Gosselin (Tutor of) v. Quebec (Attorney General, Supreme Court of Canada )

Summary

Section 73 of the Charter of the French language provides access to English language schools in Quebec only to children who have received or are receiving English language instruction in Canada or whose parents studied in English in Canada at the primary level. The appellant parents, who do not qualify as rights holders under s. 73 or under s. 23 of the Canadian Charter of Rights and Freedoms, claim that s. 73 discriminates between children who qualify and the majority of French-speaking Quebec children who do not, and violates the right to equality guaranteed at ss. 10 and 12 of the Quebec Charter of Human Rights and Freedoms. Equality requires, the appellants argue, that all children in Quebec be given access to publicly funded English language education. Both the Superior Court and the Court of Appeal dismissed their claims.

The Supreme Court of Canada dismissed their claim. Since the appellants are members of the French language majority in Quebec, their objective in having their children educated in English simply does not fall within the purpose of s. 23 of the Canadian Charter. The purpose of s. 73 is not to “exclude” entire categories of children from a public service, but rather to implement the positive constitutional responsibility incumbent upon all provinces to offer minority language instruction to its minority language community. In seeking to use the right to equality to access a right guaranteed in Quebec only to the English language minority, the appellants put aside the linkage between s. 73 of the Charter of the French language and s. 23 of the Canadian Charter, and attempt to modify the categories of rights holders under s. 23. This is not permissible. Section 23 provides a comprehensive code for minority language education rights and achieves its purpose of protecting and promoting the minority language community in each province by helping to bring about the conditions under which the English community in Quebec and the French communities of the other provinces can flourish.

Section 73 of Quebec’s Charter of the French Language, which is simply a statute, and not part of the constitution, delineates who qualifies to receive education in English in Quebec.

Section 10 of the Quebec Charter of Human Rights and Freedoms has an anti-discriminatory provision on the basis of language.
The appellants were trying to argue that Section 73 must comply with the equality guarantees of the Quebec Charter of Human Rights, like any other statute.

The court pointed out that the appellants were ignoring the link between Section 73 of Quebec’s Charter and Section 23 of the Canadian Charter of Rights and Freedoms, which IS part of the Canadian constitution. Section 23 (below) grants linguistic minorities the right to be educated in English or French if they fit certain criteria.

Court decision

“The linkage is fundamental to an understanding of the constitutional issue. Otherwise, for example, any legislation under s. 91(24) of the Constitution Act, 1867 (“Indians, and Lands reserved for the Indians”) would be vulnerable to attack as race-based inequality, and denominational school legislation could be pried loose from its constitutional base and attacked on the ground of religious discrimination. Such an approach would, in effect, nullify any exercise of the constitutional power”

Therefore, the purpose of section 73 was simply to implement the positive constitutional responsibility incumbent upon all provinces to offer minority language instruction to its minority language community, and hence it was not vulnerable to the attack that the appellants were using.