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Charter of Rights - Constitutional law - Minority language educational rights - Whether second paragraph of s. 73 of Charter of the French language, R.S.Q., c. C-11, infringes s. 23(2) of Canadian Charter of Rights and Freedoms - If so, whether infringement is reasonable limit that can be justified in free and democratic society under s. 1 of Canadian Charter of Rights and Freedoms.

Section 23(2) of the Canadian Charter provides that 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. Over the years, a practice developed in Quebec whereby parents sent their child to an unsubsidized private school in English for a short time and then claimed the constitutional right to instruction in English in the public or subsidized private network. To put a stop to this practice, the Quebec legislature added the second and third paragraphs of s. 73 of the Charter of the French language in 2002. The effect of the second paragraph is to make “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”, irrelevant for the purpose of establishing the right to instruction in English for a child in Quebec. Under the third paragraph, the same is true of “[i]nstruction in English received pursuant to a special authorization under section 81, 85 or 85.1”. The issue is whether the second paragraph of s. 73 violates the language guarantees set out in s. 23(2) of the Canadian Charter.