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10 C.H.R.R. ND/1 (1989)

handle is hein.journals/chhr10 and id is 1 raw text is: CANADIAN HUMAN RIGHTS REPORTER NEW DEVELOPMENTS Volume 10, C.H.R.R. January 1989 CASES OF NOTE French Language Requirements for Professionals not Discriminatory The Supreme Court of Canada has allowed an ap- peal by the Attorney General of Quebec from a deci- sion of the Quebec Court of Appeal which found that two regulations under the Charter of the French Lan- guage were invalid. In order to practice her profession as a nursing as- sistant in Quebec, Nancy Forget needs a permit from the Corporation Professionnelle des infirmiers and in- firmieres du Quebec. Under section 35 of the Charter of the French Language, the corporation may not is- sue permits except to persons whose knowledge of the French language is appropriate to their profession. Ms. Forget took the required French examination eleven times in an effort to obtain her permit and failed. Ms. Forget then challenged Regulations 2(a) and 3 under the Charter of the French Language on the grounds that they discriminated contrary to the Quebec Charter of Rights and Freedoms and that, in addition, they made an unauthorized subdelegation of powers to a committee. Regulation 2(a) created a presumption of appropriate knowledge of French for persons who have taken at least three years full-time instruction in French at the secondary level of school- ing or later. Persons not having this training were re- quired to have a certificate confirming that they had appropriate knowledge. They could obtain this certifi- cate by passing a written and oral examination. Regulation 3 provided for examinations prepared by a committee according to criteria established by the Of- fice de la langue francaise. The majority of the Court found that these regula- tions were not discriminatory and that subsequent amendments to the Charter of the French Language incorporating these provisions into the Act itself are also not discriminatory. Lamer J., writing for the majority, found that while Regulation 2(a) did make a distinction based on lan- guage which probably in the majority of cases resulted in francophones being assumed to have the appropri- ate knowledge because of having had three years in- struction in French and anglophones and others being required to pass the examination, it was not discrimi- natory. Non-francophones were not prohibited from joining their chosen profession on grounds that are ar- bitrary or not job-related. In fact, provision is made to allow them to enter on the basis of demonstrated com- petence. Lamer J. also found that there was no error in the delegation of the power to set examinations to a com- mittee in Regulation 3. He therefore found the regula- tions valid, allowed the appeal, and set aside the judg- ment of the Court of Appeal. In a minority opinion, L'Heureux-Dube J., writing for herself, Dickson C.J. and Wilson J., found that the issue is moot because between the time of the Court of Appeal hearing and the time of the Supreme Court of Canada hearing, the Charter of the French Language was amended and the question in the case became an academic one. Also since there is no challenge to sec- tion 35 of the Charter a declaration of invalidity of Regulations 2(a) and 3 would not have the effect of re- quiring the corporation to admit Ms. Forget to her pro- fession. Thus whether the appellant wins or loses Nancy Forget will have to establish that she has an ap- propriate knowledge of French for her profession. Since the appeal is irrelevant, the minority would not have decided the case. However, Dickson and Wilson JJ. stated that if they had thought it appropriate to de- cide on the merits, they would have agreed with Lamer J. (See Decision 845) Human Rights Protection for those Charged with Criminal Offence The B.C. Human Rights Council found that Her- cules Tire Store discriminated against John Dore when his part-time employment was terminated because he was charged with breaking and entering. John Dore was hired on a part-time basis to repair and install tires at Hercules Tire Store on February 14, 1987. On March 7, 1987 Mr. Dore and another young man were questioned about an incident the previous evening at the elementary school in Princeton. The ND/1

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