Nguyen v. Quebec
| Nguyen v Quebec (Education, Recreation and Sports) | |
|---|---|
| Court | Supreme Court of Canada |
| Decided | October 22, 2009 |
| Citation(s) | 2009 SCC 47; [2009] 3 SCR 208 |
| Holding | |
| Quebec cannot automatically exclude attendance at a non-subsidized English school assessing whether a student is eligible for subsidized English schooling. The government must conduct a comprehensive analysis of the child's educational background. Quebec must also preserve family unity as provided for in the Charter if it grants additional language rights. | |
| Court membership | |
| Judge(s) sitting | Beverley McLachlin, Ian Binnie, Louis LeBel, Morris Fish, Rosalie Abella, Louise Charron, Marshall Rothstein |
| Keywords | |
| Charter of the French Language — language of instruction — section 23 of the Canadian Charter of Rights and Freedoms — minority language education rights | |
Nguyen v Quebec (Education, Recreation and Sports), 2009 SCC 47, is a decision of the Supreme Court of Canada concerning the Charter of the French Language in Quebec.
The Court heard two appeals jointly: one involving a group of several claims, represented by Nguyen, and another concerning the Bindra family's claim regarding the eligibility of siblings under section 85.1 of the Charter.
Background
The Nguyen decision follows various challenges to the Act to amend the Charter of the French Language (commonly known as "Bill 104"). This Act, passed by the Quebec government in 2002, amended the sections of Charter of the French Language relating to the language of instruction at the primary and secondary levels.
In general, the Charter of the French Language provides that the language of instruction in Quebec is French, except for the English-speaking minority, which has access to English-language education. The Charter implements section 23 of the Canadian Charter of Rights and Freedoms. Section 23 requires Quebec to provide public education in English when:
- the child's parent received their primary education in English;.[1]
- the child has received his or her primary or secondary education in English;[2]
- the child has a sibling who is receiving his or her education in English[2]
Quebec's Charter of the French Language specifies this obligation by requiring parents or children to ensure that this education constitutes the "majority" of their primary or secondary education[3]. This clarification prevents anyone who briefly attended English-language school from benefiting (for themselves and their children) from access to English-language schooling.
The changes introduced by Bill 104 therefore concerned the calculation of this "majority". Since access to non-subsidized English schools was not affected by the Charter of the French Language, some parents sent their children to non-subsidized English school for a short period at the start of primary school, and these children thus spent the "majority" of their education in English. Bill 104 simply excluded a transfer to a non-subsidized English school from the calculation of the "major part".
The other contested amendment to Bill 104 is the one that would deny admission to subsidized English schools to siblings of children admitted to such schools on humanitarian grounds. The Charter of the French Language allows the Minister of Education to grant access to subsidized English schools to someone who would not normally have access, on humanitarian grounds. Bill 104 made it clear, however, that this authorization did not allow the siblings of that child to also have access to subsidized English schools.[4]
Cases at issue
The first challenge came from a group of students who had attended the non-subsidized English school and were denied access to the subsidized school, either for themselves or for their siblings. Since Bill 104 excluded attendance at the non-subsidized English school from the calculation of the “majority”,[5] these children could not claim access to the subsidized English school. The group's representative, Hong Ha Nguyen, had only spent a few weeks at the non-subsidized English school.[6].
The second challenge comes from Talwinder Bindra. His daughter Jessica, had been granted admitted to the subsidized English school on humanitarian grounds.[7]. The family challenges the fact that Bill 104 did not allow her brother, Satbir, to also attend the English school.
Legal history
Nguyen
The Administrative Tribunal of Quebec (TAQ) rejects their interpretation of section 23. It does not reflect its true nature, allows a right to be commodified, and allows section 23(1) to be enforced without consent.[8].
In the Quebec Superior Court, the Quebec Court of Appeal's decision in Solski was cited, as the Supreme Court of Canada had not yet rendered its decision in that case.[9].
The Quebec Court of Appeal delivered a divided judgment. Dalphond and Hilton consider that it is unconstitutional because it does not comply with the quality assessment provided for in the Solsky decision. The right of children to receive education in their language, as provided for in section 23, would be infringed. And this is not saved by section 1[10].
Justice Giroux dissented, arguing that section 23 should be analyzed differently in Quebec than in the rest of Canada.[10]
Bindra
Both the TAQ and the Quebec Superior Court held that section 23(2) of the Charter does not apply to children with no connection to the English-speaking minority[11].Furthermore, humanitarian grounds are additional rights.[12].
The Court of Appeal overturned judgments based on Solski, ruling that the student's actual background must be assessed and that exclusion should not be automatic.[13]
Decision of the Supreme Court
Compatibility of Bill 104 with section 23
The Supreme Court rules that the amendments to Bill 104 violate section 23 of the Canadian Charter of Rights and Freedoms. The Court finds that by never taking into account a transfer to a non-subsidized English school, the Quebec government is not fully complying with its constitutional obligation to provide access to English schools for members of the English-speaking minority.
{{quote|The inability to fully assess a child's educational background in order to determine the extent of their educational language rights has the effect of distorting reality, creating a fictitious educational background that cannot be properly examined to apply constitutional protections. In the Solski decision, our Court clarified that the child's overall educational background must be taken into account in determining whether he or she meets the requirements of s. 23(2) of the Canadian Charter. To remove an entire part of the educational background from the analysis, because of the nature or origin of the education received, does not allow for the overall analysis of the child's situation and educational background required by the Solski decision.[14]
The Court's decision is mainly based on the Solski v. Quebec ruling it made in 2005. In that decision, the Supreme Court ruled that the Quebec government had to look at a kid's whole educational background, in quantitative and qualitative terms, to decide whether they should have access to subsidized English-language schools. By limiting its consideration of the child's educational background to non-subsidized private schools, the Court ruled that the Quebec government was not complying with section 23 of the Canadian Charter of Rights and Freedoms.[15]
Nevertheless, the Court does not endorse the practice of some parents sending their children to non-subsidized English schools for a few weeks in order to automatically qualify for subsidized schools.
{{quote|So-called ‘bridge’ schools sometimes appear to be institutions created for the sole purpose of artificially qualifying children for admission to the publicly funded English-language education system. When schools are established primarily to facilitate the transfer of students who are not eligible for the publicly funded English-language system, and their teaching serves, in effect, to achieve this transfer, it cannot be said that this constitutes an authentic educational pathway.[16]
Accordingly, the Court would like the Quebec government to find a mechanism that allows it to assess, on a case-by-case basis, whether an individual has a genuine background that qualifies them for subsidized English-language schooling.
The Court also ruled that the government has a duty to respect the principle of family unity set out in section 23(2) when granting additional rights of access to subsidized English-language schools[17].Therefore, even if the government were not obliged to grant exceptions on humanitarian grounds, considering that it does so, it must respect the principle of family unity and allow siblings to attend English-language schools as well.
The decision is suspended for one year to allow the government to find a solution.[18]
The justification for the limitation under section 1 of the Charter
The Quebec government attempted to justify this infringement of section 23 of the Canadian Charter of Rights and Freedoms. Section 1 of the Charter allows certain infringements when they are justified “within reasonable limits that can be demonstrated in a free and democratic society"[19]. Certain criteria have been developed in previous Court decisions to determine what constitutes sufficient justification (see Oakes Test). In analyzing these criteria, the Court recognizes that the objective of protecting the French language in Quebec is a legitimate one.[20]. The Court also recognized that there is a link between the objective of the measure (protecting the French language) and the means (restricting access to education). According to the Court, education is a good means of promoting the development of French[21].
However, the Court does not allow the infringement under section 1, since, in its view, the means used to achieve the objective does not infringe constitutional rights in a minimal way. In order to justify an infringement of rights, the government should have used a more appropriate means than systematically excluding English school attendance from the calculation[22].
Political impact
The political impacts extend beyond language policy aimed at ensuring the survival and development of the French language. Bill 104 had been passed unanimously by the National Assembly of Quebec. The group of challenges brought together more than 20 young students who were recent immigrants. According to the ethnolinguistic profile provided by the Ministry of Immigration, these students show little integration into Francophone society. The ruling would therefore indirectly call into question integration policy and even the methods used to select new arrivals, since positive integration is primarily the responsibility of new immigrants.[23]
See also
References
- ↑ "Canadian Charter of Rights and Freedoms, s 23(1)(a)". Department of Justice Canada.
- ↑ 2.0 2.1 "Canadian Charter of Rights and Freedoms, s 23(2)". Department of Justice Canada.
- ↑ "Charte de la langue française, s 73". Publications du Québec.
- ↑ "Charte de la langue française, s 73(3)". Publications du Québec.
- ↑ "Charte de la langue française, s 73(2)". Publications du Québec.
- ↑ Nguyen v. Quebec[dead link], paragraph 9
- ↑ Nguyen v. Quebec[dead link], paragraph 10
- ↑ Nguyen v. Quebec[dead link], paragraph 13
- ↑ Nguyen v. Quebec[dead link], paragraph 14
- ↑ 10.0 10.1 Nguyen v. Quebec[dead link], paragraph 15 Cite error: Invalid
<ref>tag; name "m15" defined multiple times with different content - ↑ Nguyen v. Quebec[dead link],paragraph 16-17
- ↑ Nguyen v. Quebec[dead link], paragraph 17
- ↑ Nguyen v. Quebec[dead link], paragraph 18-19
- ↑ Nguyen v. Quebec[dead link], paragraph 33
- ↑ Nguyen v. Quebec[dead link], paragraph 31-33
- ↑ Nguyen v. Quebec[dead link], paragraph 36
- ↑ Nguyen v. Quebec[dead link],paragraph 45
- ↑ Nguyen v. Quebec[dead link], paragraph 46-51
- ↑ "Charte canadienne des droits et libertés, article 1" [Canadian Charter of Rights and Freedoms, s. 1] (in français). Government of Canada. Retrieved 9 December 2025.
- ↑ Nguyen v. Quebec[dead link], paragraph 38
- ↑ Nguyen v. Quebec[dead link], paragraph 40
- ↑ Nguyen v. Quebec[dead link], paragraph 41-42
- ↑ "Portrait ethnoculturel des personnes recensées au Québec" [Ethnocultural portrait of persons counted in Quebec] (PDF) (in français). Ministère de l'Immigration et des Communautés culturelles. 2009. Archived from the original (PDF) on 4 March 2016. Retrieved 9 December 2025. Unknown parameter
|url-status=ignored (help)
External links
- Texte intégral du jugement Archived 2010-01-09 at the Wayback Machine
This article "Nguyen v. Quebec" is from Wikipedia. The list of its authors can be seen in its historical and/or the page Edithistory:Nguyen v. Quebec. Articles copied from Draft Namespace on Wikipedia could be seen on the Draft Namespace of Wikipedia and not main one.
