadian Charter ; it is rather an example of the means to achieve substantive equality in the specific context of minority language communities. While this entrenched inequality may be the product of political compromise and negotiation, this does not mean that s. 23 rights are to be construed narrowly. The Court has confirmed on several occasions that language rights must be interpreted in a broad and purposive manner consistent with the preservation and promotion of both official language communities in Canada: R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 25; Reference re Public Schools Act (Man.), at p. 850; Reference re Secession of Quebec, at para. 80; Arsenault-Cameron, at para. 27.

The minority language education rights entrenched in s. 23 are national in scope and remedial in nature. At the time the section was adopted, the framers were aware of the various regimes governing the Anglophone and Francophone linguistic minorities throughout Canada and perceived these regimes as inadequate. Section 23 was intended to provide a uniform solution to remedy these inadequacies. As the Court explained in Quebec Association of Protestant School Boards, at pp. 79-80, where the constitutionality of the CFL’s education provisions was under review:

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.

Given the national character of s. 23 , the Court has interpreted the rights provided by this provision in a uniform manner from province to province: Quebec Association of Protestant School Boards; Mahe; Reference re Public Schools Act (Man.); Arsenault-Cameron; Doucet-Boudreau. This is not to say however that the unique historical and social context of each province is irrelevant; rather, it must be taken into account when provincial approaches to implementation are considered, and in situations where there is need for justification under s. 1 of the Canadian Charter : Ford, at pp. 777-81.

In our Court , different approaches to the interpretation of s. 23 were advanced. The very nature and scope of the rights to minority language education were analysed by parties that had different perceptions of present realities. For the Attorney General of Quebec, s. 23 is a provision for the implementation of community rights; for the appellant, it is about individual rights that can be exercised by qualified persons throughout Canada.

As is often the case, these two approaches are not entirely devoid of merit

(C. Ryan, “L’impact de la Charte canadienne des droits et libertés sur les droits linguistiques au Québec”, Numéro spécial de la Revue du Barreau en marge du vingtième anniversaire de l’adoption de la Charte canadienne des droits et libertés , March 2003, 543, at p. 551). Section 23 is clearly meant to protect and preserve both official languages and the cultures they embrace throughout Canada; its application will of necessity affect the future of minority language communities. Section 23 rights are in that sense collective rights. The conditions for their application reflect this (Doucet-Boudreau, at para. 28): implementation depends on numbers of qualified pupils (Mahe, at pp. 366-67; Reference re Public Schools Act (Man.), at p. 850; Arsenault-Cameron, at para. 32). Nevertheless, these rights are not primarily described as collective rights, even though they presuppose that a language community is present to benefit from their exercise. A close attention to the formulation of s. 23 reveals individual rights in favour of persons belonging to specific categories of rights holders.

The main question in this appeal is to decide the proper interpretation of s. 23(2) of the Canadian Charter and whether the CFL’s “major part” threshold is consistent with this constitutional requirement. To do so, it is important to briefly set out the interpretation given to the “major part” requirement under s. 73(2) by the Minister and the ATQ, as well as the interpretation endorsed by the respondent, the Attorney General of Quebec.

Section 73(2) of the CFL establishes the eligibility requirements for a child to receive instruction in English in Quebec. It provides:

73. The following children, at the request of one of their parents, may receive instruction in English:

. . .

(2) 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, provided that that instruction constitutes the major part of the elementary or secondary instruction received by the child in Canada.

The Minister has interpreted the “major part” requirement in a disjunctive and strictly mathematical manner. The Minister will consider either the child’s primary school attendance or the child’s secondary school attendance, but will not consider them cumulatively (appellant’s record, vol. III, at pp. 400-435). Further, the Minister will determine eligibility solely on the basis of the number of months spent in each language. Other factors, including the availability of linguistic programs and the presence of learning disabilities or other difficulties, which are developed below, are not considered. The ATQ has adopted this interpretation: Affaires sociales — 288, [1999] T.A.Q. 269; S.A. v. Comité de révision sur la langue d’enseignement, [2001] T.A.Q. 935; J.B. v. Comité de révision sur la langue d’enseignement, [2002] T.A.Q. 15.

This strict mathematical approach is also advocated by the Attorney General of Quebec. The Attorney General argues that the “major part” requirement evidences a sufficient link between the child and the minority language community. In his view, the existence of a sufficient link is necessary to achieve the purpose of s. 23, which is to guarantee instruction in the minority language to members of a particular language community. The sufficient link requirement precludes those members of the allophone or majority language community from obtaining English instruction preferentially (respondent’s factum, at paras. 50, 67-68). The Attorney General of Quebec submits that each provincial legislature may legitimately establish the qualifications for attending minority language schools as part of their legislative powers over education (respondent’s factum, at paras. 73-74). According to the Attorney General of Quebec, the “major part” threshold offers an objective and easily discernible standard that serves as a constitutionally permissible proxy for the sufficient link requirement (respondent’s factum, at para. 65).

We cannot accept that the strict mathematical approach is consistent with s. 23(2) of the Canadian Charter . Section 23(2) is designed to identify a single category of beneficiaries. It must receive a broad interpretation consistent with the constitutional objective of protecting minority language communities.

Based on the proper interpretation of s. 23(2), which we will set out in detail below, we are of the view that in order to comply with this constitutional provision, the CFL’s “major part” requirement must involve a qualitative rather than a strict quantitative assessment of the child’s educational experience through which it is determined if a significant part, though not necessarily the majority, of his or her instruction, considered cumulatively, was in the minority language. Indeed, the past and present educational experience of the child is the best indicator of genuine commitment to a minority language education. The focus of the assessment is both subjective, in that it is necessary to examine all of the circumstances of the child, and objective, in that the Minister, the ATQ and the courts must determine whether the admission of a particular child is, in light of his or her personal circumstances and educational experience, past and present, consistent with the general purposes of s. 23(2) and, in particular, the need to protect, preserve and reinforce the minority language community by granting individual rights to a specific category of beneficiaries.

Section 23(2) of the Canadian Charter provides minority language education rights that are concerned with the language of instruction of the child rather than the language of instruction of the parents. As with s. 23(1)(b), the rights holders are the parents even though the language of instruction of the child is the qualifying standard. Section 23(2) states:

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.

As discussed earlier, the proper interpretation of s. 23(2) must be purposive; it must reflect the remedial nature of the provision and it must be consistent with the intent to adopt a uniform set of minimum rights which in fact restrict provincial jurisdiction over education.

The specific purpose of s. 23(2) is to provide continuity of minority language education rights, to accommodate mobility and to ensure family unity. The framers intended that a child who has received or is receiving his or her education in one official language should be able to complete it in that language when it is the minority language. The Honourable Mr. Jean Chrétien, then Minister of Justice, explained:

Mr. Speaker, this government holds the view that such rights must be protected in the constitution because they are fundamental to what Canada is all about. When minority language education rights are taken away, the right to take up a job in any part of Canada is seriously impaired. English-speaking Canadians, if they move to Quebec, want to have the right to send their children to school in their own language. . . .

Similarly French-speaking Canadians do not want to move to other parts of Canada unless they can send their children to school in their own language. The only way to achieve this is to guarantee such rights in the constitution. In effect, without a guarantee of minority language education rights, there can be no full mobility rights.

(House of Commons Debates, vol. III, 1st Sess., 32nd Parl., October 6, 1980, at p. 3286)

The title of the provision, “Continuity of language instruction”, accords with this interpretation. Further, once one sibling has received or is receiving minority language education, all other siblings are entitled to receive instruction in the minority language as well. P. Foucher, in “Les droits scolaires des minorités linguistiques”, in G.-A. Beaudoin and E. Mendes, eds., The Canadian Charter of Rights and Freedoms (3rd ed. 1996), 16-1, at p. 16-12, confirms that family unity is an integral aspect of this provision.

Nevertheless, many persons qualify under s. 23 without being “of the minority”, even Francophones in provinces other than Quebec who have chosen English education for their children. In this respect, s. 23(2) applies without regard to the fact that qualified parents or children may not be French or English, or may not speak those languages at home, despite the fact that the ultimate goal of s. 23 is to protect and promote minority language communities. The conditions for qualification under s. 23 reflect the fact that new Canadians in particular will decide to adopt one or the other official languages, or both, as participants in the Canadian language regime. We now consider what interpretation of s. 23(2) accords with this purpose.

The first part of the phrase “has received or is receiving” is also reflected in s. 23(1)(b), which entitles parents who have received their primary school instruction in English or French to have their children educated in that language if it is the minority language in the province. The words “has received” or “have received” connote a reference to one’s “school record” or “educational experience”, or “parcours scolaire” if one is referring to the expression used by the Court of Appeal in this case. In both ss. 23(1)(b) and 23(2), the object of the provisions is the same. A similar approach must be used in their interpretation.

Provincial legislation that establishes criteria regarding the educational experience of the child is helpful. These criteria must, however, accord with the purpose of s. 23. This purpose indicates that s. 23 is both a social and collective right, and an individual and civil right. It must indeed be noted here again that children qualified under s. 23 are not required to have a working knowledge of the minority language, or to be members of a cultural group that identifies with the minority language. The section is remedial. In previous cases, this Court has insisted that s. 23 must be interpreted so as to facilitate the reintegration of children who have been isolated from the cultural community the minority school is designed to protect and develop. Section 23(2) in particular facilitates mobility and continuity of education in the minority language, though change of residence is not a condition for the exercise of the right. As noted, s. 23 is also meant to apply to some members of cultural communities that are neither French nor English. To purposefully assess the requirement for participation in s. 23(2), therefore, all the circumstances of the child must be considered including the time spent in each program, at what stage of education the choice of language of instruction was made, what programs are or were available, and whether learning disabilities or other difficulties exist. In this way, it is possible to determine whether a child’s overall educational experience is sufficient to meet the requirements of s. 23(2).

The application of s. 23 is contextual. It must take into account the very real differences between the situations of the minority language community in Quebec and the minority language communitie of the territories and the other provinces. The latitude given to the provincial government in drafting legislation regarding education must be broad enough to ensure the protection of the French language while satisfying the purposes of s. 23. As noted by Lamer C.J. in Reference re Public Schools Act (Man.), at p. 851, “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”.

The pertinent question, then, is whether the “major part” requirement is consistent with the purpose of s. 23(2) and capable of ensuring that the children meant to be protected will actually be admitted to minority language schools. In our view, the “major part” requirement as interpreted by the ATQ is underinclusive; it does not achieve the purpose of s. 23(2) and, therefore, cannot be said to complete it or to act as a valid substitute for it. Thus, the “major part” requirement cannot be saved unless it is interpreted such that the word “major” is given a qualitative rather than a quantitative meaning.

Reading down s. 73 to keep it within the permissible scope of s. 23 of the Canadian Charter (Clark v. Canadian National Railway Co., [1988] 2 S.C.R. 680; Derrickson v. Derrickson, [1986] 1 S.C.R. 285; R. v. Sharpe, [2001] 1 S.C.R. 45, 2001 SCC 2) is warranted in cases where the “bulk of the legislative policy to be accomplished [is allowed], while trimming off those applications that are constitutionally bad”: P. W. Hogg, Constitutional Law of Canada (4th ed. 1997), at p. 401. Reading down is also consistent with the presumption that legislation is enacted to comply “with the norms embodied in Canada’s entrenched Constitution”: R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 367.

The strict mathematical approach lacks flexibility and may even exclude a child from education vital to maintaining his or her connection with the minority community and culture. For example, a child who has completed grades 1, 2 and 3 in French and grades 4, 5 and 6 in English may have formed a sufficient link with the minority language community, but would not qualify under s. 73(2). It might also be that the language learned in the last three years may provide a better marker than that learned in the first three years. Too many relevant factors are ignored. In short, the strict approach mandated by the Minister of Education fails to deal fairly with many persons who must be qualified under a purposive interpretation of s. 23(2) of the Canadian Charter .

A number of factors, including those mentioned above (i.e., the time spent in each program, at what stage of education the choice of language of instruction was made, what programs are or were available, and whether learning disabilities or other difficulties exist), may be considered in the course of a qualitative assessment of a child’s overall educational experience in order to determine if it is sufficient to meet the requirements of s. 23(2). In the sections that follow, we will discuss the factors mentioned above; however, it must be acknowledged that the relevance of each factor will vary with the facts of each case and other factors may also arise depending on the circumstances of the particular child and his or her educational experience, past and present.

(2) Factors to Consider

(a) How Much Time Was Spent in Each Program?

Although it is not a conclusive factor, it is nonetheless important to consider the time a child spent in the minority language program, cumulatively, at the primary and secondary levels, where relevant, when determining if that child’s total educational experience is sufficient to meet the requirements of s. 23(2). This factor is relevant because the more time a child spends in such a program, the easier it is to find a true intention to adopt that language of instruction over the other; this factor is a marker of an existing affiliation with the official minority language community. It cannot be enough, in light of the objectives of s. 23, for a child to be registered for a few weeks or a few months in a given program to conclude that he or she qualifies for admission, with his or her siblings, in the minority language programs of Quebec.

Since the time spent by a child in the minority language education program may evidence a more significant connection with the language of the minority than that of the majority, the purpose of s. 23(2) to provide continuity of minority language education rights, to accommodate mobility and to ensure family unity is engaged. The question of whether there is a sufficient connection with the language of the minority must therefore be viewed from both a subjective and an objective perspective. Subjectively, do the circumstances show an intention to adopt the minority language as the language of instruction? Objectively, do the educational experiences and choices to date support such a connection?

That being said, it is important to remember that s. 23(2) of the Canadian Charter does not specify a minimum amount of time a child must spend in a minority language education program before his or her educational experience can qualify under s. 23(2), nor does it require that the time spent in the minority language education program be greater than the time spent in the majority language education program. Thus, this factor must not be applied in a strict, mathematical matter. Nor should it be considered in isolation. Rather, the time spent in each program must be considered in concert with the other factors discussed below and always in light of the purposes of s. 23(2).

(b) At What Stage of Education Was the Choice of Language of Instruction Made?

Another factor that may be relevant in determining whether a child’s educational experience is sufficient to meet the requirements of s. 23(2) will be the stage of education at which the choice of language of instruction was made. It may be important to consider what education came first. In some cases the initial choice of language will be a better indicator of intention to permanently adopt one language rather than the other; in other cases it will not. The reasons behind any change may be revealing. Choosing the minority language as one enters secondary school might also evidence a stronger, more informed commitment to that language than if the choice was made during the early, primary years of schooling, given the more stringent academic demands associated with secondary education, as well as its impact on post-secondary education opportunities. As stated above, once a commitment to instruction in the minority language is shown on the facts of the case, the purpose of s. 23(2) to provide continuity of minority language education rights, to accommodate mobility and to ensure family unity is engaged.

(c) What Programs Are or Were Available?

In determining whether a child’s education experience is sufficient to meet the requirements of s. 23(2), it is also important to consider the past and present availability of minority language education programs. For example, if a child completes grade 1 in the minority language but then spends the next three school years in an area where minority language is unavailable, it is clear that he or she has not received the “major part” of his or her education to date in the minority language under the restrictive interpretation of s. 73 of the CFL. However, under a purposive interpretation of s. 23(2) of the Canadian Charter , the time spent in the majority language educational system, when a minority language school was unavailable, ought not to be considered as indicative of a choice to adopt the majority language as the child’s language of instruction. One aspect of the purpose of s. 23(2) is to accommodate mobility. This purpose would be frustrated and parents and their children, as well as the minority language community as a whole, would be unjustly penalized if children were barred from continuing with instruction in the minority language once they moved to an area in which it was available again simply because they temporarily lived in an area in which it was unavailable. There again it is obvious that the situation of students moving to Quebec will be unique, the availability of instruction in English in the territories and other provinces being unquestioned. As mentioned earlier, the geographical context is always important.

It is also important to consider the availability of minority language education programs from a socio-cultural perspective and with respect to the circumstances of each child. When considering the situation in a province other than Quebec, one must remember that a child could have been sent to a majority language school by assimilated parents who then, in the latter stages of the child’s educational experience, have changed their minds and sent the child to a minority language school in order to help the child reintegrate the minority language community and adopt its culture. It may be that the choice to enrol the child in a minority language education program, even though the program may have been available throughout the child’s educational experience, did not become a viable choice until the child’s assimilated parents decided to help their child reforge a connection with the minority language community and culture. In this context, the remedial purpose of s. 23(2) is engaged, and, as stated above, this right must be interpreted so as to facilitate the reintegration of children who have been isolated from the cultural community the minority school is designed to protect and develop. In these circumstances, it would be beneficial and in line with the purpose of s. 23(2) for the siblings of this child to receive minority language education. All this is to emphasize that the application of s. 23 must take into account the very real differences between the situation of the minority language community in Quebec and the minority language communities in the territories and other provinces. Therefore, while certain educational experiences may not qualify for minority language education under the “major part” requirement, defined qualitatively, in s. 73 of the CFL, this does not mean that they could not qualify under other provincial minority language education legislative schemes, which are necessarily responsive to their own province’s unique historical and social context.

(d) Do Learning Disabilities or Other Difficulties Exist?

Another relevant factor in some circumstances will be whether the child is having difficulty learning in one language as compared to the other. For example, if a child completes grades 1, 2 and 3 in the minority language and then switches to the majority language for grades 4, 5 and 6 and experiences learning difficulties in that language, it would be unacceptably punitive to force that child to continue in the majority language, especially when it may be that the child has made a more significant connection with the minority language community, given the fact that he or she finds that instruction in that language is more conducive to learning.

(3) Summary

A “major part” requirement, defined qualitatively, i.e., as meaning a “significant part”, as described in para. 28 is a valid qualifier for “parcours scolaire” or “educational experience”. The “major part” requirement must make room for the nuances and subjectivity required to determine whether the admission of a particular child, considering his or her personal circumstances, is consistent with the objectives of s. 23 and the specific need to protect and reinforce the minority language community.

The purpose of the s. 23(2) criteria is to guarantee continuity of minority language education rights and mobility to children being educated in one of the official languages. If children are in a recognized education program regularly and legally, they will in most instances be able to continue their education in the same language. This is consistent with the wording of s. 23(2) and the purposes of protecting and preserving the minority-language community, as well as with the reality that children properly enrolled in minority-language schools are entitled to a continuous learning experience and should not be uprooted and sent to majority-language schools. Uprooting would not be in the interest of the minority language community or of the child. Nevertheless, a qualitative assessment of the situation to determine whether there is evidence of a genuine commitment to a minority language educational experience is warranted, with each province exercising its discretion in light of its particular circumstances, obligation to respect the objectives of s. 23, and educational policies.

The approach will be both subjective and objective. This does not imply an artificial “snapshot” approach. Provincial governments are entitled to verify that registration and overall attendance in the program, the past and present educational experience of the child, are consistent with participation in the class of beneficiaries defined in s. 23(2).

(4) Other Issues

We now turn to other related issues: What of the nature of instruction? How should immersion programs and private schools be treated when determining or assessing whether a child is entitled to receive minority language instruction?

The Quebec legislature does not consider whether the language of instruction was received in the context of an immersion program or a minority- language school. For example, Shanning Casimir received 50 percent of her education in English and 50 percent of her education in French in the context of a French immersion program; she was found not to have completed the “major part” of her education in English. This fails to recognize significant differences between immersion programs and minority language programs. Outside Quebec, immersion programs are designed to provide second language training to children attending schools designed for those adopting the language of the majority. Immersion programs occur in a majority setting where the majority language is spoken in the corridors and during extra-curricular activities. Immersion programs are run in majority schools that are a part of the majority school system. As a result, immersion programs lack the cultural element that is vital to minority language education, as discussed in Mahe. There, this Court insisted on the need to identify schools with the minority in coming to the decision that s. 23 guaranteed the right to management to representatives of the minority. Therefore, while there is nothing in the language of s. 23(2) that strictly restricts the nature of the instruction, it would be contrary to the purpose of the provision to equate immersion with minority language education. In our view, recognizing immersion as a branch of minority language education fails to appreciate the fact that Shanning Casimir was actually receiving education for Anglophones and that she has a stronger link with the English linguistic community than the French. As a result, Shanning was entitled to continue her education in Quebec’s minority language, English, under s. 23(2) of the Canadian Charter and s. 73(2) of the CFL.

The qualification of private schools also arises incidentally in the cases of the Solski family and the Lacroix family. The Court of Appeal expressed concern about [TRANSLATION] “quasi-automatic access to subsidized public or private English-language school in Quebec for children of the French-speaking majority or allophones who spend a short time in unsubsidized private English-language schools” (para. 55). The trial judge more aptly described the problem as the availability of private school creating a distinction between the affluent and the less affluent (para. 153). In 2002, the Quebec legislature introduced Bill 104, which amends s. 73 of the CFL so as to disqualify education in private unsubsidized English schools when calculating the “major part” requirement (S.Q. 2002, c. 28, s. 3). The constitutionality of this provision is not before this Court but is the subject of other ongoing judicial proceedings; accordingly, it will not be dealt with here. Prior to these amendments, however, the Quebec legislature must be taken to have accepted attendance at a private unsubsidized school as valid when calculating the major part of a child’s education.

While the current quantitative approach to s. 73 of the CFL is not the standard required by s. 23(2) of the Canadian Charter , the Attorney General of Quebec argues, in the alternative, that it is justifiable under s. 1. It is his view that the unique linguistic position of Quebec in Canada — the provincial majority language community is also the national minority language community — can serve as a justification for the “major part” requirement as interpreted by him. We do not consider it necessary to examine that possibility. Reading down s. 73 permits Quebec to meet its legislative objectives while ensuring that no persons eligible under s. 23 of the Canadian Charter are excluded from minority-language schools if they choose to attend them. Nevertheless, we will examine briefly the primary concerns of the Attorney General of Quebec to ensure the qualitative interpretation adequately addresses them.

The Quebec Government is concerned that some Francophone children will become able to attend English subsidized schools by first registering and attending private unsubsidized English schools for a short period of time. In particular, the Quebec Government is afraid that the free choice model will be indirectly reinvigorated (respondent’s factum, at para. 92). The free choice model was introduced in Bill 63 entitled An Act to promote the French language in Québec, S.Q. 1969, c. 9. The only requirement for a child to receive English-language instruction was that the parents had to apply for such instruction at the time of enrollment. As earlier noted, this problem has now been dealt with by Bill 104. Its constitutionality is not before us and will not be considered here.

The other major concern is with children of immigrants. But children who have immigrated directly to Quebec can only attend English-language school in two circumstances: (1) where a temporary stay certificate pursuant to s. 85 of the CFL has been granted; or (2) where they attend a private, unsubsidized English-language school. The first of these conditions is dealt with in a Regulation respecting the exemption from the application of the first paragraph of section 72 of the Charter of the French language that may be granted to children staying in Québec temporarily, (1997) 129 G.O. II, 1970. This regulation provides for the circumstances in which a child will be exempted from the requirement in s. 72 of the CFL that he or she receive instruction in French. The circumstances contemplated in this regulation can be described as those in which there is no apparent intention to permanently settle in Quebec. The Attorney General of Quebec says essentially that since children who are exempted under s. 85 of the CFL receive the exemption when their family has no apparent intention to settle in Quebec permanently, should their family eventually choose to make Quebec its permanent home, then the time spent in instruction in English under the temporary stay exemption ought to be disqualified from the “major part” calculation. In other words, the time at which immigration (rather than simply a temporary stay) is contemplated should be considered as a fresh start to determine eligibility. As in the case of unsubsidized private schools however, the National Assembly has chosen to deal with this issue in Bill 104 which provides that temporary permits shall be disregarded in the “major part” calculation. Since Bill 104 is not before us, we believe it is best to consider, as in the case of unsubsidized schools, that Quebec must be taken to have accepted that instruction received under such permits should be considered prior to the adoption of Bill 104. During this period, the proper test is evidence of commitment to instruction in the minority language, however it originated. After the 2002 amendment, other considerations are at play and will be dealt with in due course.

The legislature’s concern about interprovincial immigration, that is individuals who immigrate to another province in Canada, become Canadian citizens and then move to Quebec, is a different issue. We believe that concern is addressed in our interpretation of the “major part” requirement.

Accordingly, we would declare that s. 73(2) of the CFL is valid but must be read so that the term “major” is given a qualitative meaning.

We will now consider whether the Solski, Casimir and Lacroix children qualify for minority language instruction.

The Solskis abandoned the appeal of this case following the trial judgment; it is not necessary to deal with their particular circumstances.

Although Ms. Lacroix was not a party before this Court , she did intervene before the Court of Appeal and for the purposes of clarity, we think it appropriate to consider the situation of her children in light of our decision here. In our view, the Lacroix children were entitled to the benefit of the year spent in a private unsubsidized English school under the regime and administrative practice prior to the enactment of Bill 104, the constitutionality of which is not considered here.

The Casimir children were also entitled to attend subsidized minority language institutions because of their prior experience in immersion programs which must be qualified as majority language instruction. Although Shanning Casimir received 50 percent of her curriculum-based education in French, the fact that she received this education in a French immersion program, and therefore in an English-language setting, qualifies her education as English education.

For the above reasons, we would allow the appeal in part. The Casimir and Lacroix children are found to have been eligible for English education. Properly interpreted, s. 73(2) of the Charter of the French language is constitutional. Costs are awarded to the appellant throughout the proceedings to which she was a party.