Nguyen et al. v. Quebec (Minister of Education, Recreation and Sports), (2009) 394 N.R. 255 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 15, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2009), 394 N.R. 255 (SCC);2009 SCC 47

Nguyen v. Que. (2009), 394 N.R. 255 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.R. TBEd. OC.058

Minister of Education, Recreation and Sports and Attorney General of Quebec (appellants/respondents on cross-appeal) v. Hong Ha Nguyen, Audrey Smith, Parthasarothi Dey, Kazal Das, Dipinkar Dhar, Abu Taher, Sashitharan Nadarajah, Rajendra Carpanen, Ginette Bégin, Mohan Shikder, Thi Thu Hang Nguyen, Iqbal Khan, Yuk-Kwong Tiu, Shafik Ayad, Mumtaz Hussain Khan, Kim Sreang Lech, Keav Jennifer Taing, Parminder Kaur Miranpuri, Fucheng Ye, Lian Ye, Annie Laurin, Talwinder Bindra, Virender Singh Jamwal, Gilberte Dorméus, Rafed Mustafa and Danny Lok (respondents/appellants on cross-appeal) and Attorney General of Canada, Administrative Tribunal of Québec, Quebec Association of Independent Schools, Commission scolaire francophone, Territoires du Nord-Ouest, Quebec English School Boards Association, Quebec Provincial Association of Teachers, Association franco-ontarienne des conseils scolaires catholiques and Commissioner of Official Languages for Canada (intervenors)

Minister of Education, Recreation and Sports and Attorney General of Quebec (appellants/respondents on cross-appeal) v. Talwinder Bindra (respondent/appellant on cross-appeal) and Attorney General of Canada, Administrative Tribunal of Québec, Quebec English School Boards Association, Commissioner of Official Languages for Canada and Quebec Association of Independent Schools (intervenors)

(32229; 32319; 2009 SCC 47; 2009 CSC 47)

Indexed As: Nguyen et al. v. Quebec (Minister of Education, Recreation and Sports)

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Fish, Abella, Charron and Rothstein, JJ.

October 22, 2009.

Summary:

The Nguyens and others (the Nguyens), who were residents of Quebec, registered their children in unsubsidized private schools which provided instruction in English. They then applied to the Minister of Education, Recreation and Sports for certificates of eligibility to instruction in English in the public system. Their application was denied on the basis of s. 73, para. 2 of the Charter of the French language (Que.) (CFL) which provided that instruction received by the child "in a private educational institution not accredited for the purposes of subsidies" had to be disregarded for the purposes of entitlement to instruction in English in the public system. They appealed, arguing that s. 73, para. 2 of the CFL violated s. 23(2) of the Canadian Charter of Rights and Freedoms, which provided that "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."

The Administrative Tribunal of Québec, in a decision reported [2003] T.A.Q. 975, dismissed the appeal. The Nguyens applied for judicial review.

The Quebec Superior Court, in a decision reported SOQUIJ AZ-50264496; 2007 CarswellQue 7186, dismissed the application. The Nguyens appealed.

The Quebec Court of Appeal, Giroux, J.A., dissenting, in a decision reported [2007] R.J.Q. 2097; SOQUIJ AZ-50447557; 2007 QCCA 1111, allowed the appeal. The court ordered that the files be returned to the designated person under the CFL to be assessed in light of the qualitative factors established by the Supreme Court of Canada in Solski v. Quebec (Attorney General) (2005), 331 N.R. 256. The Minister appealed. The Nguyens cross-appealed in respect of incidental issues.

The Bindras, also residents of Quebec, registered their children Jessica and Satbir in unsubsidized private schools which provided instruction in English. Eventually, the Minister granted Jessica a special authorization under s. 85.1 of the CFL to receive instruction in English in the public system. The Bindras then invoked s. 23(2) of the Canadian Charter of Rights and Freedoms and applied to the Minister of Education, Recreation and Sports for a certificate of eligibility allowing Satbir to receive instruction in English in the public system. Their application was denied on the basis of s. 73, para. 3 of the Charter of the French language (Que.) which provided that instruction received by the child "pursuant to a special authorization under section 81, 85 or 85.1" had to be disregarded for the purposes of entitlement to instruction in English in the public system. The Bindras appealed, arguing that s. 73, para. 3 of the CFL violated s. 23(2) of the Canadian Charter of Rights and Freedoms.

The Administrative Tribunal of Quebec, in a decision reported [2004] T.A.Q. 198, dismissed the appeal. The Bindras applied for judicial review.

The Quebec Superior Court, in a decision reported [2005] R.J.Q. 1039; SOQUIJ AZ-50288298; 2004 CarswellQue 10173, dismissed the application. The Bindras appealed.

The Quebec Court of Appeal, in a decision reported [2007] R.J.Q. 2150; SOQUIJ AZ-50447558; 2007 CarswellQue 7679, allowed the appeal. The court ordered that the file be returned to the person designated by the Minister of Education to immediately issue a certificate of eligibility for Satbir Bindra. The Minister appealed. The Bindras cross-appealed in respect of incidental issues.

The Supreme Court of Canada, after hearing the appeals and the cross-appeals together, dismissed them. The court declared s. 73, paras. 2 and 3 of the CFL unconstitutional as violating s. 23(2) of the Canadian Charter of Rights and Freedoms and not saved by s. 1. The court suspended execution of its judgment for one year, to allow the Quebec National Assembly to rectify its legislation. Nevertheless, the court gave effect to the orders of the Quebec Court of Appeal for (1) the return of the Nguyen files to the designated person under the CFL to be assessed in light of the qualitative factors established by the Supreme Court of Canada in Solski, and (2) the return of the Bindra file to the designated person for the immediate issuance of a certificate of eligibility.

Civil Rights - Topic 2885

Language - Education - Minority language education rights - When applicable - Section 73, para. 2 of the Charter of the French language (Que.) (CFL) provided that instruction received by the child "in a private educational institution not accredited for the purposes of subsidies" had to be disregarded for the purposes of entitlement to instruction in English in the public system - Section 73, para. 3 of the CFL provided that instruction received by the child "pursuant to a special authorization under section 81, 85 or 85.1" had to be disregarded for the purposes of entitlement to instruction in English in the public system - Section 23(2) of the Canadian Charter of Rights and Freedoms (CCRF) provided that "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" - The Supreme Court of Canada declared that s. 73, paras. 2 and 3 of the CFL violated s. 23(2) of the CCRF where they prevented a comprehensive analysis of the educational pathways of children whose parents wished to avail themselves of the constitutional guarantees - In addition s. 73, paras. 2 and 3 of the CFL, were not saved under s. 1 of the CCRF - Section 73, para. 2 seemed excessive given the small number of persons affected, the degree of seriousness of the problem, and its impact on the school clientele and, potentially, on the situation of the French language in Quebec - As for s. 73, para. 3, the measure seemed excessive given the small numbers affected and its inconsistency with the principle of preserving family unity provided for in s. 23(2) of the CCRF. - See paragraphs 21 to 45.

Civil Rights - Topic 2894

Language - Education - In French or English - [See Civil Rights - Topic 2885 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 2885 ].

Cases Noticed:

Quebec Association of Protestant School Boards et al. v. Quebec (Attorney General), [1984] 2 S.C.R. 66; 54 N.R. 196, refd to. [para. 4].

Solski v. Quebec (Attorney General), [2005] 1 S.C.R. 201; 331 N.R. 256; 2005 SCC 14, appld. [para. 12].

Mahé, Martel, Dubé and Association de l'École Georges et Julia Bugnet v. Alberta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321, refd to. [para. 25].

Arsenault-Cameron et al. v. Prince Edward Island, [2000] 1 S.C.R. 3; 249 N.R. 140; 184 Nfld. & P.E.I.R. 44; 599 A.P.R. 44; 2000 SCC 1, refd to. [para. 25].

Reference Re Public Schools Act (Man.), [1993] 1 S.C.R. 839; 149 N.R. 241; 83 Man.R.(2d) 241; 36 W.A.C. 241, refd to. [para. 26].

Gosselin v. Quebec (Attorney General), [2005] 1 S.C.R. 238; 331 N.R. 337; 2005 SCC 15, refd to. [para. 26].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311; 2003 SCC 62, refd to. [para. 26].

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69, refd to. [para. 26].

Ford v. Québec (Procureur général) - see Chaussure Brown's Inc. et al. v. Québec (Procureur général).

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, appld. [para. 37].

Banque canadienne impériale de commerce v. Aztec Iron Corp., [1978] R.P. 385 (Que. Sup. Ct.), consd. [para. 48].

JTI MacDonald Corp. v. Canada (Procureur général), [2009] R.J.Q. 261; 2009 QCCA 110, refd to. [para. 48].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 23(2) [para. 21].

Charter of the French Language, R.S.Q. 1977, c. C-11, sect. 72 [para. 6]; sect. 73(2), sect. 73(3) [para. 3].

Authors and Works Noticed:

Bastarache, Michel, Introduction, in Bastarache, Michel, Language Rights in Canada (2nd Ed. 2004), pp. 6, 7 [para. 23].

Bastarache, Michel, Language Rights in Canada (2nd Ed. 2004), pp. 6, 7 [para. 23].

Beaudoin, Gérald-A., and Mendes, Errol P., The Canadian Charter of Rights and Freedoms (4th Ed. 2005), pp. 1102, 1103 [para. 23].

Ferland, Denis, and Emery, Benoît, Précis de procédure civile du Québec (4th Ed. 2003), vol. 1, pp. 725 to 730 [para. 48].

Power, Mark, and Foucher, Pierre, Language Rights and Education, in Beaudoin, Gérald- A., and Mendes, Errol P., The Canadian Charter of Rights and Freedoms (4th Ed. 2005), pp. 1102, 1103 [para. 23].

Québec, Office québécois de la langue française, Rapport sur l'évolution de la situation linguistique au Québec, 2002-2007 (2008), pp. 47 [para. 39]; 82 [para. 42]; 90 [para. 45].

Counsel:

Benoît Belleau, Francis Demers, Dominique A. Jobin and Françoise Saint-Martin, for the appellants/respondents on cross-appeals;

Brent D. Tyler and Marie-France Major, for the respondents/appellants on cross-appeals;

Claude Joyal and Bernard Letarte, for the intervenor, the Attorney General of Canada;

No one appeared for the intervenor, the Administrative Tribunal of Québec;

Ronald F. Caza and Mark C. Power, for the intervenor, the Quebec Association of Independent Schools;

Roger J.F. Lepage, for the intervenor, Commission scolaire francophone, Territoires du Nord-Ouest;

Michael N. Bergman, for the intervenor, the Quebec English School Boards Association;

Guy Dufort, Thomas Brady and Sacha Liben, for the intervenor, the Quebec Provincial Association of Teachers;

Claire Vachon, Mark C. Power and Christian F. Paquette, for the intervenor, Association franco-ontarienne des conseils scolaires catholiques;

Pascale Giguère and Kevin Shaar, for the intervenor, the Commissioner of Official Languages for Canada.

Solicitors of Record :

Bernard, Roy & Associés, Montreal, Quebec, for the appellants/respondents on cross-appeals;

Brent D. Tyler, Montreal, Quebec, for the respondents/appellants on cross-appeals;

Attorney General of Canada, Montreal, Quebec, for the intervenor, the Attorney General of Canada;

Morel, Lemieux, Montreal, Quebec, for the intervenor, the Administrative Tribunal of Quebec;

Heenan Blaikie, Ottawa, Ontario, for the intervenors, the Quebec Association of Independent Schools and the Quebec Provincial Association of Teachers;

Balfour Moss, Regina, Saskatchewan, for the intervenor, Commission scolaire francophone, Territoires du Nord-Ouest;

Bergman & Associés, Montreal, Quebec, for the intervenor, the Quebec English School Boards Association;

Heenan Blaikie, Toronto, Ontario, for the intervenor, Association franco-ontarienne des conseils scolaires catholiques;

Commissioner of Official Languages for Canada, Ottawa, Ontario, for the intervenor, the Commissioner of Official Languages for Canada.

This appeal and these cross-appeals were heard on December 15, 2008, by McLachlin, C.J.C., Binnie, LeBel, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada. The following decision of the Supreme Court was delivered in both official languages by LeBel, J., on October 22, 2009.