Can the Notwithstanding Clause override Section 23 of the Canadian Charter of Rights and Freedoms?

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1 A legal opinion prepared for: the Quebec English School Boards Association on The notwithstanding clause and constitutionally-guaranteed minority-language rights: Can the Notwithstanding Clause override Section 23 of the Canadian Charter of Rights and Freedoms? Michael N. Bergman Sean Bernstein Bergman & Associates, Lawyers Research Assistant to 2000 McGill College Mr. Bergman Mezzanine 200 McGill University Montreal, Quebec Faculty of Law/Management H3A 3H3 B.C.L./LL.B., M.B.A. Candidate Office: (514) Fax: (514) October 2010

2 Abstract In Nguyen v. Quebec the Supreme Court of Canada rendered a one-year suspended declaration of invalidity on Bill 104. The Quebec government has since responded with Bill 103 (subsequently replaced by Bill 115 on October 19, 2010), which deals with minority-language education rights under section 23 of the Canadian Charter of Rights and Freedoms. Numerous members of the Quebec National Assembly have repeatedly stated their intention to either re-introduce Bill 104 or make it more stringent, and implement the law using the notwithstanding clause. On a much broader level, however, the legal question becomes whether the notwithstanding clause can be used on legislation which falls under section 23 of the Charter? Section 33 (the notwithstanding clause) was enacted as a Charter provision as a result of political compromise. It has been used sparingly since 1982 and it is because of this infrequent use that the reach of Section 33 has not been defined. Nevertheless, it would seem evident to us that section 23 rights are off limits from the notwithstanding clause for three reasons: - First, the framers of the Constitution never intended to have minority-language education rights overridden, as section 23 was purposely omitted from Section 33.(1) of the Charter. - Second, to characterize Bill 104 under anything but section 23 would create a Charter provision hierarchy, something which is not allowed. - Third, the purpose and effect of the notwithstanding clause are to limit rights, not outright deny them. Certain arguments buttress the plan to implement Bill 104 using Section 33, but they are weak at best. First, the infrequent examples of recourse to Section 33 since its inception make the limits of this Charter provision ambiguous, rendering its exact use unclear. Second, while there has been deference granted by the Supreme Court to the Quebec government in the past on issues dealing with language rights, allowing the Quebec government to use Section 33 in such a way would call into question the past 30 years of jurisprudence relating to Canadian language law. -2-

3 The notwithstanding clause and constitutionally-guaranteed minority-language rights: Can the Notwithstanding Clause override Section 23 of the Canadian Charter of Rights and Freedoms? Introduction: In 2009, the Supreme Court of Canada rendered its most recent decision on Canadian minority-language education rights in the case of Nguyen v. Quebec. The unanimous Court ruling held that while the objectives of the measures 1 of the Quebec legislature in Bill 104 (an Act to Amend the Charter of the French Language) were sufficiently important to justify a limit on guaranteed rights, the means chosen were not proportional to the objectives. 2 As a result, sections 73(2) and 73(3) of Bill 104 were declared unconstitutional. The Court in the abovementioned case rendered a one-year suspended declaration of invalidity, granting the Quebec Legislature the opportunity to review and refine the unconstitutional legislation. The Quebec government responded by drafting Bill 103, a further amendment to the Charter of the French Language. On October 19, 2010, the clause expressing the primacy of the French language in Quebec was removed. Bill 103 has thus become Bill 115. The constitutionality of Bill 115 is yet to be determined. However, there remains the possibility that in the future, the Quebec Legislature may try to re-introduce Bill 104 (or modify it with even more stringent guidelines) by means of the notwithstanding clause, Section 33 of the Canadian Charter of Rights and Freedoms. This paper will try to answer the following legal question: Is it possible for any government (be it federal or provincial) to use Section 33 on legislation which relates to minority-language education rights? To answer this question, an in-depth analysis of Section 33 of the Canadian Charter of Rights and Freedoms will be undertaken, followed by an examination of relevant jurisprudence and doctrinal writings and how they relate to Bill 104. It is the goal of this paper to deduce from a legal standpoint the ability of the Quebec government to push through Bill 104, or a similar facsimile, using Section 33. Relevant Legislation: Section 33 of the Canadian Charter of Rights and Freedoms reads as follows: 1 Nguyen v. Quebec, 2009 SCC 47, [2009] 3 S.C.R. 208 at page 5, [Nguyen] 2 Nguyen, Ibid. at par

4 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 in section 2 or sections 7-15 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. (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or the Legislature of a province may re-enact a declaration made under subsection (1). (5) Subsection (3) applies in respect of a re-enactment made under subsection (4). Section 23 of the Canadian Charter of Rights and Freedoms reads as follows: 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 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. Section 2 of the Canadian Charter of Rights and Freedoms reads as follows: 2. Every one has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media communication; -4-

5 (c) (d) freedom of peaceful assembly; and freedom of association. Bill 104 (An Act to Amend the Charter of the French Language): 3. Section 73 of the said Charter is amended by adding the following paragraphs at the end : However, instruction in English received in Québec in a private educational institution not accredited for the purposes of subsidies by the child for whom the request is made, or by a brother or sister of the child, shall be disregarded. The same applies to instruction in English received in Québec in such an institution after (insert here the date of coming into force of this section) by the father or mother of the child. Instruction in English received pursuant to a special authorization under section 81, 85 or 85.1 shall also be disregarded. An Analysis of Section 33 of the Canadian Charter of Rights and Freedoms: An understanding of the history of the patriation of the Canadian Constitution in the early 1980s is essential to understanding the use, purpose and effect of Section 33. Section 33, often referred to as the notwithstanding clause or legislative override, came about as a result of intense political negotiation between the provinces and the federal government regarding the entrenchment of the Charter of Rights and Freedoms in the Canadian Constitution. Acceptance (reluctant in some cases) of the clause by all the participants in the November 1981 First Minister s Conference, except Quebec, allowed the impasse to be broken and the Charter of Rights, among other constitutional changes, to become reality. 3 Leading up to the patriation of the Constitution, a majority of the provinces informed Ottawa that they were opposed to the entrenchment of a Bill of Rights in any form. 4 The provinces believed that an entrenched Charter would supersede the doctrine of legislative supremacy and give all the power to the Courts. 5 As a compromise, then-prime Minister Pierre Elliott Trudeau conceded to the inclusion of Section 33. All provinces excluding Quebec agreed to the conditions. Former Manitoba Premier Sterling Lyon proclaimed that if it had not been for Section 33 there would have been no Charter. 6 The negotiation process was described as a classic example of raw bargaining. 7 3 Parliament, The Notwithstanding Clause of the Charter by David Johansen and Philip Rosen in Background Paper, Parliamentary and Research Service, 1989 (revised in 2005) at 5. 4 Robert J. Kott, Individual Rights and Freedoms of Canadians: How They Are Affected by the Notwithstanding Clause of the Constitution of 1982, National Defence College of Canada, Course Paper (1988): Ibid. 6 Ibid. 7 Christopher Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart Inc., 1993)

6 As a result of the intense political negotiation which took place prior to the patriation of the Constitution, little attention was paid to exactly when and how Section 33 could be used. Jean Chrétien, federal Justice Minister at the time, believed that Section 33 would be an infrequently used safety valve [...] to correct absurd situations without going through the difficulty of obtaining a constitutional amendment. 8 On the other hand, the override can be seen as offering the country s legislatures a safe-haven from the rule of non-elected and non-representative judges. 9 Other scholars feel that the value of the legislative override comes from its purpose, serving as a means of promoting a rights discourse in regards to policy issues of national importance, not simply as a means of trumping rights. 10 Nearly 30 years after the entrenchment of the Charter and the patriation of the Constitution, the breadth of Section 33 remains undefined. Since 1982, Constitutional scholars have expressed their respective opinions and concerns regarding the legislative override. For Canada s academic community, the override is an article of faith, and keeping the faith is a central theme in the literature on Section The reason for the existence of scholarly debate on Section 33 is because the override has been used exceptionally, sparingly, and at times quietly since The notwithstanding clause has been used only 16 times since the Charter s entrenchment (the province of Quebec having been responsible for 13 of those uses). 13 The majority of instances when the override was used nation-wide (including in Quebec), there was no public outcry because the public was unaware Section 33 was being used. 14 If Section 33 is at all a controversial legislative tool, why were there only a few instances of public disapproval when the legislative override was used? Queen s University Law Professor Tsvi Kahana has an answer: [ ] the four noticed pieces of legislation can be understood without any knowledge of the more general legislative schemes in which they operate. The sterilization bill and the back-to-work law were enacted as independent statues. The marriage law and the sign law were amendments to the Alberta Marriage Act and the Quebec Charter of the French language, respectively, but the amendments can be understood without being familiar with the larger acts. 8 Ibid. at Lorraine Eisenstat Weinrib, Learning to Live With the Override (1990) 35 McGill L.J Christopher Forrest, A Conversation Among Equals: Courts, Legislatures and the Notwithstanding Clause (M.A. Thesis, McGill University Department of Political Science, 2008) [unpublished]. 11 Jamie Cameron, The Charter s Legislative Override: Feat or Figment of the Constitutional Imagination? (2004) Supreme Court Law Review 23 at Ibid. at Tzvi Kahana, The Notwithstanding Mechanism and Public Discussion: Lessons From the Ignored Practice of Section 33 of the Charter, (2001) Canadian Public Administration 44: at Ibid. -6-

7 Conversely, the other notwithstanding acts were relatively inaccessible because they dealt with more complicated questions. All of them are longer [ ] containing tens or hundreds of sections. 15 Unlike the 12 instances in which the use of the legislative override was unbeknownst to the public, Quebecers are fully aware when questions of language rights talk emerge. Whether Anglophone or Francophone, Quebecers feel as though they each have a vestigial interest whenever language rights come under scrutiny, and as a result, the public is politically conscious. Since the decision rendered in the Nguyen case, Quebecers have anxiously awaited Bill 115. As expected, the sentiment of Quebecers towards Bill 115 largely depends on which language they speak. But in addition to the prevalent disagreement and overall unconstitutionality of Bill 104, there remains the related issue of whether the invocation of the notwithstanding clause as a means of expressing institutional disagreement over the interpretation of rights can be considered a legitimate exercise of legislative and executive authority. 16 One side would agree to the use of the legislative override, the other side would vehemently oppose it. As will be demonstrated in the body of this paper, it is unlikely that any government can use Section 33 on legislation relating to language rights. The simple insinuation of doing so, however, is sufficient to incite intensive debate in Quebec. Is it possible for any government (be it federal or provincial) to use Section 33 on legislation which relates to minority-language education rights?: Because Section 33 has been used rarely since 1982, the reach of the override has yet to be interpreted by the Courts. Nevertheless, legal doctrinal scholarship as well as a few select cases provide ample evidence to disallow the use of the notwithstanding clause as a way of furthering language Bills. This section will outline three reasons why Section 33 cannot be used to push through Bill 104. First, in accordance with the intentions of the Constitutional framers, minority-language education is a right never intended to be overridden. Second, characterizing Bill 104 as a fundamental freedom under section 2(b) of the Charter instead of section 23 would be creating a hierarchy of Charter provisions, something which is not allowed. Finally, this section will examine why Bill 104 cannot be characterized as a right under section 2(b) of the Charter by analysing the purpose and effects of Bill 104. First, Section 33.(1) expressly states the following: 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 in section 2 or sections 7-15 of this Charter Ibid. at Supra note Canadian Charter of Rights and Freedoms, s.33, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c

8 The legislative override only applies to specific sections of the Canadian Charter of Rights and Freedoms. The only rights which can be overridden by the notwithstanding clause are the fundamental freedoms outlined in section 2 as well as the legal and equality provisions outlined in sections 7 through 15. Bill 104 falls under the heading of section 23 of the Charter, minority-language education rights. Canadian Constitutional law expert Peter Hogg explains: [The] override power extends to s.2 (expression), ss.7 to 14 (legal rights) and s.15 (equality). It does not extend to ss.3-5 (democratic rights), s.6 (mobility), ss (language rights) or s.28 (sexual equality). With respect to these provisions, no override is possible. 18 Robert Kott clarifies Hogg s statements by articulating that Section 33 provides only for the override of sections 2 and 7 to 15. Thus, while fundamental freedoms, legal and equality rights can be overridden, democratic rights, mobility rights and language rights are preserved! 19 As stated in A.G. (Que) v. Quebec Protestant School Boards in 1984, the exception clause contained in s.33 of the Charter does not cover s.23, it is only 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. 20 Sections 33 and 23 of the Charter are thus incompatible. Second, knowing that the notwithstanding clause cannot override the minority-language education rights of section 23, can the Quebec Legislature frame Bill 104 not as an issue for minority-language rights but rather as one of fundamental freedoms? Characterizing Bill 104 under section 2(b) instead of section 23 of the Charter would then allow for the use of the legislative override. The question then becomes whether Bill 104 has a section 2(b) or a section 23 focus? While a legislature has the right to use Section 33 in accordance with the stipulations outlined in the Charter, the 1988 Supreme Court decision of Ford v. A.G. Quebec requires that a Section 33 declaration be sufficiently expressed: [This] Court is of the opinion that a s.33 declaration is sufficiently express if it refers to the number of the section, subsection or paragraph of the Charter which contains the provision or provisions to be overridden. Of course, if it is intended to override only a part of the provision or provisions contained in a section, subsection or paragraph then there would have to be a sufficient reference in words to the part to be overridden. 21 In other words, a government must expressly state in the legislation in which it desires to use the notwithstanding clause, which rights will be overridden. However, in the case at hand, where it appears that a future Quebec government may try to frame Bill 104 as 18 Peter Hogg, Constitutional Law of Canada, Student ed. (Toronto: Thomson Carswell, 2008) at Supra note 4 at A.G. (Que) v. Quebec Protestant School Boards, S.C.R 66 at 68 [Quebec Protestant School Boards]. 21 Ford v. A.G. Quebec, 1988 SCC 19, [1988] 2 S.C.R. 712 at 33, [Ford] -8-

9 part of section 2(b), the legislation must explicitly state which provision of section 2(b) is to be overridden. This requirement of explicitness when using the legislative override guarantees that the actions of the government are at least somewhat transparent. As rights holders, Canadians are entitled to know when their rights are being limited. While it is yet to be determined which provision of section 2(b) a future Quebec government would try to override, in all likelihood it would be the freedom of expression provision. Hypothetically speaking, in the absence of any Charter sections dealing with language and particularly minority-language education rights, Bill 104 may fit under section 2(b). The problem, however, is that Section 23 is the specific provision focusing on the very rights outlined in Bill 104. According to Graham Fraser, in a work published before he became Canada s Commissioner of Official Languages, the right to learn that Pierre Trudeau defined as a key right to be protected was outlined in Section 23. [ ] The right to learn is clearly defined as the right to be educated in minority-language schools, and there is no defined right of access to second-language learning for children in minority-language communities. 22 There is thus no need to further interpret which section of the Charter Bill 104 falls under. Logically speaking, a statute dealing with minority-language education rights should fall under the Charter section which deals with that very subject matter, Section 23. In the 2005 Supreme Court case of Gosselin v. Quebec, a unanimous Court stated the following in regards to Constitutional provisions: There is no hierarchy amongst Constitutional provisions. Equality rights cannot therefore be used to invalidate other rights expressly conferred by the Constitution. All parts of the Constitution must be read together. 23 Giving Section 2(b) rights to Bill 104 for the sole purpose of implementing the legislative override is to value Section 2(b) more than Section 23. The Court in Gosselin, however, makes it clear that creating a hierarchy of Constitutional rights is unconstitutional. Any analysis of minority-language instruction must take as its starting point the guarantee provided in s. 23 in the Canadian Charter. 24 Bill 104 must thus be interpreted and scrutinized under section 23 of the Charter, not section 2(b). Finally, hypothetically speaking, if the Courts were to accept that Bill 104 falls under section 2(b) of the Charter, then the Quebec government might well have the authority to use Section 33. However, the action of using the legislative override must conform to the letter and spirit of Section Advocates of the notwithstanding clause argue that the greatest impediment to Section 33 s use is the popular misperception that a decision to invoke the notwithstanding clause implicates the state in the abrogation of citizens rights. 26 For some, Section 33 amounts to nothing more than the government 22 Graham Fraser, Canadian Language Rights: Liberties, Claims, and the National Conversation in James B. Kelly & Christopher P. Manfredi, eds., Contested Constitutionalism:Reflections on the Canadian Charter of Rights and Freedoms (Vancouver: UBC Press, 2009) 169 at Gosselin v. Quebec 2005 SCC 15, [2005] 1 S.C.R. 238 at page 3 [Gosselin]. 24 Ibid. at par Supra note 9 at Supra note 10 at

10 squeezing Canadians of their rights. But such a misconception does not go to the letter and spirit of the Charter section. The letter and spirit of the legislative override are to limit rights for a limited period of time (by means of the sunset clause Section 33(3)), not destroy rights altogether. Allowing Bill 104 to fall under section 2(b) of the Charter would enable the government to use the notwithstanding clause. The legislative override, while in place for its five-year term, would effectively eliminate the right of English-speaking minority children to attend an English public school. If after that five-year period the Court were to some day decide (as it likely would) that Bill 104 falls under Section 23 of the Charter, then the decision in the 2005 case of Solski v. Quebec vitiates the children s Constitutional right. In that case, the Supreme Court of Canada explains that s.23 is contextual, 27 and that to purposefully assess the requirement for participation in s.23 [ ] all the circumstances of the child must be considered, including the time spent in each program, at what stage of education the choice of language of instruction was made, what programs are or were available, and whether learning disabilities or other difficulties exist. 28 The use of the notwithstanding clause in this case would eliminate the ability of many English children in Quebec to attend English public schools in the province. During the five year period in which the notwithstanding clause would be in effect, many English children in Quebec would be going through their formative years. Those children would be required to attend either a French public schools or an unsubsidized private school. After the five-year period, those children who attended a French public school or received an unsubsidized private education would likely not be allowed to attend an English public school (and as a result, neither would their heirs). The decision in Solski allows the provincial government to determine who falls under the criteria of eligibility regarding Section 23. All of this to say that the categorization of Bill 104 under section 2(b) of the Charter for the purpose of using the legislative override would effectively eliminate a right, not limit it. Such a use of Section 33 would likely be declared unconstitutional, and therefore disallowed. Section 1 of the Charter allows for reasonable limits on rights. However, as Peter Hogg mentions in reference to the Quebec Protestant School Boards case, not every Charter infringement is a limit, and any infringement that is more severe than a limit cannot be justified under section The Quebec Protestant School Boards case explains that there is a substantive difference between a limitation of a right and a denial. The Court has since taken a much more liberal stance on what it deems as an outright denial of Constitutional rights, particularly when speaking about language rights in Quebec. However, if Section 33 serves as a tool which limits rights, not eliminates them, then allowing Bill 104 to pass as a section 2(b) provision for the purpose of being overridden would go against the spirit and letter of the notwithstanding clause itself because of the Solski test. 27 Solski v. Quebec 2005 SCC 14, [2005] 1 S.C.R. 201 at 34 [Solski]. 28 Ibid. at Supra note 18 at

11 In the 1985 case of R. v. Big M Drug Mart, Supreme Court Justice Dickson examines the connection between the purpose and effect of a piece of legislation and how it may affect its constitutionality: In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. [ ] Purpose and effect respectively, in the sense of the legislation s object and its ultimate impact, are clearly linked, if not indivisible. Intended and actual effects have often been looked to for guidance in assessing the legislation s object and thus, its validity. 30 Moreover, consideration of the object of legislation is vital if rights are to be fully protected. The assessment by the courts of legislative purpose focuses scrutiny upon the aims and objectives of the legislature and ensures they are consonant with the guarantees enshrined in the Charter. 31 The above quotations emphasize the importance behind the purpose and effect of legislation. This is significant because if ever a Quebec government forges ahead with the idea of having Bill 104 fall under Section 2(b) of the Charter instead of Section 23 where it rightfully belongs, the Courts, in interpreting Bill 104, will be required to undertake a purposeful examination of the legislation. If the purpose of forging ahead with the characterization of Bill 104 as a Section 2(b) right is solely for the purpose of using the legislative override, then the Courts are not likely to allow it. As stated in the above paragraph, the use of Section 33 on Bill 104 would make it impossible for some students to exercise their Constitutional right because of the criteria outlined in the Solski case. 32 The effect would be an abolition of rights, not a limitation, thus rendering the action of using Section 33 in such a scenario unconstitutional. Bill 104 supporters are clinging to the fact that over the last two decades the Supreme Court of Canada has repeatedly linked language to culture. The strength of this argument will be addressed later on in this paper. However, the 1990 case of Mahe v. Alberta helps to clarify the purpose of Section 23 in the promotion of two official languages: The general purpose of s.23 of the Charter is to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language flourishes as far as possible, in provinces where it is not spoken by the majority of the population. 33 In Mahe, the Supreme Court concluded that the method chosen to advance the goal of preservation of language and culture, namely, to confer upon minority-language speaking parents the right to have their children educated in their maternal official 30 R. v. Big M Drug Mart [1985] 1 S.C.R. 295 at Ibid. at Solski, supra note 27 at Mahe v. Alberta 1990 SCC133, [1990] 1 S.C.R. 342 at 2 [Mahe]. -11-

12 language, is embodied in s The preservation of language is thus achieved through Section 23. While it is clear that the preservation of language (and by extension culture) can be done by means of education, issues of minority-language education fall under Section 23 of the Charter, not Section 2. Arguments in favour of allowing the use of Section 33 on Minority-language education rights: The above arguments have shown that it is highly unlikely a Quebec government can use Section 33 on Bill 104 specifically, or any future Bill or piece of legislation relating to minority-language education rights. However, just because this rule may hold firm now, does not mean that it will continue to stand in the future. There are two reasons why it remains to be seen whether a government could institute Bill 104 by means of Section 33. First, Section 33 has only been implemented a handful of times and there has never been any extensive interpretation on the notwithstanding clause by the judiciary. Second, there has been an increasing level of deference granted by the Courts to the Quebec National Assembly when it comes to dealing with language rights. Nevertheless, as will be demonstrated in the remaining paragraphs, such deference does not grant a Quebec government the ability to transform a Section 23 Bill (minority-language education rights) into a Section 2 Bill (fundamental freedoms). Looking at the first issue, it must be understood that using Section 33 does not require approval by the Courts. Governments have a right to use the override without judicial scrutiny. As a result, the Courts have examined Section 33 on very few occasions. Section 33 thus remains a mystery, the implications of which are yet to be understood. It may very well be that there exists a simple way to implement Section 33 on an issue relating to language rights and the Courts will accept it. Who knows? Jurisprudence and doctrine allow lawyers to only speculate how judges will interpret certain legal questions. There is no clear answer. However, the jurisprudence and legal scholarship cited above strongly suggest that Section 33 cannot be used as a way of limiting a section 23 right. Second, the Courts have been progressively moving from a purely adjudicative role to one of judicial activism through broader interpretations and more progressive measures with respect to the enforcement of s.23 rights. 35 The Courts have established that language rights guarantees cannot be separated from cultural rights guarantees, and schools serve as a way of implementing culture. 36 In 1968, the Royal Commission on Bilingualism and Biculturalism concluded the following: Les minorités, qu elles soient francophones ou anglophones, accordant inévitablement la priorité à leur langue. [ ] La langue est en outre la clef du progrès culturel. Certes, langue et culture ne sont pas synonymes, mais le 34 T.L. Peszle, Language Rights in Quebec Education: Sources of Law (M.A. Thesis, McGill University Department of Education, 1996) [unpublished]. 35 Supra note 30 at Ibid. at

13 dynamisme de la première est indispensable à la préservation intégrale de la seconde. 37 While there is an assertion that language and culture are distinct, education is nevertheless perceived as being the engine driving the culture of those with minoritylanguage backgrounds. 38 In the 1986 case of Société des Acadiens du Nouveau- Brunswick Inc. v. Association of Parents for Fairness in Education, Beetz J. had the following remarks in regards to Language Rights: Language rights [ ] although some have been enlarged and incorporated into the Charter, remain nonetheless founded on political compromise. 39 Wilson J. in Re Bill 30, An Act to amend the Education Act (Ont) gives direction on how the Courts should deal with particular provisions of the Charter born out of political compromise: While due regard must be paid not to give a provision which reflects a political compromise too wide an interpretation, it must still be open to the court to breathe life into a compromise that is clearly expressed. 40 The Supreme Court of Canada has always given Section 23 a very broad and liberal interpretation and the Courts do not seem hesitant about bringing about new interpretations in order to keep the vitality of the political compromise strong. 41 In the Nguyen case, Lebel J., speaking for a unanimous Court, gives the impression that Section 23, although not enacted in a vacuum (in reference to the political compromises necessary to patriate the Constitution), should nevertheless be applied uniformly throughout Canada. 42 But the end of the judgment seems to have considerable sympathy for the Quebec position: I do not wish to deny the dangers that the unlimited expansion of UPSs [unsubsidized private schools] could represent for the objectives of preserving and promoting the French language in Quebec. If no action were taken to control the expansion, the bridging schools could become a mechanism for almost automatically circumventing the CFL s provisions on minority-language educational rights [ ] restoring the freedom to chose the language of instruction in Quebec. 43 [ ] 37 Rapport de la Commission royale d enquête sur le bilinguilisme et le biculturalisme, volume II, L éducation, Ottawa, Imprimeur de la Reine, 1968, p Mark Power and Pierre Foucher, Les Droits Linguistiques en Matières Scolaire in Michel Bastarache, ed., Les Droits Linguistiques au Canada (Cowansville: Les Editions Yvon Blias Inc., 2004) 399 at Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, 1986 SCC 66, [1986] 1 S.C.R. 549, at p Re Bill 30, An Act to amend the Education Act (Ont) 1987 SCC 65 [1987] 1 S.C.R. 1148, at p Supra note 38 at Nguyen, supra note 1 at Ibid. at

14 Moreover, it must not be forgotten that the special authorizations mechanism remains wholly within the authority of the Quebec government, which can therefore grant authorizations that exceed what is constitutionally obligated to grant. 44 The Court sounds almost apologetic or embarrassed that it has denied Quebec the right to institute Bill 104. The problem with acting so timid, however, is that the Court may bow to the whim of Quebec in the face of pressure from the Quebec government. Such a scenario is unpredictable, in that it is unclear whether the Supreme Court would stand firm in its previous interpretations regarding language rights and Section 23 or further broaden Section 23 and give in to Quebec s demands for the sake of calm. Nevertheless, despite the murkiness of the future ambit of Section 23 and the potentially aggressive attack on its scope by a future Quebec government, the Court will not likely allow minority-language education rights to enter into the realm of section 2, fundamental freedoms. Section 33 will thus remain off limits for Bill 104. Is it possible to contractually opt-out of Section 23 Charter rights?: If the National Assembly cannot implement Bill 104 by means of Section 33, an alternative plan has been suggested for Bill 115 in an effort to finally lay to rest the use of so-called bridging schools in Quebec. The following has been suggested: Au moment de l inscription d un enfant dans une EPNS de langue anglaise, ses parents devront produire une déclaration solennelle écrite à l effet que cette inscription n a pas pour but de contourner les exigences de la CLF mais s inscrit dans le cadre d un parcours scolaire complètement prévu au sein d institutions qui se sont pas subventionnées. De cette façon, le parcours scolaire authentique de l enfant sera précisé dès le départ (et non a posteriori). 45 Under the abovementioned plan, parents who wish to send their children to unsubsidized English schools (be they bridging schools or not) would be forced to sign a contract saying the child is not using this time in an unsubsidized school as a way of garnering the rights outlined for all Canadian citizens under Section 23 of the Charter. In other words, the plan promotes the creation of a contract requiring parents to waive their children s right to one day attend an English public school. There are two questions which must be addressed regarding such a plan. The first is that assuming a child s parents send him or her to an unsubsidized English school, can the criteria outlined in the Solski case be ignored in the face of the contract signed by the 44 Ibid. at Louis Bernard, Mémoire sur le projet de la loi no. 103: Loi modifiant la Charter de la langue francaise et d autres dispositions legislatives, Legislative Comment on CCE 024M C.G. P.L

15 child s parents? Second, can people contract out of their Constitutional rights in the first place? Looking at the first question, a unanimous Court in the Solski case (as cited above) determined that a qualitative approach must be taken in determining a child s overall educational experience, including the time spent in a program. 46 If a child spends time in a bridging school then technically, that should count as time spent in an English program, especially if the child spends several formative years in an English program. The Court, in determining the constitutionality of the contract system, will undoubtedly refer to the test outlined in the Solski case. The Court might very well declare such a plan unconstitutional, as it simply disregards the Court s previous interpretation of Section 23. Looking now to the second question, is it possible to contract out of Constitutional rights? The answer to this question is yes. It must be understood that rights are not unlimited. In fact, Section 1 of the Charter is often referred to as the reasonable limits clause, allowing Charter rights to be overridden pending the override can be demonstrably justified in a free and democratic society. 47 In regards to contracting out of one s Charter rights, Canadian legal doctrinal writer Pierre-Gabriel Jobin writes the following: Dans un contexte de droit public certes, plutôt que de droit contractual, la Cour supreme a admis qu une personne puisse, en principe, renoncer à ses droits et libertés. 48 The Supreme Court in numerous decisions has allowed Constitutional rights to be waived. However, implementing such a schema is more complicated than simply signing a standard-form contract. According to LaForest J. in the 1996 Supreme Court case of R. v. Richard, it is clear that where it is possible to waive a given right or freedom, [the Supreme Court] has always stressed that the conduct of the holder of the right or freedom amounting to waiver must be voluntary and that he or she must have full knowledge of the consequences of that waiver. 49 Iacobbuci J. repeats the aforementioned criteria in Syndicat Northcrest v. Amselem, saying that a waiver of any right must be voluntary, freely expressed and with a clear understanding of the true consequences and effects of so doing if it is to be effective. 50 Additionally in Amselem, Iacobbucci J. articulates that waiver of a fundamental right [ ] presumably need not only be voluntary; it must also be explicit, stated in express, specific and clear terms. 51 In other words, a contract in which the consequences of its implementation will be a waiver of Charter rights must state explicitly, not impliedly, that these Charter rights are being waived. The statements 46 Solski, supra note 27 at Canadian Charter of Rights and Freedoms, s.1, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c Pierre-Gabriel Jobin, Contrats et droits de la personne: un arrimage laborieux dans Benoit Moore dir., Mélanges Jean Pineau, Montreal (Qc), Les Editions Themis, 2003, R. v. Richard, 1996 SCC 185, [1996] 3 S.C.R. 525 at 22 [Richard]. 50 Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551 at 96 [Amselem]. 51 Ibid at

16 by Justice Iaccobucci seem to suggest that while Charter rights can be waived, such renunciation must be spelled out clearly in the contract so that all parties understand the ramifications of their respective prestations. Also at issue with a contractual renunciation of a Charter right is the assurance that the right was waived voluntarily. In the case of Godbout v. Longueuil (City), LaForest J. stated that a person who renounces his or her Constitutional right because he or she has no choice cannot be said to be freely waiving a right in the first place. 52 By its very nature, a waiver must be freely expressed if it is to have any effect. 53 Much like in Godbout, a parent signing the Bill 115 contract would likely not be willingly surrendering their right. Instead, these parents are faced with only two options: waiving their children s Charter right to a Section 23 English public school, or send their children to French public school. There is little free choice in the matter and the Courts may decide that signing such a contract does not constitute a voluntary waiver at all. While it is unclear how the Courts would interpret the Solski test in light of the Bill 115 contract suggestion, the issue surrounding waiver of one s Constitutional and Charter rights seems clearer. It is indeed possible to contractually waive one s rights. However, implementing such a schema must be done with the utmost care. The above-cited jurisprudence suggests that all parties privy to the contract must be fully aware that their Section 23 Charter rights are being waived and all parties must also be cognizant of the consequences. Additionally, parties must have entered into the contract freely, a major point of contention regarding the Bill 115 contract plan. Despite the strength of this argument, however, it still remains to be seen how the Courts would interpret such a plan overall. Conclusion For all its intents and purposes, Bill 104 is a language bill. Its official name, An Act to Amend the Charter of the French Language, clearly indicates the purpose of Bill 104. As such, Bill 104 cannot and should not be characterized as anything other than a language Bill. This paper has shown why Section 33 is not a viable tool for any government to implement minority-language education legislation. The legislative override has a limited reach in terms of which Charter sections can be overridden. Despite the fact that the breadth of Section 33 is yet to be definitively interpreted, the Charter makes it perfectly clear which sections can be overridden. It is therefore right to assume, given the legal scholarship and framer s intentions, that those sections not specified in Section 33.(1) of the Charter cannot be overridden. Language rights are specifically covered in Sections of the Charter. Bill 104, as a language bill, should fall under Section 23. In so doing, it remains outside of the reach of the notwithstanding clause. 52 Godbout v. Longueuil (City), 1997 SCC 335, [1997] 3 S.C.R 844 at 72 [Godbout]. 53 Ibid. -16-

17 Framing Bill 104 as a Section 2(b) piece of legislation would invariably create a hierarchy of Charter provisions, an action not allowed according to Gosselin. Bill 104 directly falls under Section 23 and can only be seen as having a potentially indirect connection to Section 2(b). Quebec legislators trying to enact Bill 104 as a Section 2(b) right would thus be in violation of the understanding that Charter provisions are not arranged hierarchically. The Quebec government cannot change Bill 104 to a Section 2(b) right for the sole purpose of implementing the notwithstanding clause. A government trying to implement the notwithstanding clause must be cognizant of the letter and spirit of the override. It is not a rights-stomping tool. Instead, its purpose is to limit rights, not dispose of them permanently. Limiting these rights for a period of five years coupled with the Solski test would invariably result in some children losing out on their rights altogether. They would not be able to regain what was lost. The spirit of the notwithstanding clause would thus be violated, allowing the Courts to potentially stop the use of the notwithstanding clause in the given situation because it was not applied properly. Arguments favouring the Quebec government s ability to use Section 33 on Bill 104 are weak. True, the legislative override has not been fully interpreted by the Courts. Nevertheless, all elements, including jurisprudence, legal scholarship and the framer s intentions seem to show that Bill 104 and Section 33 are not compatible. As well, simply because there has been deference in the past towards the Quebec National Assembly by the Supreme Court does not mean the Court is willing to completely reinterpret nearly 30 years of Constitutional jurisprudence and doctrine. By virtue of being a provision in the Charter, Section 23 is transnational, meaning its enforcement must be consistent across the country. And while there is undoubtedly some room for malleability by the Courts, allowing the implementation of Bill 104 by means of the notwithstanding clause for reasons of political compromise would cheapen the role of the judiciary. Finally, looking at the hypothetical plan of having parents sign contracts on behalf of their children to opt out of their Constitutional rights is legally permissible, although it is unclear if the Courts would recognize such an action in light of the Solski case. Nevertheless, jurisprudence suggests that there exists is a significant threshold to waive one s Constitutional and Charter rights. Both parties privy to the contract must be fully aware of the consequences of their actions of surrendering their rights. Additionally, the contract itself must explicitly mention that Charter rights have been waived. Finally, the act of signing must be voluntary. The purpose of this paper is to analyze whether Section 33 of the Canadian Charter of Rights and Freedoms can be used to implement an unconstitutional piece of legislation, Bill 104, which invariably falls under Section 23 of the Charter. All scholarship and jurisprudence suggest that such use of the legislative override in the present case is not allowed absent a Constitutional amendment. -17-

18 Works Cited Articles and Essays: Jamie Cameron, The Charter s Legislative Override: Feat or Figment of the Constitutional Imagination? (2004) Supreme Court Law Review 23. Graham Fraser, Canadian Language Rights: Liberties, Claims, and the National Conversation in James B. Kelly & Christopher P. Manfredi, eds., Contested Constitutionalism:Reflections on the Canadian Charter of Rights and Freedoms (Vancouver: UBC Press, 2009) 169. Lorraine Eisenstat Weinrib, Learning to Live With the Override (1990) 35 McGill L.J. Mark Power and Pierre Foucher, Les Droits Linguistiques en Matières Scolaire in Michel Bastarache, ed., Les Droits Linguistiques au Canada (Cowansville: Les Editions Yvon Blias Inc., 2004) 399. Parliament, The Notwithstanding Clause of the Charter by David Johansen and Philip Rosen in Background Paper, Parliamentary and Research Service, 1989 (revised in 2005). Pierre-Gabriel Jobin, Contrats et droits de la personne: un arrimage laborieux dans Benoit Moore dir., Mélanges Jean Pineau, Montreal (Qc), Les Editions Themis, Robert J. Kott, Individual Rights and Freedoms of Canadians: How They Are Affected by the Notwithstanding Clause of the Constitution of 1982, National Defence College of Canada, Course Paper (1988). Tzvi Kahana, The Notwithstanding Mechanism and Public Discussion: Lessons From the Ignored Practice of Section 33 of the Charter, (2001) Canadian Public Administration 44: Books Christopher Manfredi, Judicial Power and the Charter: Canada and the Paradox of Liberal Constitutionalism (Toronto: McClelland and Stewart Inc., 1993) Peter Hogg, Constitutional Law of Canada, Student ed. (Toronto: Thomson Carswell, 2008). -18-

19 Cases A.G. (Que) v. Quebec Protestant School Boards, S.C.R 66 Ford v. A.G. Quebec, 1988 SCC 19, [1988] 2 S.C.R. 712 Godbout v. Longueuil (City), 1997 SCC 335, [1997] 3 S.C.R 844 Gosselin v. Quebec 2005 SCC 15, [2005] 1 S.C.R. 238 Mahe v. Alberta 1990 SCC133, [1990] 1 S.C.R. 342 Nguyen v. Quebec, 2009 SCC 47, [2009] 3 S.C.R. 208 R. v. Big M Drug Mart [1985] 1 S.C.R. 295 R. v. Richard, 1996 SCC 185, [1996] 3 S.C.R. 525 Re Bill 30, An Act to amend the Education Act (Ont) 1987 SCC 65 [1987] 1 S.C.R Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, 1986 SCC 66, [1986] 1 S.C.R. 549 Solski v. Quebec 2005 SCC 14, [2005] 1 S.C.R. 201 Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551 Legislation and Commissions Bill 103: An Act to Amend the Charter of the French Language and Other Legislative Provisions, R.S.Q. 2010, amending R.S.Q., chapter C-11, R.S.Q., chapter C-12, R.S.Q., chapter E-9.1. Bill 104: An Act to Amend the Charter of the French Language, R.S.Q. 2002, amending R.S.Q., chapter A-6.001, R.S.Q., chapter C-11, R.S.Q., chapter C-11, R.S.Q., chapter V-1.1. Louis Bernard, Mémoire sur le projet de la loi no. 103: Loi modifiant la Charter de la langue francaise et d autres dispositions legislatives, Legislative Comment on CCE 024M C.G. P.L Rapport de la Commission royale d enquête sur le bilinguilisme et le biculturalisme, volume II, L éducation, Ottawa, Imprimeur de la Reine, Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c