Quebec Court of Appeal nixes children’s access to English schools

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In a ruling that deftly circumvented the politically sensitive issue surrounding Quebec’s controversial language law while underlining the need to respect the “boundaries” established by the nation’s highest court, the Quebec Court of Appeal overturned a lower court judgment that would have temporarily allowed ten private-school students from pursuing their studies at English-language schools.

In an 11-page ruling rendered just two days after Quebec Superior Court granted a safeguard order that allowed the children of nine families to attend government-subsidized English schools until an administrative tribunal ruled on whether they have the right to do so, Appeal Court Justice Pierre Dalphond held that granting the students an exemption would not be in the public interest because it could lead to “serious problems” on the eve of the new school year.

The parents sought English school eligibility certificates three years ago but were turned down under provisions of Bill 104 (An Act to amend the Charter of the French language), which was passed in 2002 to close down a loophole that enabled parents who sent their children to unsubsidized private English schools for short periods to subsequently register them in Quebec’s public English-language system. The parents appealed to the Administrative Tribunal of Québec, but were denied a hearing because Bill 104 was being contested before the Quebec Court of Appeal and then the Supreme Court of Canada.

On October 2009, the SCC in Nguyen v. Quebec (Education, Recreation and Sports), 2009 SCC 47 upheld the Quebec Court of Appeal’s decision to strike down paragraphs 2 and 3 of s. 73 of Bill 104 for breaching section 23 of the Canadian Charter of Rights and Freedoms. “Because of the difficulties this declaration of invalidity may entail,” the SCC suspended its judgment for a year in order to give the Quebec government time to draft a new law. Last June the Quebec government tabled a new bill,  which will tighten the rules for students seeking to transfer to English schools, to comply with the SCC’s ruling. Bill 103 is expected to come into force on October 22.

The parents returned to the administrative tribunal early this year, which “rejected the demands of the parents without analyzing the situation of their children and the nature of their alleged hardship,” noted Justice Dalphond. The parents then turned to Quebec Superior Court, seeking leave for their children to continue at the schools they had attended, at least until they could be evaluated by the new criteria set out in the forthcoming Bill 103.

Besides asserting that the constitutional rights of their children were being violated by Bill 104, the parents argued that denying their children leave to continue their education at the schools they had attended was prejudicial, said Frédéric Massé, a Montreal lawyer with Heenan Blaikie who represented the parents.

“The whole question was whether or not during the stay granted by the Supreme Court judgment the government was given liberty to violate the rights of its citizens,” said Massé. “We were of the position that the relevant sections of the Charter of the French language were still in effect but that we still had the right to challenge them because we still had the benefit of our constitutional rights.”

But Justice Dalphond was not swayed, finding that though parts of Bill 104 were struck down by the SCC ruling, the suspension of the judgment means that the law remains in effect until the one-year deadline to amend the law elapses.

“The rights of parents to a constitutional exemption over the application of paragraph 2 et al of s.73 of the Charter of the French language during the year that the Quebec Parliament was granted to correct the situation is not clear, far from it,” said Justice Dalphond. “The suspension of the declaration of invalidity of paragraph 2 al of s.73 for a year sought to prevent these kinds of demands up until October 2010.”

After conducting a brief analysis of the balance of convenience, Judge Dalphond also found that there “is no doubt” granting the students an exemption would cause serious harm to the government and society. Dozens, if not hundreds of parents, added Justice Dalphond, would try to bypass the SCC ruling. While it may be true that changing schools could represent hardship for the students at hand, Justice Dalphond said that it is “relative” since that is the fate that thousands of Quebec school children face annually without serious difficulty when they go from an elementary to a high school.

“It is clear that the public interest here prevails over the alleged hardship of the children,” concluded Justice Dalphond.

According to Stéphane Beaulac, a Université de Montréal law professor who teaches public international law and statutory interpretation, the ruling by Quebec Court of Appeal is very well-founded, if not “bullet-proof.”

“Substantively, the ruling is important because it prevents short-cuts from being taken before the government passes Bill 103,” said Beaulac, who was a law clerk with former Madam Justice Claire L’Heureux-Dubé. “The court recognizes that a decision cannot be made before decisions are taken by the proper forum according to the proper rules that are in the process of being established, as is the case with Bill 103.

“But more broadly, the ruling is important in terms of process. It confirms the importance of following the spirit of the Supreme Court’s decision. When the SCC suspends its ruling for 12 months, it is 12 months.”

This story was originally published in The Lawyers Weekly.

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