From: mathew@unixg.ubc.ca (Mathew B Englander)
Newsgroups: can.politics,soc.culture.canada
Subject: Section 23 of Charter (was Re: The Manning-Trudeau Manifesto?)
Date: 16 Oct 1992 01:37:49 GMT
Organization: University of British Columbia, Vancouver, B.C., Canada
NNTP-Posting-Host: unixg.ubc.ca

Francois Audet wrote that section 23 applies to provinces in TROC
only where they have existing French-language educational systems.
This is not quite correct. Gerald Olchowy asked, in response to a
different point of Francois's, how section 23 could apply to immigrants
in Quebec.

The leading case on section 23 is the Montreal Protestant School Board
case, interpreting the phrase "where numbers warrant".

Here is s.23 in its entirety. Note however, that paragraph 23(1)(a)
is not in force in the province of Quebec. Note also that the rights
conferred in subsections (1) and (2) are qualified by paragraph (3)(a):

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 the 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.

    (3) The right of citizens of Canada under subsections (1) 
    and (2) to have their children receive primary and secondary
    school instruction in the language of the English or French
    linguistic minority population of a province

  	(a) applies wherever in the province the number of children
	of citizens who have such a right is sufficient to warrant
	the provision to them out of public funds of minority
        language instruction; and
	
	(b) includes, where the number of those children so warrants,
	the right to have them receive that instruction in minority
	language educational facilities provided out of public
	funds.


Contrary to Francois's posting, the rights apply whenever numbers
warrant, not only if there's an existing educational system in that
language. For example, if a large number of francophone Quebeckers
(or for that matter a large number of francophone Algerians)
were to move to Gimli, Manitoba, then the province of Manitoba would
have to provide their children with french-language education.

If you define someone who moves from Ontario to Quebec as an
immigrant to Quebec, then s. 23 does apply to some anglophone
immigrants. If you define immigrant in the conventional sense as
someone from a different country, then s. 23 does not apply to
immigrants in Quebec (since 23(1)(a) is not in force in that province).

Even when 23(1)(a) does come into force in Quebec, it will only
apply to anglophone immigrants. Someone whose first language is
Italian, for example, would not have the right under s. 23 to 
have her children educated in English.

Mathew Englander.