Supreme Court of Canada

A.G. (Que.) v. Quebec Protestant School Boards, 1984 CanLII 32 (SCC), [1984] 2 SCR 66

Date: 1984-07-26

The Attorney General of Quebec Appellant;

and

Quebec Association of Protestant School Boards, The Protestant School Board of Greater Montreal and Lakeshore School Board Respondents;

and

The Attorney General of Canada Respondent;

and

The Island of Montreal School Council Mis en cause.

The Attorney General of Quebec Appellant;

and

Helena Wong-Woo, Hardeep Walia, Kee Chor Fong and Savitaben Patel Respondents.

The Attorney General of Quebec Appellant;

and

Marlene Orman Respondent.

The Attorney General of Quebec Appellant;

and

Chi Sum Mak Respondent.

The Attorney General of Quebec Appellant;

and

Sharon Lynn Toma Respondent;

The Attorney General for New Brunswick Intervener.

File No.: 17821.

1984: February 21, 22; 1984: July 26.

Present: Ritchie, Dickson, Beetz, Estey, Mclntyre, Lamer and Wilson JJ.

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ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Constitutional law—Canadian Charter of Rights and Freedoms—Languages and education—English instruction—Limitations—Provincial provisions inconsistent with Charter—Whether provincial provisions are of no force or effect—Charter of the French language, R.S.Q. 1977, c. C-11, ss. 72-88—Canadian Charter of Rights and Freedoms, ss. 1, 23, 32(1), 33(1),(2)—Constitution Act, 1982, ss. 52(1),(2), 59(1),(2).

The purpose of this appeal is to determine whether the provisions regarding English instruction contained in Chapter VIII of the Charter of the French language (“Bill 101”) are inconsistent with the Canadian Charter of Rights and Freedoms (the “Charter”) and of no force of effect to the extent of the inconsistency. Motions for a declaratory judgment were submitted to the Superior Court, which held that there was an inconsistency and ruled Chapter VIII of Bill 101 to be of no force or no effect to the extent of the inconsistency. Its judgments were affirmed by the Court of Appeal—hence this appeal by the Attorney General of Quebec from the Court of Appeal judgments.

Held: The appeal should be dismissed.

Sections 72 and 73 of Chapter VIII of Bill 101 are inconsistent with s. 23 of the Charter and are of no force or effect to the extent of the inconsistency as a consequence of s. 52(1) and (2)(a) of the Constitution Act, 1982. The limits imposed by s. 73 are not legitimate limits within the meaning of s. 1 of the Charter, to the extent that the latter section applies to rights conferred by s. 23. In view of the period when the Charter was enacted and especially in light of the wording of s. 23, which repeats the unique set of criteria contained in s. 73 of Bill 101, it is apparent that Chapter VIII seemed to the framers as an archetype of the regimes needing reform. Accordingly, the limits which Bill 101 imposes on rights relating to the language of instruction cannot possibly have been regarded by the framers of the Constitution as coming within “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

Even if enacted after the Charter, the s. 73 limits could not be legitimized by s. 1 of the Charter. Section 73 redefines for Quebec the classes of persons who are entitled to instruction in the minority language, and has the effect of creating an exception to s. 23 and of amending the Charter. Whatever their scope, the limits which s. 1 allows cannot be equated with exceptions to the rights and freedoms guaranteed by the Charter and

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may not be treated as amendments to the Charter. As the exception clause contained in s. 33 of the Charter does not cover s. 23, it is only by following the procedure laid down for amending the Constitution that it is possible to validly redefine the classes of persons protected by s. 23. An ordinary statute will not suffice.

Ottawa Separate Schools Trustees v. MacKell, 1916 CanLII 418 (UK JCPC), [1917] A.C. 62; Bureau métropolitain des écoles protestantes de Montréal v. Ministre de l’Éducation du Québec, 1976 CanLII 1262 (QC CS), [1976] C.S. 430, 83 D.L.R. (3d) 645, referred to.

APPEAL from five judgments of the Court of Appeal for Quebec¹, which affirmed five judgments of the Superior Court². Appeal dismissed.

Jean-K. Samson, Réal A. Forest and André Binette, for the appellant.

Colin Irving, Allan R. Hilton and Cherine Cheftechi, for respondents Quebec Association of Protestant School Boards, The Protestant School Board of Greater Montreal and Lakeshore School Board.

Julius Grey and Alex K. Paterson, Q.C., for respondents Marlene Orman, Chi Sum Mak, Sharon Lynn Toma, Helena Wong-Woo, Hardeep Walia, Kee Chor Fong and Savitaben Patel.

RaynoId Langlois, Q.C., Louis Reynolds and Claude Joli-Cœur, for respondent the Attorney General of Canada.

B.A. Crane, Q.C., and Robert G. Richards, for the intervener the Attorney General for New Brunswick.

English version of the judgment delivered by

THE COURT

I—Introduction

The question is whether the provisions regarding instruction in English contained in Chapter VIII of the Charter of the French language, R.S.Q. 1977,

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c. C-11, and in the regulations adopted thereunder, are inconsistent with the Canadian Charter of Rights and Freedoms and of no force or effect to the extent of the inconsistency.

The applicable legislative and constitutional provisions must first be considered.

Chapter VIII of the Charter of the French language (“Bill 101”), which came into effect on August 26, 1977, is entitled “The Language of Instruction”. At the time the proceedings were initiated, it consisted of seventeen sections, 72 to 88 inclusive. However, ss. 72 and 73 are at the heart of the matter, and only they need be cited:

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 also applies to subsidized instruction provided by institutions declared to be of public interest or recognized for purposes of grants in virtue of the Act respecting private education (chapter E-9).

73. In derogation of section 72, the following children, at the request of their father and mother, may receive their instruction in English:

(a) a child whose father or mother received his or her elementary instruction in English, in Québec;

(b) a child whose father or mother domiciled in Québec on 26 August 1977, received his or her elementary instruction in English outside Québec;

(c) a child who, in his last year of school in Québec before 26 August 1977, was lawfully receiving his instruction in English, in a public kindergarten class or in an elementary or secondary school;

(d) the younger brothers and sisters of a child described in paragraph c.

The applicable constitutional provisions are ss. 1, 23 and 32(1) of the Canadian Charter of Rights and Freedoms (the “Charter”), and ss. 52(1) and (2) and 59(1) and (2) of the Constitution Act, 1982, of which the Charter is part. These provisions read as follows:

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can

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be demonstrably justified in a free and democratic society.

Section 23 of the Charter is entitled “Minority Language Educational Rights”. It provides:

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.

Section 32(1) of the Charter states:

32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

However, s. 23(1)(a) of the Charter, cited above, is not in force in Quebec, pursuant to s. 59(1) and (2) of the Constitution Act, 1982:

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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.

Finally, s. 52(1) and (2)(a) of the Constitution Act, 1982 provides:

52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

(2) The Constitution of Canada includes

(a) the Canada Act 1982, including this Act;

It follows from these provisions that, if ss. 72 and 73 of Bill 101 are inconsistent with s. 23 of the Charter, they are of no force or effect to the extent of the inconsistency as a consequence of s. 52(1) and (2)(a) of the Constitution Act, 1982, unless they are legitimized by s. 1 of the Charter to the extent, of course, that s. 1 applies to the rights conferred by s. 23.

II—The pleadings and the judgments of the Superior Court and Court of Appeal

Some weeks after the Constitution Act, 1982 came into effect, on April 17, 1982, the Superior Court was presented with five motions for a declaratory judgment.

The motion of the Quebec Association of Protestant School Boards, The Protestant School Board of Greater Montreal and Lakeshore School Board asked that the following two questions be answered in the affirmative:

Are school boards operating English language primary or secondary schools obliged to admit to English language schooling therein children who qualify pursuant to Sections 23(1)b) and 23(2) of the Canadian Charter whether or not they qualify under La Charte de la langue française and have complied with its requirements?

If the answer to question (i) is affirmative, do the school boards have the right to receive grants from public funds for the education of such children on the same basis as applies in respect of children who qualify for English

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language education under La Charte de la langue française?

The same motion further asked the Court to rule:

that the restrictions on access to English language education contained in Sections 72 et sqq. of La Charte de la langue française and the regulations thereunder, to the extent that they are inconsistent with Sections 23(1)b), 23(2) and 23(3) are of no force and effect.

With leave of the Superior Court, the Attorney General of Canada formally intervened to ask the Court to make three declarations along much the same lines as the two answers and the declaration proposed by applicants, although the wording differed.

The other four motions for a declaratory judgment were submitted by Canadian citizens. They asked the Court to find that the children of the applicants were eligible for instruction in English. The conclusions of these four motions are similar. It will suffice to cite one of them:

TO DECLARE that the petitioners are entitled under Section 23(2) and Section 23(3) to send his child to a publicly funded school dispensing instruction in English in the Province of Quebec notwithstanding any provision of the Charter of the French Language;

In five separate judgments Deschênes C.J.S.C., as he then was, allowed the five motions and in essence made the declarations requested. In particular, he answered in the affirmative the two questions put in the first motion and, in the judgment on this motion, he held Chapter VIII of Bill 101 and two regulations adopted pursuant to the provisions of Chapter VIII to be of no force or effect “in so far as they are inconsistent with that part of s. 23 of the Canadian Charter of Rights and Freedoms which is in force in Quebec”.

The judgment rendered on the first motion is quite thorough. It was published sub. nom. Quebec Association of Protestant School Boards v.

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Procureur général du Québec, 1982 CanLII 3268 (QC CS), [1982] C.S. 673. A translation of this judgment in English has also been published: (1982), 140 D.L.R. (3d) 33, 3 C.R.R. 114. The four other judgments have not been reported. They are quite brief, for they refer to the published judgment. The headnote appears to us to accurately summarize the reasons of Deschênes C.J. on the first motion. What the headnote writer calls the “Quebec clause” is s. 73 of Bill 101, and what he calls the “Canada clause” is s. 23 of the Charter. On the merits of the question he writes, at p. 674:

[TRANSLATION] …the Quebec clause enacted in the Quebec Charter is inconsistent with the Canada clause contained in the federal Charter. Section 1 of the federal Charter is of general application and accordingly covers s. 23: the burden of proving that the Quebec clause meets the conditions laid down by s. 1 is on Quebec. This clause cannot be interpreted merely as a limitation falling within s. 1, and the Court cannot accept the argument that the denial of certain individual rights can be justified as a consequence of the limitation of collective rights: the Quebec clause must therefore give way. Alternatively, if the Court had concluded that this clause was a limitation, it would have found that it was a limitation prescribed by law that can be justified in a democratic society, but would be inclined to conclude that the clause is disproportionate to the objective sought and unnecessarily exceeds the limits of what is reasonable; Quebec certainly did not succeed in establishing on a balance of probabilities that the Quebec clause constitutes a “reasonable limit” within the meaning of s. 1 of the Canadian Charter, as may be seen from the vigorous controversy contained in the evidence.

In five judgments, the Court of Appeal dismissed the five appeals from the five trial judgments. The appeal judgments were rendered from the bench and, according to the appellant, without his submissions having been heard on the alternative reasons of the trial judge. Rather brief reasons were subsequently filed. The three judges of the Court of Appeal were unanimous in their conclusions but differed in their reasons.

Monet J.A. wrote reasons concurred in by McCarthy J.A. He noted that it was conceded that the provisions of Chapter VIII of Bill 101 and of s.

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23 of the Charter are inconsistent. He also noted that essentially appellant used s. 1 of the Charter to justify Chapter VIII of Bill 101. Like the trial judge, he recognized that the rights conferred by s. 23 of the Charter are guaranteed subject to the provisions of s. 1: in his view, however, far from merely imposing limits on the rights conferred by s. 23 of the Charter, Chapter VIII of Bill 101 has the effect of denying or abolishing these rights, and this is not authorized by s. 1 of the Charter.

Beauregard J.A. agreed with his two brother judges and the trial judge that the rights secured by s. 23 of the Charter can be subject to a limit within the meaning of s. 1 of the Charter. He considered, on the other hand, that the wording of s. 1, taken to its limit, might not preclude the possibility of limiting a right to the point of denying it. Nevertheless, Beauregard J.A. concluded as did the majority for the following reasons:

[TRANSLATION] …it is quite apparent, and this seems to me to destroy appellant’s argument, that s. 23 was adopted specifically and deliberately to limit the effects of Chapter VIII or other similar statutes, and that accordingly it is pointless to ask which provision limits which.

This is especially true as s. 23 was worded so precisely and guarantees such a specific right, to such a limited number of individuals, that it is hard to see how such an absolute limitation as that in Chapter VIII, however legitimate, could be regarded as other than a prohibited invasion of this right.

He also said that, in order to be justified within the meaning of s. 1 of the Charter, a limit or denial must assume the merits of the guaranteed right, and not challenge its very basis as in his view Chapter VIII of Bill 101 does.

Pursuant to leave granted by this Court, appellant appealed from the five judgments of the Court of Appeal.

At the request of respondents Quebec Association of Protestant School Boards, The Protestant School Board of Greater Montreal and Lakeshore

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School Board, the lamented Laskin C.J. stated the following constitutional questions:

(1) Are the provisions regarding access to English language education contained in Chapter VIII of the Charter of the French language (R.S.Q. 1977, c. C-11) and the regulations thereunder, inconsistent with the Canadian Charter of Rights and Freedoms and to the extent of the inconsistency, are they of no force or effect?

(2) Are school boards operating English language primary or secondary schools obliged to admit to English language schooling therein children who qualify pursuant to sections 23(1)(b) and 23(2) of the Canadian Charter of Rights and Freedoms whether or not they qualify under the Charter of the French language and have complied with its requirements?

(3) Do school boards have the right to receive grants from public funds for the education of such children on the same basis as applies in respect of children who qualify for English language education under the Charter of the French language?

The Attorney General of New Brunswick was given leave to intervene and supported the position taken by respondents.

Counsel for the Island of Montreal School Council, the mis en cause on the first motion, informed the Court that it did not intend to prepare a submission or participate in the hearing.

III—Inconsistency between ss. 72 and 73 of Bill 101 and s. 23 of the Charter

It is not disputed that ss. 72 and 73 of Bill 101 and s. 23 of the Charter are inconsistent. Nevertheless, it is useful to indicate exactly the nature and extent of this inconsistency. The trial judge made a comparative study of the applicable legislative and constitutional provisions, and described this inconsistency in language the accuracy of which, at least in general terms, does not appear to have been disputed. He said the following, at pp. 681 and 682 of his judgment:

[TRANSLATION] Section 72 of Bill 101 enunciates the principle unambiguously: “Instruction… shall be in French, except where this chapter allows otherwise.”

Section 73 provides the only exceptions which are of interest in this case. “In derogation of section 72”: the words at the beginning of s. 73 clearly indicate that it is

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an exception. Applying traditional canons of construction, s. 73 should receive a restrictive interpretation: only those who fall within the four categories enumerated in s. 73 are to be admitted to English schools.

We are familiar with these categories since the court has already quoted the section.

In the first category, the right follows from father or mother to son or daughter on condition that the mother or father received his or her primary education in English in Quebec.

In the three other categories, still subject to the “Quebec condition”, the right will gradually fade away to lapse toward the end of the century: all children falling within these three categories should have completed their secondary schooling by then, and only in the case of a genetic accident will the period be extended.

But under s. 73 the children of immigrants, even English-speaking immigrants from other parts of Canada or from foreign countries, are not to be admitted into English schools in Quebec.

Section 73 sets out what has come to be known, in constitutional jargon in these last few years, as the “Quebec clause”.

Undoubtedly, the Minister, Mr. Laurin, had this clause in mind when he spoke, last May 5th, of the “authentically English-speaking minority of Quebec”.

Without doubt, it was this clause which was contemplated by the White Paper of March, 1977, setting out “La politique québecoise de la langue française” when it described English schooling as “an exceptional system for the present minority in Quebec”.

On the other hand, s. 23 of the Charter, in s-ss. 1(b) and (2)—the only ones, along with s-s. (3) which are in force in Quebec—allows access to English schools to children whose parents, being citizens of Canada resident in Quebec, have received primary instruction in English in Canada or those children of citizens of Canada having a brother or a sister who has received or is receiving primary or secondary instruction in English in Canada.

Subsection (3) of the same section makes this right subject to the condition of “a sufficient number” of children, etc., but this condition presents no problem in Quebec.

In the same constitutional jargon, s. 23 of the Charter sets out the “Canada clause” in the general sense.

How should these two clauses be compared?

Paragraphs (a) and (b) of s. 73 of Bill 101 are included in s. 23(1)(b) of the Charter, if the condition of

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citizenship is fulfilled; if not, Bill 101 is more permissive than the Charter.

Paragraphs (c) and (d) of s. 73 are included within s. 23(2) of the Charter, on the same condition; if not, again it would be necessary to consider Bill 101 as broader than the Charter.

In short, for those who are citizens of Canada, all cases contemplated by s. 73 of Bill 101 are equally covered by the Charter; for non-naturalized aliens Bill 101 is more generous.

Up to this point the applicants cannot complain of any contradiction. But, what of the inverse situation?

Section 23 of the Charter only applies to citizens of Canada: one must keep this premise constantly in mind.

Section 23(1)(b) opens English schooling in Quebec to children whose parents have received their primary instruction in English anywhere in Canada.

This general eligibility is prohibited in Quebec by the combined effect of ss. 72 and 73 of Bill 101.

Section 23(2) of the Charter opens English schooling in Quebec to children of citizens of Canada who have a brother or sister who has received or is receiving primary or secondary instruction in English anywhere in Canada.

This general eligibility is, again, denied by the effect of the same provisions of Bill 101.

The conclusion, then, is inevitable: Bill 101 and the Charter are incompatible.

IV—Arguments raised by appellant and the first constitutional question

The arguments raised by appellant may be summarized in three propositions:

(1) section 1 of the Charter, which guarantees the rights and freedoms contained in that document, applies to all the rights so guaranteed, including that conferred by s. 23;

(2) section 1 of the Charter does not distinguish between the limit and denial of a right, and makes the reasonable and justifiable nature of the limit the true test of its constitutionality;

(3) the provisions of Chapter VIII of Bill 101 place upon the right secured by s. 23 of the Charter reasonable limits that can be justified in a free and democratic society.

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The first proposition was approved by the Court of Appeal and the Superior Court. We are disposed to take this proposition as established, but for the sake of discussion only and without deciding the point.

The second and third propositions, like the first, were supported by a thorough memorandum and argument in which, inter alia, s. 1 of the Charter, the requirements which it imposes, the presumption of constitutionality and the question of the burden of proof were analysed in light of judicial interpretation of similar clauses in other constitutional charters by the Judicial Committee of the Privy Council for the Commonwealth nations and by the Supreme Court of India, as well as in light of American precedents and decisions of the courts on the Canadian Bill of Rights. Counsel for the appellant further argued that not only have respondent applicants not succeeded in establishing that the provisions relating to access to English schooling in Quebec are unreasonable, but also that the latter are reasonable within the meaning of s. 1 of the Charter, in view of factors such as demographic patterns, the physical mobility (migration) and linguistic mobility (“assimilation”) of individuals and the regional distribution of interprovincial migrants. It was further argued that other free and democratic societies such as Switzerland and Belgium, which have socio-linguistic situations comparable to that in Quebec, have adopted stricter linguistic measures than Bill 101, and these measures have been held to be reasonable and justified by the Swiss and European courts. Finally, it was argued that the collective right of the Anglophone minority in Quebec to cultural survival is not threatened by Bill 101, which establishes a system providing access to English schooling which is not unreasonable.

We do not think it necessary to go into these arguments, for none of them answers the reasons of Beauregard J.A. of the Court of Appeal in the part of his opinion cited above. These reasons, with which we agree in substance, are fatal to appellant’s position, and in our opinion are conclusive.

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Section 23 of the Charter is not, like other provisions in that constitutional document, of the kind generally found in such charters and declarations of fundamental rights. It is not a codification of essential, pre-existing and more or less universal rights that are being confirmed and perhaps clarified, extended or amended, and which, most importantly, are being given a new primacy and inviolability by their entrenchment in the supreme law of the land. The special provisions of s. 23 of the Charter make it a unique set of constitutional provisions, quite peculiar to Canada.

This set of constitutional provisions was not enacted by the framers in a vacuum. When it was adopted, the framers knew, and clearly had in mind the regimes governing the Anglophone and Francophone linguistic minorities in various provinces in Canada so far as the language of instruction was concerned. They also had in mind the history of these regimes, both earlier ones such as Regulation 17, which for a time limited instruction in French in the separate schools of Ontario—Ottawa Separate Schools Trustees v. Mackell, 1916 CanLII 418 (UK JCPC), [1917] A.C. 62—as well as more recent ones such as Bill 101 and the legislation which preceded it in Quebec. Rightly or wrongly,—and it is not for the courts to decide,—the framers of the Constitution manifestly regarded as inadequate some—and perhaps all—of the regimes in force at the time the Charter was enacted, and their intention was to remedy the perceived defects of these regimes by uniform corrective measures, namely those contained in s. 23 of the Charter, which were at the same time given the status of a constitutional guarantee. 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

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Charter was in large part a response to these sections.

Until 1969, the laws of Quebec appear to have been silent on the language of instruction, but in fact the system operated so as to leave almost complete freedom to everyone at all educational levels. Following the conflict that occurred in 1968 at the Saint-Léonard school board, where an attempt had been made to impose instruction in French on children of Italian immigrants—see Joseph Eliot Magnet, “Minority-Language Educational Rights”, (1982) 4 Supreme Court L.R. 195, at p. 202—the Quebec legislator adopted the Act to promote the French language in Québec, 1969 (Que.), c. 9, also known as Bill 63. Despite its title, this Act embodied in legislation the freedom of choice regarding language of instruction which had existed up to then. However, the Quebec legislator indicated a concern with immigration in s. 3, where it directed the Minister of Immigration to

…in co-operation with the Minister of Education, take the measures necessary so that the persons who settle in Québec may acquire the knowledge of the French language upon arrival or even before they leave their country of origin, and may have their children instructed in educational institutions where courses are given in the French language.

This Act was replaced in 1974 by the Official Language Act, 1974 (Que.), c. 6, also known as Bill 22. Title 1 of this Act stated in its single section that French is the official language of Quebec. Chapter V of Title III is entitled “The Language of Instruction”. Sections 40 and 41 gave French a certain degree of priority. The first paragraph of s. 40 provided that the language of instruction shall be French in the schools governed by the school boards, the regional school boards and the corporations of trustees, and the second paragraph stated that school boards, regional school boards and corporations of trustees “shall continue” to provide instruction in English. The third paragraph provided for control over increasing or reducing instruction in English by the Minister of Education, who was not to give his authorization “unless he considers that the number of pupils whose mother tongue is English and who

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are under the jurisdiction of such body warrants it”. Section 41 provided that pupils must have a sufficient knowledge of the language of instruction to receive their instruction in that language, which had the practical effect of closing off French schooling to the majority of Anglophone pupils and English schooling to the majority of Francophone pupils. Section 41 also provided that pupils who do not have a sufficient knowledge of any of the languages of instruction must receive their instruction in French, a provision which, though it did not say so expressly, was directed at immigrants, unless they were French- or English-speaking.

These provisions of the Official Language Act were found to be intra vires by Deschênes C.J.S.C. in Bureau métropolitain des écoles protestantes de Montréal v. Ministre de l’Éducation du Québec, 1976 CanLII 1262 (QC CS), [1976] C.S. 430, 83 D.L.R. (3d) 645. The Court of Appeal of Quebec dismissed an appeal on the ground that the Official Language Act had been replaced by Bill 101: (1978), 83 D.L.R. (3d), at p. 679, see note.

Thus, at the time the Charter was adopted, there had for some years been legislation in Quebec which, apart from the Act adopted in 1969, tended to give preferred treatment to French as the language of instruction, and correspondingly to lessen the benefits hitherto given to English, in fact if not in law. The culmination of this legislation was Bill 101.

Although the fate reserved to the English language as a language of instruction had generally been more advantageous in Quebec than the fate reserved to the French language in the other provinces, Quebec seems nevertheless to have been the only province where there was then this tendency to limit the benefits conferred on the language of the minority. In the other provinces at the time, either the earlier situation had remained unchanged, at least so far as legislation was concerned, as in Newfoundland and British Columbia which have no legislation on the language of instruction, or else relatively recent statutes had been adopted improving the situation of the lin-

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guistic minority, as in New Brunswick, Nova Scotia and Prince Edward Island: see Alfred Monnin, then a puisne judge of the Manitoba Court of Appeal, “L’égalité juridique des langues et l’enseignement: les écoles françaises hors-Québec”, (1983) 24 C. de D. 157.

It is therefore not surprising that Bill 101 was very much in the minds of the framers of the Constitution when they enacted s. 23 of the Charter, which guarantees “minority language educational rights”. This is confirmed when the wording of this section is compared with that of ss. 72 and 73 of Bill 101, and with other provincial statutes on the language of instruction.

To begin with, the fact that Quebec is the only province in Canada in which, by virtue of s. 59(1) and (2) of the Constitution Act, 1982, s. 23(1)(a) of the Charter is not yet in force and cannot be brought into force without the consent of Quebec, indicates clearly that the framers of the Constitution had Quebec specially in mind when they enacted s. 23 of the Charter. It may be possible to suggest a reason for this exception: so far as Quebec is concerned, s. 23(1)(a) applies to Canadian citizens whose first language is English but who did not receive their primary school instruction in that language in Canada, that is, in practice, largely immigrants whose first language is English and who have become Canadian citizens. It is therefore plausible to think that this particular provision of the Charter was suspended for Quebec in part so as to calm the concerns regarding immigration, that, long before Bill 101 was adopted, were expressed in Quebec because of the minority status of French in North America.

It is above all when we compare s. 23(1)(b) and (2) of the Charter with s. 73 of Bill 101 that it becomes most apparent that the latter is the type of regime on which the framers of the Constitution modelled s. 23. Both in the Charter and in Bill 101, the criteria that must be considered in deciding the right to instruction in the minority language are the place where the parents received their instruction in the minority language. Both in the Charter and in Bill 101, that place is where the

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parents received their primary school instruction. Both in the Charter and in Bill 101, satisfying this criterion gives a right to primary and secondary school instruction in the minority language, and Bill 101 adds the right to education at the kindergarten level. Both in the Charter and in Bill 101, the criteria also include the language of instruction of a child’s brothers and sisters, though Bill 101 refers to the younger brothers and sisters of children included in a category which is temporary by nature,—a limit not found in the Charter.

Now, of all the provincial statutes relating to the language of instruction that were in force at the time the Charter was adopted, only Bill 101 imposes criteria as specific and unique as those we have just indicated—see the statutes listed by A. Monnin, op. cit.

It is true that certain provincial statutes, such as An Act to amend the School Act of Prince Edward Island, 1980 (P.E.I.), c. 48, s. 9, and An Act to Amend Chapter 81 of the Revised Statutes, 1967, the Education Act of Nova Scotia, 1981 (N.S.), c. 20, s. 2, contain a definition of the mother tongue similar to that found in s. 23(1)(a) of the Charter, or, that others, like the Nova Scotia statute just mentioned, refer to the concept of “a sufficient number of children” found in s. 23(3)(a) and (b) of the Charter, but equally found in s. 79 of Bill 101, which provides that a school body not already giving instruction in English may not introduce it without authorization from the Minister of Education, who shall grant it if, in his opinion, it is warranted by the number of pupils who come within the jurisdiction of the school body and who are eligible for instruction in English under s. 73.

However, once again, to our knowledge no other provincial statute that was in force at the time the Charter was adopted and which dealt with the language of instruction has criteria as specific as those in s. 73 of Bill 101. These criteria are not only specific, but are also unique as a whole; it

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may be wondered whether the framers of the Constitution would have drafted s. 23 of the Charter as they did if they had not had in view the model which s. 23 was indeed in large measure meant to override. In their memorandum, the individual respondents, after referring to the Quebec statutes on the language of instruction, add, and in substance, properly so:

Indeed, Sec. 23 was modelled on those laws, except that it provided somewhat broader rights. No other Canadian legislation bases children’s education on their parents’ in a geographic area.

By incorporating into the structure of s. 23 of the Charter the unique set of criteria in s. 73 of Bill 101, the framers of the Constitution identified the type of regime they wished to correct and on which they would base the remedy prescribed. The framers’ objective appears simple, and may readily be inferred from the concrete method used by them: to adopt a general rule guaranteeing the Francophone and Anglophone minorities in Canada an important part of the rights which the Anglophone minority in Quebec had enjoyed with respect to the language of instruction before Bill 101 was adopted.

If, as is apparent, Chapter VIII of Bill 101 is the prototype of regime which the framers of the Constitution wished to remedy by adopting s. 23 of the Charter, the limits which this regime imposes on rights involving the language of instruction, so far as they are inconsistent with s. 23 of the Charter, cannot possibly have been regarded by the framers of the Constitution as coming within “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Accordingly, the limits imposed by Chapter VIII of Bill 101 are not legitimate limits within the meaning of s. 1 of the Charter to the extent that the latter applies to s. 23.

In his submission, appellant wrote that the reasoning of Beauregard J.A. amounts to saying that s. 1 of the Charter does not apply to s. 23. With respect, we do not think this observation is correct. We think that Beauregard J.A. in fact says the opposite, when he writes:

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[TRANSLATION] It is true that, strictly speaking, the right guaranteed by s. 23 can be the subject of a limitation under s. 1.

…it is true that even if Chapter VIII denies the s. 23 right absolutely, there is nothing a priori to prevent s. 1 validating Chapter VIII.

Beauregard J.A. then wrote the passage cited at the beginning of these reasons. We interpret this passage to mean that the limits imposed by Chapter VIII of Bill 101 cannot be regarded as legitimate limits within the meaning of s. 1 of the Charter, since they are precisely the type of limit struck down by s. 23. However, Beauregard J.A. adds that it

[TRANSLATION] …is hard to see how a limit as absolute as that in Chapter VIII, whatever its legitimacy, could be regarded otherwise than as a prohibited invasion of this right.

Accordingly, in his opinion, limits less absolute than those in Chapter VIII of Bill 101 could be legitimized by s. 1 of the Charter.

It does not appear necessary to decide this last point, since the only limits we have to consider are those in Chapter VIII of Bill 101. In addition, we repeat that we have only assumed for the sake of discussion, without deciding the point, the truth of the proposition that s. 1 of the Charter applies to s. 23.

The reasons of Beauregard J.A., like those developed above, are based on a teleological interpretation of s. 23 of the Charter, that is to say, on a method of interpretation which looks to the purpose sought by the framers in drafting this section. Such an interpretation is possible because Bill 101 was adopted prior to the Charter: but it should be noted that, even without this argument, the result would be the same.

Let us assume that Chapter VIII of Bill 101 had been enacted after the Charter, or that a province other than Quebec were now to adopt an Act drafted like Chapter VIII of Bill 101, but designed to limit the right to instruction in French. Could it be said that s. 1 of the Charter is capable of

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legitimizing such legislation, to the extent that s. 1 applies to s. 23?

We do not think so.

Whatever their scope, the limits which s. 1 of the Charter allows to be placed on the rights and freedoms set out in it cannot be equated with exceptions such as those authorized by s. 33(1) and (2) of the Charter, which in any event do not authorize any exception to s. 23:

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

Nor can those limits be tantamount to amendments to the Constitution of Canada, the procedure for which is prescribed in ss. 38 et seq. of the Constitution Act, 1982.

Now, the real effect of s. 73 of Bill 101 is to make an exception to s. 23(1)(b) and (2) of the Charter in Quebec; yet those subsections are not provisions to which exceptions can be made under s. 33(1) and (2) of the Charter. In addition, s. 73 of Bill 101 directly alters the effect of s. 23 of the Charter for Quebec, without following the procedure laid down for amending the Constitution.

The rights stated in s. 23 of the Charter are guaranteed to very specific classes of persons. This specific classification lies at the very heart of the provision, since it is the means chosen by the framers to identify those entitled to the rights they intended to guarantee. In our opinion, a legislature cannot by an ordinary statute validly set aside the means so chosen by the framers and affect this classification. Still less can it remake the classification and redefine the classes.

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The following arguments made by the Attorney General of New Brunswick in his submission seem to us to be conclusive:

…Section 59 modifies the classes of parents entitled to have their children instructed in English by suspending the operation of paragraph 23(1)(a) in Quebec. By implication, the other classes of beneficiaries entitled to enjoy section 23 rights cannot be redefined by ordinary legislative enactment.

The detailed definition of classes of parents is at the heart of Section 23. Any effort to redefine the classes of parents entitled to educational rights effectively represents an attempt to amend the Constitution without resort to the amending formula and is accordingly not comprehended by section 1.

The Attorney General of Canada expresses the same idea in his memorandum, where he writes, after referring to s. 1 of the Charter.

[TRANSLATION] …it does not allow the categories of individuals who enjoy the right conferred by s. 23 to be altered by imposing different rules which run directly counter to those expressly stated in that section. The exception clause provided for in s. 33 does not cover s. 23, and the Canadian Charter of Rights and Freedoms can only be amended in accordance with the terms of the procedure for amending the Constitution contained in Part V of the Constitution Act, 1982.

As the Attorney General of Canada notes in his memorandum, s. 73 of Bill 101 constitutes exactly the kind of redefinition of the classes of persons protected by s. 23 of the Charter which is prohibited and invalid if undertaken by any means other than a constitutional amendment:

[TRANSLATION] Section 73 of the Charter of the French language does not limit the right conferred by s. 23: rather, it constitutes a permanent alteration of the classes of citizens who are entitled to the protection afforded by that section. By laying down conditions of access which run directly counter to those expressly stated in s. 23, and which by their very nature have the effect of permanently depriving an entire class of individuals of the right conferred by s. 23, s. 73 alters the very content of that right…

It goes without saying that in adopting s. 73 of Bill 101 the Quebec legislature did not intend, and could not have intended, to create an exception to s. 23 of the Charter or to amend it, since that section did not then exist; but its intent is not

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relevant. What matters is the effective nature and scope of s. 73 in light of the provisions of the Charter, whenever the section was enacted. If, because of the Charter, s. 73 could not be validly adopted today, it is clearly rendered of no force or effect by the Charter and this for the same reason, namely the direct conflict between s. 73 of Bill 101 and s. 23 of the Charter. The provisions of s. 73 of Bill 101 collide directly with those of s. 23 of the Charter, and are not limits which can be legitimized by s. 1 of the Charter. Such limits cannot be exceptions to the rights and freedoms guaranteed by the Charter nor amount to amendments of the Charter. An Act of Parliament or of a legislature which, for example, purported to impose the beliefs of a State religion would be in direct conflict with s. 2(a) of the Charter, which guarantees freedom of conscience and religion, and would have to be ruled of no force or effect without the necessity of even considering whether such legislation could be legitimized by s. 1. The same applies to Chapter VIII of Bill 101 in respect of s. 23 of the Charter.

This other method of interpretation, based on the true nature and effects of Chapter VIII of Bill 101 in light of the Charter provisions, takes an opposite route to that based on the purpose of the framers, but leads to the same result: Chapter VIII is of no force or effect.

For these reasons, we would answer “yes” to the first constitutional question stated by Chief Justice Laskin.

V—The other two constitutional questions

Respondents and the intervener argued that these two questions should be answered in the affirmative, whereas appellant argued that the Court should give no answer to them.

It will be recalled that in the judgment which he rendered on the first motion for a declaratory judgment, Deschênes C.J. answered in the affirmative the two questions cited above, which were practically identical to the two constitutional questions stated by Chief Justice Laskin. These questions were put to Deschênes C.J. by the respondents who were parties to the first motion. However,

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it is important to note the basis on which Deschênes C.J. answered in the affirmative. He explained his reasoning at p. 709 of his judgment as follows:

[TRANSLATION] At the hearing counsel for Quebec agreed that, if the petitioners’ application were to be allowed, then the laws in force would impose the obligations claimed in the first question on the school boards and would give them the right claimed in the second question of the petition.

Appellant argued that he had reasserted his position in the Court of Appeal, which did not discuss these questions; but, as it dismissed the appeal, it left standing the affirmative answers given by Deschênes C.J. as well as the basis on which those answers were given.

Appellant explained in his memorandum why, in his opinion, this Court should not answer the last two constitutional questions. After noting the basis on which Deschênes C.J. answered in the affirmative the two questions put to him by respondent applicants in the first motion for a declaratory judgment, he went on:

[TRANSLATION] 11. The Attorney General of Quebec repeats that if this Court answers the first constitutional question in the affirmative, the laws in effect in Quebec impose the obligation claimed in the second question and give them the right claimed in the third question. Accordingly, the facts of the case at bar cannot be a basis for such questions, since there is no issue respecting the points raised.

12. To the extent that, by means of these questions which correspond to some of the conclusions of the motions for a declaratory judgment, this Court is being urged to rule on the meaning of s. 23 of the Canadian Charter as it applies to respondent school boards, the Attorney General of Quebec submits that there is no basis for this Court to do so in the case at bar.

The Attorney General of Quebec respectfully submits that:

(1) it is not necessary in order to dispose of the appeal at bar to decide whether s. 23 of the Canadian Charter gives school boards the right claimed in the third question and imposes on them the obligation claimed in the second question, and that there-

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fore, this Court should not rule on the point (Citizens Insurance Co. of Canada v. Parsons, (1881-82) 7 App. Cas. 96, at 109; John Deere Plow Co. Ltd. v. Wharton, 1914 CanLII 603 (UK JCPC), [1915] A.C. 330, at 339);

(2) in any case the case is not ripe [for consideration], since the obligations and rights claimed depend on the application of s. 23(3) of the Canadian Charter, and that no argument or evidence was submitted to the trial court on the basis of which it could decide whether the conditions imposed by s. 23(3)(a) and (b) had been met.

The Quebec Association of Protestant School Boards, The Protestant School Board of Greater Montreal and the Lakeshore School Board answered appellant in their memorandum as follows:

12. Appellant, at paragraphs 8 to 15 of his Factum, contends that Questions 2 and 3 ought not to be answered on the basis that the rights and obligations which they seek to confirm are secured under existing Quebec law if the answer to Question 1 is in the affirmative.

13. At issue in this case however are the rights and obligations which flow from the Canadian Charter and it was to these rights and obligations, not those under Quebec law for the time being, that the Motion for Declaratory Judgment was addressed.

Finally, in their memorandum the individual respondents took the following position:

Before beginning their argument, Respondents observe that, while they agree with Appellant that the first of the three questions drafted following the obtaining of leave to appeal is the most important but they submit that all three should be answered in order that no further dispute arise from the application of Section 23 in Quebec.

We believe that appellant is right on this point. It is possible that the questions put in the first motion for a declaratory judgment can be interpreted as covering the rights and obligations resulting from the Charter rather than the rights and obligations resulting from the laws in effect in Quebec. However, this is not the basis on which the trial judge answered, and it can be assumed that, if he answered as he did on the basis of an admission by the Attorney General of Quebec as

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to the effect of the laws in force in Quebec, and not as if he had to answer constitutional questions, it was because the parties did not provide him with the means of answering on any other basis, in the evidence presented to him or the arguments which were made.

We consider that this Court should not answer these constitutional questions, on which we do not know the opinions of either the Court of Appeal or the trial judge. We are not even sure we could give an enlightened answer, if we wished to. We think it is significant in this respect that, even though respondents and the intervener argued that we should answer these two questions in the affirmative, they did not discuss either in their memoranda or orally any reasons of fact or law as to why the Court should answer in the affirmative.

The parties will have to content themselves with the two answers given by the trial judge on the basis used by him. His judgment has, on this basis, the force of res judicata.

VI—Conclusions

The first constitutional question is answered in the affirmative.

The other two constitutional questions are left unanswered.

The appeal is dismissed with costs. However, there will be no order as to costs for or against the Attorney General of Canada and the intervener.

Appeal dismissed with costs.

Solicitors for the appellant: Jean-K. Samson, Réal A. Forest and André Binette, Sainte-Foy.

Solicitors for respondents Quebec Association of Protestant School Boards, The Protestant School Board of Greater Montreal and Lakeshore School Board: Clarkson, Tétrault, Montréal.

Solicitor for respondents Marlene Orman, Chi Sum Mak, Sharon Lynn Toma, Helena Wong‑Woo, Hardeep Walia, Kee Chor Fong and Savitaben Patel: Julius Grey, Montréal.

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Solicitors for respondent the Attorney General of Canada: Langlois, Drouin & Associés, Montréal.

Solicitors for the intervener the Attorney General for New Brunswick: Gowling & Henderson, Ottawa.

¹ 1983 CanLII 2843 (QC CA), [1983] C.A. 77, 1 D.L.R. (4th) 573, 7 C.R.R. 139; C.A. Mtl., No. 500-09-001280-825, No. 500-09-001281-823, No. 500-09-001282-821, No. 500-09-001283-829, June 9, 1983.

² 1982 CanLII 3268 (QC CS), [1982] C.S. 673, 140 D.L.R. (3d) 33, 3 C.R.R. 114; C.S. Mtl., No. 500-05-007361-825, No. 500-05-007362-823, No. 500-05-008960-823, No. 500-05-009572-825, September 8, 1982.