Bill 101 had been enacted prior to the enactment of the Charter and the criteria set out in section 73 of Bill 101 in a restrictive sense were repeated in section 23 of the Charter as rights. The Court concluded that because of that fact section 73 could not have been regarded by the framers of the Charter as a justifiable limit on Charter rights pursuant to section 1 of the Charter. However, the Court also held that even if Bill 101 had been enacted after the Charter it would have had the effect of amending section 23 of the Charter, which was not contemplated by section 1 of the Charter and which only could have been done by an amendment to the Constitution.
Section 73 of Bill 101 was precise and in essence redefined the categories of persons entitled to receive instruction in the language of the anglophone minority. However, section 23(1)(a) of the Charter was found not to be in force in Québec as Québec had not proclaimed that section to be in force pursuant to section 59 of the CONSTITUTION ACT, 1982.
Author GÉRALD-A. BEAUDOIN Rev: TIMOTHY J. SNYDER