The Lawyers Weekly - September 17, 2010

English
Continued From Page 1
before the Quebec Court of
Appeal and then the Supreme
Court of Canada.

In October 2009, the Supreme Court of Canada 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 s. 23 of the Canadian Charter of Rights and Freedoms. “Because of the difficulties this declaration of invalidity may entail,” the SCC said, it suspended the affect of 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 Oct. 22.

The parents returned to the
administrative tribunal early this
year, though, 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 the Quebec Superior
Court, seeking leave for their
children to continue at the
schools they had attended, at
least until they could be evalu-
ated by the new criteria set out in
the forthcoming Bill 103.

“Substantively, the
ruling is important
because it prevents
shortcuts from being
taken before the
government passes
Bill 103.
that the law remains in effect
until the one-year deadline to
amend the law elapses.
“The rights of the parents to a
constitutional exemption of the
application of paragraph 2 et al of
s. 73 of the Charter of the French
language during the year that the
National Assembly 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 et al of s. 73 for a
year sought to prevent these
kinds of demands up until Octo-
ber 2010.”
After conducting a brief
analysis of the balance of con-
venience, Judge Dalphond also
found that there “is no doubt”
that granting the students an
exemption would cause serious
harm to the government and
society. Dozens, if not hundreds
of parents, added Justice Dal-
phond, would try to bypass the
SCC ruling. While it may be true
that changing schools could rep-
resent hardship for the students
in question, Justice Dalphond
said that it is “relative” since that
is the fate that thousands of Que-
bec schoolchildren face annually
without serious difficulty when
they go from an elementary to a
high school.