Minority Language Educational Rights

36 Section 23: Minority Language Educational Rights

Provision

Language of instruction

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.

Continuity of language instruction

(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.

Application where numbers warrant

(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.

Similar provisions

Section 23 of the Charter is implemented by the provinces through a variety of enabling statutes, regulations and other legislative instruments.

Purpose

Preliminary observations

1. General purpose

The general purpose of section 23 of the Charter is clear: it is to preserve and promote the two official languages of Canada and the cultures represented by those languages, by ensuring that each language flourishes, as far as possible, in provinces where it is not spoken by the majority (Mahe (Mahe v. Alberta, [1990] 1 S.C.R. 342) at paragraph 31).

In this respect, section 23 means more than teachers who provide instruction in French to students who receive it in that language, and that educational institutions can objectively be considered as those of the linguistic minority (Re Education Act of Ontario (Re Education Act of Ontario and Minority Language Education Rights, 10 D.L.R. (4th) 491, (C. A. On.)) at paragraph 107).

Section 23 seeks to preserve and promote the minority, by granting minority language educational rights to minority language parents throughout Canada. The guarantee cannot be separated from a concern for the culture associated with the language. Language is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it (Mahe at paragraph 31).

The right to minority language education in section 23 is designed to enhance our country’s bilingualism and biculturalism, and maintain the unique partnership between language groups that sets our country apart among nations (CSF de la C-B (Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2016 BCSC 1764) at paragraph 123).

Paragraph 23(1)(b) and subsection 23(2) of the Charter have the same purpose and must be interpreted in the same way. Subsection 23(2) has another specific purpose: to provide continuity minority language education rights, to ensure family unity and to accommodate mobility (Solski (Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 201) at paragraph 2).

2. Remedial nature

Section 23 of the Charter is also remedial in nature. History reveals that section 23 was designed to correct, on a national scale, the progressive erosion of minority official language groups and to give effect to the concept of the “equal partnership” of the two official language groups in the context of education and to actively encourage both languages to flourish (Mahe at paragraph 35; Reference re Public Schools Act (Man.) (Reference re Public Schools Act (Man.), [1993] 1 S.C.R. 839) at page 79; Arsenault-Cameron (Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3) at paragraphs 26-27; Doucet-Boudreau (Doucet-Boudreau v. Nova Scotia (Minister of Education), [2003] 3 S.C.R. 3) at paragraph 28).

Section 23 guarantees the right to minority language education as a tool for combating assimilation. Schools must be built and have a duty to attempt to fight assimilation, even if they only exist to serve those students until they grow older, start their own homes and assimilate (CSF de la C-B, at paragraph 343). Section 23 places a unique positive duty on governments to make expenditures out of public funds, and to act promptly to prevent assimilation (CSF de la C-B 2016, at paragraph 6455) It also requires prompt action to prevent assimilation and ensure that generations of rights holders do not lose their rights (CSF de la C-B 2016, at paragraphs 419 and 6841).

3. Foundation of a bilingual and bicultural Canada

The constitutional protection of minority language rights is necessary for the promotion of robust and vital minority language communities which are essential for Canada to flourish as a bilingual country (Solski at paragraph 2).

The very presence of section 23 in the Charter attests to the recognition, in the Canadian Constitution, of the essential role played by the two official languages in the formation of Canada and in the country’s contemporary life (Solski at paragraph 6; Lavigne (Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773) at paragraph 22).

Section 23 of the Charter is the cornerstone of Canada’s commitment to the values of bilingualism and biculturalism (Mahe at paragraph 2; Reference re Public Schools Act (Man.) at page 79; Arsenault-Cameron at paragraph 26; Gosselin (Gosselin (Tutor of) v. Quebec (Attorney General), [2005] 1 S.C.R. 238) at paragraph 28).

The purpose of section 23 emphasizes the goal of protecting Canada’s strength and unity by preserving its official languages and their cultures (CSF de la C-B at paragraph 118).

4. Linkages between language and culture

Any broad guarantee of language rights, especially in the context of education, cannot be separated from a concern for the culture associated with the language. Minority schools themselves provide community centres where the vitality and preservation of minority language culture can occur. They provide needed locations where the minority community can meet and facilities which they can use to express their culture (Mahe at paragraph 33; Solski at paragraph 3).

The school is the single most important institution for the survival of the official language community, which is itself a true beneficiary under section 23 of the Charter (Arsenault-Cameron at paragraph 29; (CSF de la C-B 2016, at paragraph 367). Minority language schools provide a foundation for other institutions and community leadership, counterbalancing the influence of the majority language (CSF de la C-B 2016 at paragraph 368). They also serve as a primary site for socializing children into the French language and culture, and play an essential role ensuring children experience additive, rather than subtractive, bilingualism (CSF de la C-B 2016 at paragraph 368).

5. An individual and collective right

Unlike other provisions of the Charter, section 23 is more akin to a right than a freedom (CSF de la C-B 2016 at paragraphs 411 and 419). Section 23 guarantees both a social and collective right and a civil and individual right (Solski at paragraph 33). Rights under section 23 are conferred individually on parents belonging to a minority language group. The enjoyment of these rights is not linked to the will of the minority group to which they belong (Reference re Public Schools Act (Man.) at paragraph 46).

6. Interpretation of section 23

The fact that constitutional language rights are the result of a political compromise is not a characteristic unique to language rights and does not affect the scope of those rights (Beaulac, (R. v. Beaulac, [1999] 1 S.C.R. 768) at paragraph 24).

Like other provisions of the Charter, section 23 has a remedial aspect. It is therefore important to understand the historical and social context of the situation to be redressed, including the reasons why the educational system was failing to meet the actual needs of the official language minority in 1982 and why it may still fail to meet those needs today. Clearly, the importance of language and culture in the context of education, and the importance of official language minority schools to the development of the official language community, must be taken into account in examining the actions taken by government to meet the demand for services. As the Supreme Court of Canada recently explained in R. v. Beaulac, [1999] 1 S.C.R. 768, “… language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.” A purposive interpretation of section 23 rights is based on the true purpose of redressing past injustices and providing the official language minority with equal access to high quality education in its own language, in circumstances where community development will be enhanced (Arsenault-Cameron at paragraph 27; Doucet-Boudreau at paragraph 23).

Section 23 is to be interpreted purposively, remedially and contextually (CSF de la C-B at paragraph 134). Courts must seek an interpretation of section 23 that is remedial and alive to background context (CSF de la C-B at paragraph 132). Because the interpretation of section 23 is remedial and contextual, it will inevitably involve some balancing of interests, and sensitivity to the unique background and situation of the minority language group in each province (CSF de la C-B at paragraph 133).

Because section 23 of the Charter is national in scope, the Supreme Court of Canada has interpreted the rights it confers uniformly for all provinces (Quebec Protestant School Boards (A.G. (Que.) v. Quebec Protestant School Boards, [1984] 2 S.C.R. 66) at page 79; Mahe at paragraph 35; Reference re Manitoba 1985 at paragraph 40; Arsenault-Cameron at paragraph 26; Solski at paragraph 21).

This is not to say however that the unique historical and social context of each province is irrelevant; rather, it must be taken into account when provincial approaches to implementation are considered. Thus, the implementation of section 23 of the Charter must take into account the very real differences between the situations of the minority language community in Quebec and the minority language communities of the other provinces (Solski at paragraphs 21 and 34). The unique historical and social context of each province must also be taken into account in situations where there is need for justification under section 1 of the Charter (Solski at paragraph 21).

Analysis

Wording and restrictions

1. General conditions

(i) Citizenship

Section 23 of the Charter reserves this right to Canadian citizens only (CSF de la C-B at paragraph 579). A teleological approach cannot change the precise words of section 23 which is clear with respect to the requirement of citizenship, as opposed to section 7 which is applicable to “everyone” (CSF de la C-B at paragraphs 577-578). The children of immigrant rights holders are not to be included among the children that can reasonably be expected to attend the programme (CSF de la C-B at paragraph 579).

(ii) Parental authority

The rights set out in section 23 are granted to parents.

The question of who is or is not a child’s parent, and what say, if any, a parent has in the education decisions of his or her children should be answered by applying the law of the jurisdiction where the parent resides, given that education is a provincial jurisdiction.

Cultural and linguistic factors are considered in determining the best interests of the child in the context of custodial litigation (Bastarache (Mark Power and Pierre Foucher, “Language Rights and Education” in Michel Bastarache, ed., Language Rights in Canada, Cowansville, Éditions Yvon Blais, 2004) at page 384). In determining the conditions of an order for custody, the children’s language of education must be taken into account in an assessment of the best interests of the children. The court should be particularly sensitive to the language of education in circumstances where there is only one Francophone parent and the English-speaking parent has been granted custody. In such circumstances, there is necessarily less contact with the French-speaking parent and the linguistic and cultural environment of the children is likely to become that of the linguistic majority. In a linguistic minority environment, homogeneous French-language schools are generally preferable to French immersion programs for ensuring that both languages, namely, French and English, are maintained at the highest level (Perron (Perron v. Perron, 2012 ONCA 811) at paragraphs 40, 42-44)

Section 23 does not provide authority for school boards to admit children whose grandparent is a rights holder (Yukon (Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), [2015] 2 S.C.R. 282) at paragraph 74).

(iii) Residence

To benefit from section 23, a parent must “reside” in a province or territory. The scope of section 23 therefore goes beyond the geographical boundaries of a school board’s jurisdiction as such boundaries must never hinder the exercise of the rights set out therein (Bastarache at page 684; Mahe at page 386).

For some, in the absence of a legal definition, or to complete an existing definition, the notion of residence must be defined under the common law, or in Quebec, under the rules of civil law (Bastarache at page 684).

A province has no duty to satisfy the minority language education entitlements of parents who reside in another province (Conseil Scolaire Fransaskois (2013 SKCA 35 at paragraph 51).

Moreover, section 23 does not provide for a minimum period of residence in a province or territory to benefit from this right.

 (iv) Primary and secondary instruction

Section 23 only grants eligible parents the right to have their children receive their primary and secondary school instruction in the official language of the minority. It specifically does not cover pre-primary or post-secondary education. There is no basis upon which the section can be interpreted to include pre-school or daycare; the drafters of the Charter clearly excluded those rights (CA Yellowknife, (Northwest Territories (A.G.) v. Association des parents ayants droit de Yellowknife, 2015 NWTCA 2) at paragraph 81).

However, the scope of what is covered by “primary education” might evolve from time to time. If the government legislated pre-kindergarten (or part-time kindergarten) as part of primary education for the majority language schools, it is likely that similar levels of education would be protected under section 23 for the minority language schools. The superior courts would be the ultimate arbiter should any dispute exist, but so long as the decisions were made in good faith, and were within a constitutionally acceptable meaning of “primary”, judicial intervention would not be warranted (CA Yellowknife, at paragraph 80).

In CSF de la C-B, the Court concluded that early childhood education programs are not included within “primary … school instruction” in section 23 of the Charter (CSF de la C-B at paragraph 1866). The Province had implemented an education system in which primary education begins with Kindergarten, and ends with Grade 12; while the Province could extend the meaning of primary and secondary education to include early childhood education services, it has no obligation to do so (CSF de la C-B at paragraph 1869). This determination includes two exceptions: the “Strong Start” program and an allowance of “NLC” space for community service providers (CSF de la C-B at paragraphs 1872-1873).

(v) Geographical delimitations and entities responsible for applying section 23

Section 23 applies to the provinces, given their constitutional jurisdiction over education (section 93, C.A 1867). With regard to the territories, section 23 applies to the Northwest Territories and the Yukon pursuant to section 30 of the Charter. While it does not specify whether section 23 applies to Nunavut, Bastarache among others believe it does.

In fact, paragraphs 23(1)(a) and (b), and 23(3)(a) refer to the English or French linguistic minority population “of the province,” and the latter also speaks of residence “in a province”. Also paragraph 23(3)(b) refers to the number of children “in the province.” Subsection 23(2), in contrast, refers to children receiving primary or secondary school instruction in English or French “in Canada,” which clearly encompasses the three Territories (Nunavut, Yukon and Northwest Territories). According to section 30 of the Charter, a reference to the provinces is deemed to include a reference to the Yukon and the Northwest Territories. According to Bastarache, one would not be extrapolating the purpose of section 23 at all if one were to say that subsection 23(1) and paragraph 23(3)(a) also apply to the official linguistic minorities of Nunavut. The fact that section 30 covered the two existing Territories at the time section 23 came into force, that subsection 23(2) applies to all of Canada, and that paragraph 23(3)(b) does not refer explicitly to “provinces” suggest that Nunavut is subject to section 23 (Bastarache at pages 389-390).

Section 23 binds school boards just as it binds the province (CSF de la C-B at paragraph 6346). Provinces have mechanisms in place to ensure the good governance of school boards (Rose-des-vents (L’Association des parents de l’école Rose-des-Vents v. Conseil scolaire francophone de la Colombie-Britannique, 2015 SCC 21 at paragraph 62).

A school transportation consortium is also subject to section 23 of the Charter. The consortium is, for all intents and purposes, a subsidiary of the entity related to the school board. In carrying out the management and control of school transportation, it carries out a government function delegated by the school board (Clermont (Clermont v. Consortium de transport scolaire d’Ottawa, 2014 ONSC 948) at paragraph 13).

(vi) The linguistic minority

Section 23 refers specifically to the linguistic minority of a province. Hence, it does not matter whether a minority language community may, on the local or regional level, form a majority, provided it is a minority in the province.

(vii) Private schools

Section 23 speaks of minority language instruction provided out of public funds. In Canada, there are also private schools that charge tuition fees for primary and secondary instruction; however, section 23 does not grant eligible parents a constitutional right to have their children educated in such institutions.

Does registration in a private school open the door to schools covered by section 23?

To a certain extent, the Solski and Nguyen decisions show that when certain conditions are met, attending a minority language private school could open access to schools covered by section 23. However, when Quebec schools are established primarily to bring about the transfer of ineligible students to the publicly funded English-language system, and the instruction they give in fact serves that end, it cannot be said that the resulting educational pathway is genuine. It is necessary to review the situation of each institution, including the nature and history of the institution and the type of instruction given there, as well as the nature of its clientele and the conduct of individual clients (Nguyen (Nguyen v. Quebec (Education, Recreation and Sports), [2009] 3 S.C.R. 208) at paragraphs 36 and 44). The Supreme Court also warned against artificial educational pathways designed to circumvent the purposes of section 23 and create new categories of rights holders at the sole discretion of the parents (Nguyen at paragraph 29). See section below titled “Children’s instruction.”

(viii) Beneficiaries of rights

The rights holders under section 23 of the Charter are not the children, even though the qualifying standard is the language of instruction of the child; they are parents who are Canadian citizens who meet one of the three conditions set out in section 23 (Van Vlymen (Van Vlymen v. Canada (Solicitor General) (2004), 189 C.C.C. (3d) 538) at paragraph 16; Solski at paragraphs 29, 32).

This specific classification lies at the very heart of the provision, since it is the means chosen by the framers to identify those entitled to the rights they intended to guarantee. A legislature cannot by an ordinary statute validly set aside the means so chosen by the framers and affect this classification. Still less can it remake the classification and redefine the classes (Quebec Protestant School Boards at page 80). A provincial government that offered all citizens equal access to schools intended for minority language groups would be failing in its duty to “do whatever is practically possible to preserve and promote minority language education” (Arsenault-Cameron at paragraph 26; Gosselin at paragraph 32).

There are three categories of rights-holders: those who are entitled to rights by virtue of their mother tongue, their education or their children’s education (CSF de la CB, 2016, at paragraph 479).

The three categories are set out below:

2. Specific categories of rights holders

(i) First language learned and still understood

According to paragraph 23(1)(a), parents whose first language learned and still understood (or mother tongue) is that of the French or English linguistic minority of the province in which the parent resides have the right to have their children receive primary and secondary school instruction in that language.

However, due to section 59 of the Constitution Act, 1982, paragraph 23(1)(a) does not apply in Quebec.

(ii) Parents’ language of instruction

According to paragraph 23(1)(b), parents who have received their primary school instruction in Canada in English or French and reside in a province where this language of instruction is that of the French or English linguistic minority population of that province, have the right to have their children receive primary and secondary school instruction in that language.

The words “have received” in paragraph 23(1)(b) connote a reference to one’s “school record” or “educational experience” or “ parcours scolaire.” Paragraph 23(1)(b) and subsection 23(2) have the same purpose and must be interpreted in the same way (Solski at paragraph 32).

(iii) Children’s instruction

According to subsection 23(2), parents whose child has received or is receiving primary or secondary school instruction in French or English in Canada and this language of instruction is that of the French or English linguistic minority population of the province in which they reside, have the right to have all their children receive primary and secondary school instruction in the same language.

Subsection 23(2) relates to the language of instruction of the child rather than that of the parents, although it is in actual fact the parents who are the holders of the guaranteed rights (Nguyen at paragraph 24).

Moreover, the rights provided for in subsection 23(2) apply regardless of whether the parents or the eligible children are members of the French or English minority linguistic community or speak one of these languages in the home, or even have a working knowledge of the protected minority language (Nguyen at paragraph 27). Change of residence from one province to another is not among the conditions for exercising the guaranteed rights either (Nguyen at paragraph 27).

The words “has received” used in the expression “has received or is receiving” in subsection 23(2) connote a reference to the “school record” or “educational experience” or “parcours scolaire.” (Solski at paragraph 32). Provincial or territorial governments are entitled to verify that registration and overall attendance in the program, as well as the past and present educational experience of the child, are consistent with participation in the category of beneficiaries defined in subsection 23(2) of the Charter (Solski at paragraph 48).

The global assessment of the child’s educational pathway, which focuses on quality, is based on a set of factors that are of varying importance depending on the specific facts of each case. These factors include the following: a) time spent in different programs of study, b) at what stage of the child’s education the choice of language of instruction was made, c) what programs are or were available, and d) whether learning disabilities or other difficulties exist (Nguyen at paragraph 29; Solski at paragraph 33).

(a) Time spent in each program

Subsection 23(2) of the Charter does not specify a minimum amount of time a child would have to spend in a minority language education program in order to benefit from the constitutional rights. However, a short period of attendance at a minority language school is not indicative of a genuine commitment and cannot on its own be enough for a child’s parent to obtain the status of a rights holder under section 23 of the Charter. In this regard, the Supreme Court has warned against artificial educational pathways designed to circumvent the purposes of section 23 and create new categories of rights holders at the sole discretion of the parents (Nguyen at paragraph 29).

Although it is not a conclusive factor, it is nonetheless important to consider the time a child spent in the minority language program, cumulatively, at the primary and secondary levels, where relevant, when determining if that child’s total educational experience is sufficient to meet the requirements of subsection 23(2) of the Charter (Solski at paragraph 39).

Time spent in the majority language educational system ought not to be considered as indicative of a choice to adopt the majority language as the child’s language of instruction when a minority language school was not available. In this regard, the geographical context is always important (Solski at paragraph 43).

(b) Stage of education at which time the choice of language of instruction was made

What was the first language of instruction? This may be an indicator of intention to permanently adopt one language rather than another. Choosing the minority language as one enters secondary school may also evidence a stronger, more informed commitment to that language (Solski at paragraph 42).

(c) What programs are or were available?

Under a purposive interpretation of subsection 23(2) of the Charter, the time spent in the majority language educational system, when a minority language school was unavailable, ought not to be considered as indicative of a choice to adopt the majority language as the child’s language of instruction. One aspect of the purpose of subsection 23(2) is to accommodate mobility. This purpose would be frustrated and parents and their children, as well as the minority language community as a whole, would be unjustly penalized if children were barred from continuing with instruction in the minority language once they moved to an area in which it was available again simply because they temporarily lived in an area in which it was unavailable. There again it is obvious that the situation of students moving to Quebec will be unique, the availability of instruction in English in the territories and other provinces being unquestioned. As mentioned earlier, the geographical context is always important (Solski at paragraph 43).

It is also important to consider the availability of minority language education programs from a socio-cultural perspective and with respect to the circumstances of each child. When considering the situation in a province other than Quebec, one must remember that a child could have been sent to a majority language school by assimilated parents who then, in the latter stages of the child’s educational experience, have changed their minds and sent the child to a minority language school in order to help the child reintegrate the minority language community and adopt its culture. It may be that the choice to enroll the child in a minority language education program, even though the program may have been available throughout the child’s educational experience, did not become a viable choice until the child’s assimilated parents decided to help their child reforge a connection with the minority language community and culture. In this context, the remedial purpose of subsection 23(2) is engaged, and, as stated above, this right must be interpreted so as to facilitate the reintegration of children who have been isolated from the cultural community the minority school is designed to protect and develop (Solski at paragraph 44).

However, the framers did not intend, in enacting section 23, to re-establish freedom of choice of the language of instruction in the provinces. Any system created for the sole purpose of artificially qualifying children for admission to a minority-language school should be rejected (Nguyen at paragraph 24; K.K. (K.K. v. Québec (Ministre de l’Éducation, du Loisir et du Sport), 2010 QCCA 500) at paragraph 7).

When schools in Quebec are established primarily to bring about the transfer of ineligible students to the publicly funded English-language system, and the instruction they give in fact serves that end, it cannot be said that the resulting educational pathway is genuine. However, it is necessary to review the situation of each institution, as well as the nature of its clientele and the conduct of individual clients (Nguyen at paragraphs 36, 44).

(d) Existence of learning disabilities or other difficulties

If a child is having difficulty learning in the majority language it would be unacceptably punitive to force that child to continue in the majority language (Solski at paragraph 45).

(iv) Children of parents not entitled under section 23

Section 23 is a comprehensive code that protects specific and well-defined categories of right holders. This article reflects a carefully formulated political compromise, which protects children whose first language learned and still understood is a minority language (CA Hay River (Northwest Territories (A.G.) v Commission Scolaire Francophone, Territoires du Nord-Ouest, 2015 NWTCA 1) at paragraphs 25, 26; Gosselin at paragraphs 2, 21). This section confers individual rights and its implementation depends on the number of qualified students. The purpose of section 23 is not to authorize the children of persons who are not entitled persons to learn a second language. Such an interpretation would have the effect of distorting the object and purpose of section 23 and blurring the very clear distinction between the different categories of rights holders protected by the Constitution. These rights do not benefit grandchildren or “all descendants”, but only “children” (CA Hay River, paragraphs 25-26).

It is possible for provincial or territorial governments to give school boards or boards broad powers of control, including the admission of non-rights holders. However, if the province does not delegate this power to the Commission, the Commission does not have the power to admit unilaterally children of non-rights holders (Yukon at paragraph 74, CA Hay River at paragraphs 21-23, CSF de la C-B at paragraph 765). Section 23 does not require the provinces to enact legislation enabling school boards to admit non-entitled parties (CSF de la C-B, at paragraph 751).

The rights granted by subsection 23(2) apply regardless of whether the parents or eligible children are members of either the French or English minority community, or speak one of these languages in the home, or even have a working knowledge of the protected minority language (Nguyen at paragraph 27).

If a non-rights holder is admitted to a minority official language school, the child’s siblings have this right under subsection 23(2) of the Charter. Even though the overriding purpose of section 23 is the protection of the language and culture of the linguistic minority through education, this does not preclude interpreting subsection 23(2) according to its plain meaning, even if this means that rights accrue to persons who are not members of the linguistic minority. The more fluency there is in Canada’s official languages, the more opportunity there is for minority language groups to flourish in the community (Abbey (Abbey v. Essex County Board of Education (1999), 42 O.R. (3d) 481) at pages 488-489).

(a) Application: the “sliding scale”

Section 23 establishes a “sliding scale” approach for minority-language education rights. The approach determines the scope of the rights recognized in a particular case, with paragraph 23(3)(b) indicating the upper level of this range and the term “instruction” in paragraph 23(3)(a) indicating the lower level. The idea of a sliding scale is simply that section 23 guarantees whatever type and level of rights and services is appropriate in order to provide minority language instruction for the particular number of students involved (Mahe at paragraph 39, CSF de la C-B at paragraph 782). As a consequence, the sliding scale is based on the number of children of eligible parents.

Thus, section 23 of the Charter provides individuals with a right to French first language educational instruction, but, unlike most Charter rights, one individual alone cannot enforce his or her right. Right-holders must act collectively to ensure they can individually benefit from the exercise of their rights (Buckland (Buckland v. Prince Edward Island, 2004 PESCTD 66) at paragraph 51).

The “numbers warrant” provision requires, in general, that two factors be taken into account in determining what section 23 demands: (1) the services appropriate, in pedagogical terms, for the numbers of students involved; and (2) the cost of the contemplated services. The first, pedagogical requirements, recognizes that a threshold number of students is required before certain programmes or facilities can operate effectively. The remedial nature of Article 23 suggests that pedagogical considerations will weigh more heavily than financial requirements when determining whether the number of pupils justifies the provision of the services concerned (Mahe at paragraph 79, Arsenault-Cameron at paragraph 30. CSF de la C-B at paragraph 787).

Plaintiffs must establish their rights under section 23 of the Charter, including the sufficiency of numbers. The province has the duty to actively promote educational services in the minority language and to assist in determining potential demand. In CSF de la C-B, the Court also determined that the CSF is entitled to receive enrolment projections that are equivalent to what is provided to the majority; The current system, which provides the CSF with inaccurate and irrelevant projections while the majority receives accurate and helpful ones, is contrary to section 23 of the Charter (CSF de la C-B at paragraph 6650). The potential demand for services could be determined by inferring that the established demand would increase after the services actually became available (Arsenault-Cameron at paragraphs 34 and 59).

An interprovincial agreement to bring students from different provinces to a sufficient number meets the requirements of subsection 23(1)(b) of the Charter. Such arrangements constitutes a novel solution and extends flexibility to section 23 of the Charter to effect its purpoose (Chubbs, (Chubbs v. Newfoundland & Labrador, 2004 NLSCTD 89) at paragraph 68).

The “sliding scale” approach to section 23 of the Charter means that the numerical standard will have to be clarified by examining the facts of each situation before the courts. The relevant figure for section 23 purposes is the number of persons who will eventually take advantage of the contemplated programme or facility, that is a number approximately between the known demand for the service and the total number of persons who potentially could take advantage of the service (Mahe, paragraphs 78 And 81, Reference re Public Schools Act (Man.) at paragraph 34, Arsenault-Cameron at paragraph 32, CSF de la C-B at paragraph 479).

The determination of the specific number of pupils involved in the application of section 23 of the Charter is contextual. In some circumstances this number could be much higher while in another a lesser number might be appropriate. Canada is such a large and diverse country that no one solution or circumstance will apply to all regions. To determine whether or not the numbers warrant, it is necessary to review each circumstance on an individual basis within its own geographical, social and cultural context (Chubbs at paragraph 18; CSF de la C-B, at paragraph 480).

3. Guaranteed rights

The right provided in section 23, that is, the right to instruction in the language of the minority, can be broken down into four components, whose scope will vary in relation to the sliding scale described above: the right to instruction, to facilities, to a measure of management and control, and to an education of a quality comparable to that provided to the majority.

At a minimum, section 23 will provide for a right to education at the elementary and secondary levels in the language of the minority, and this right will be increased according to the number, according to the criterion of the sliding scale. At the upper limit of the sliding scale, numbers will warrant the provision of the highest level of services to the minority language community. In such cases, rights holders are entitled to full educational facilities that are distinct from, and equivalent to, those found in the schools of the majority language group. The upper threshold of the sliding scale can include separate minority language school boards (Rose-des-vents, at paragraph 29) In CFS de la C-B, the Court introduces a right between the right to education and the right to equivalent institutions: the right to proportional services (CSF de la C-B at paragraph 2126) The proportionality analysis should mirror the perspective used in the equivalence analysis: it should adopt a substantive equivalence analysis, from the perspective of the reasonable rights holder parent, while making a local comparison of the global educational experience (CSF de la C-B at paragraph 2124). When examining the question of proportionality, the question is whether a reasonable rights holder would find a minority school to be meaningfully disproportionate to the facilities offered to the majority, based on a local comparison of the global educational experience (CSF de la C-B at paragraph 853). The question for section 23 is whether the global educational experience meets the appropriate standard, not whether one aspect of that education meets an appropriate standard (CSF de la C-B at paragraph 4962).

Section 23 carries limits that require governments to do whatever is practical in the circumstances to preserve and promote minority language education, and the Government is not required to provide services that go beyond what is envisioned by the rights created in the text of section 23 (CSF de la C-B at paragraphs 420-421 et 6504).

The other components of the right provided for in section 23 are as follows.

(i) The right to instruction

Section 23 stipulates as a minimum a right to primary and secondary instruction in the minority language (paragraph 23(3)(a)).

In addressing pedagogical requirements specifically, it is important to consider the value of linguistic minority education as part of the determination of the services appropriate for the number of students. The pedagogical requirements established to address the needs of the majority language students cannot be used to trump cultural and linguistic concerns appropriate for the minority language students (Arsenault-Cameron at paragraph 38).

Immersion programs in which much or, at specific times, all of the instruction is given in the minority language do not, for the purpose of section 23, guarantee minority language instruction (Re Minority Language Educational Rights (Re Minority Language Educational Rights (1988), 49 D.L.R. (4th) 499 (C.A. P.E.I.)) at pages 526-527). For the purposes of section 23, a minority language education program may include a program in which all subjects are taught in the language of the minority, except for the teaching of other languages. This right also goes beyond the language of instruction. Section 23 ensures the creation of a program that is appropriate to the needs of the minority and reflects its values and culture, including extracurricular and recreational activities (Bastarache, at pages 715-716; Public Schools (Man.) at pages 854-55).

The integrity of minority schools is essential to their operation. Minority language education is meant to take place in the language of the minority. It is not intended to teach outsiders the language of the minority (CSF de la C-B at paragraph 699).

(ii) The right to facilities funded from public funds

Provinces have a positive duty to ensure that minority language educational facilities are provided out of public funds where the numbers so warrant. Those rights temper the Province’s broad, plenary jurisdiction over education (CSF de la C-B at paragraph 373). In accordance with the sliding scale, it will not always be necessary for instruction to be given in a separate building reserved for teaching purposes. Sharing of educational institutions may be necessary when numbers are low. However, the premises frequently used by the minority must generally be distinct from those of the majority so as not to cause a significant erosion of the linguistic homogeneity of minority education (Bastarache at page 719, CA Yellowknife (Northwest Territories (A.G.) v. Association des parents ayants droit de Yellowknife, 2015 NWTCA 2) at paragraphs 121 et 720).

It seems reasonable to infer that some distinctiveness in the physical settings is required to successfully fulfil this role (Mahe at paragraph 50; Reference re Public Schools Act (Man.) at paragraph 25).

The financial impact of the provision of specific facilities will vary from region to region. It follows that assessment of what will constitute appropriate facilities should only be undertaken on the basis of a distinct geographical unit within the province (Reference re Public Schools Act (Man.) at paragraph 29).

Both a textual and purposive analysis of subsection 23(3) of the Charter indicate that instruction should take place in facilities located in the community where those children reside. The determination of the appropriate area for the provision of minority language instruction and facilities is something that has to be decided in each case. The section 23 standard favours community development. The definition of the region is subject to the exclusive powers of the minority over the management and control of minority language instruction and the linguistic minority’s facilities, subject to objective provincial norms and guidelines that are consistent with section 23 (Arsenault-Cameron at paragraphs 56-58).

At the upper end of the variable scale, rights holders must have complete educational institutions, distinct from those offered to the linguistic majority, but of equivalent quality (Rose-des-vents, at paragraph 29) (also see “Quality of education”, below).

Section 23 does not protect the construction of spaces for community purposes; it only protects places devoted to teaching in the language of the minority. School buildings may serve important community purposes (community gathering places, daycare, etc.), but they are not protected by section 23 and cannot give rise to a section 23 remedy. However, it should be noted that the Supreme Court of British Columbia determined that the minority school board (the CSF) had the right to construct “NLC” spaces (spaces for community activities) during the construction of new schools (CSF de la C-B at paragraph 1873). School boards cannot divert resources for minority-language instruction for community purposes and then state that educational institutions are inadequate or lack space (CA Yellowknife at paragraph 87).

(iii) The right to management and control

To ensure that schools can fulfill their role enhancing the vitality of the minority language community, section 23 guarantees the minority language community a degree of management and control over minority language educational facilities (CSF de la C-B at paragraph 373). Where the numbers warrant, section 23 of the Charter gives minority language parents a right of management and control over the educational facilities provided for them. Such management and control are vital to ensure that their language and culture flourish (Mahe at paragraph 51).

Empowerment is essential to correct past injustices and to guarantee that the specific needs of the minority language community are the first consideration in any given decision affecting language and cultural concerns. The representatives of the official language community have the right to a degree of governance of these facilities, independent of the existence of a minority language school board (Arsenault-Cameron at paragraphs 42, 45).

The right to management and control is exercised over those aspects of the educational institutions that are at the core of the board’s mandate: minority language and culture (CSF de la C-B at paragraph 373). In order to remedy past injustices, the minority community has the right to exclusive control over aspects of minority language instruction that are relevant to or have an impact on language and culture (CSF de la C-B at paragraph 392). The determination of the relevance of an aspect to the minority language and culture is contextual (CSF de la C-B at paragraphs 393-395) and must consider whether the aspect in question relates to the pursuit of the restorative objectives of section 23 (CSF de la C-B at paragraph 446). Where an aspect of the instruction falls within the minority’s exclusive right to management and control, the minority school board is entitled to some degree of deference (CSF de la C-B at paragraph) and the province should not interfere (CSF de la C-B at paragraph 446).

For example, the right to determine what transportation times are appropriate falls within the minority’s jurisdiction in most instances (CSF de la C-B at paragraph 1539). In addition, the linguistic minority may determine what funds in its budget should be allocated to school transportation (CSF de la C-B at paragraphs 1761 and 1791). The fact that a minority school board is located in leased premises does not deprive it of its right to management and control (CSF de la C-B at paragraph 5592), but the school board must comply with the provincial standards in this area and not acquire extravagant premises (CSF de la C-B at paragraph 5603). The operation of schools in leased spaces does not necessarily result in a determination that the minority school board is deprived of its right to manage and control (CSF de la C-B at paragraph. 5687). The decision to create a system where CSF leases establishments belongs to the province by virtue of its jurisdiction over education (CSF de la C-B at paragraph 5777). While the province is constitutionally obliged to finance minority school leases, the minority school board cannot require funding to come from a specific category of the government budget (CSF de la C-B at paragraph 5802).

The Province of British Columbia’s policy to compensate majority language school boards for the transfer of surplus schools to the CSF is constitutionally valid and does not infringe on the CSF’s right to management and control (CSF de la C-B at paragraph 6230). The deregulation of school disposals in 2002 was found to be consistent with section 23 and did not deprive the minority-language school board (the CSF) of its right to management and control (CSF de la C-B at paragraph 6263). On the other hand, a freezing of funds policy was found to be contrary to section 23 as it encroached on the right of the minority school board to determine when and where new facilities were required (CSF de la C-B at paragraphs 5920, 5924, 5928 and 5949).

The right to management and control is different from the right to funding. Funding is indeed required for programs and services to be offered; management and control, as it relates to funding, means school boards decide where and how to spend such funds. Provincial and territorial governments are not obligated to fund “any and all programs and services” a school board decides is necessary. It is up to school boards to “exercise their right to management and control within the level of funding fixed by the Government, as long as that level complies with the Government’s funding obligation” (Conseil scolaire fransaskois 2014, (Conseil scolaire fransaskois v. Government of Saskatchewan (2014 SKQB 285) at paragraph 103).

Requiring a minority-language school board to prioritize projects for which it seeks funding is not contrary to section 23 of the Charter; rather, it furthers its right to management and control (CSF de la C-B at paragraph 6500). Similarly, requiring the preparation of a “PIR” (a document justifying a project proposed by the school board) falls within the province’s jurisdiction and does not encroach on the minority’s right to manage and to the control (CSF de la C-B at paragraphs 6555-6556).

The measure of management and control required may, in some circumstances and depending on the number of students to be served, warrant an independent school board. Where numbers do not warrant granting this maximum level of management and control, however, they may nonetheless be sufficient to require linguistic minority representation on an existing school board. In this latter case: (1) the representation of the linguistic minority on local boards or other public authorities which administer minority language instruction or facilities should be guaranteed; (2) the number of minority language representatives on the board should be, at a minimum, proportional to the number of minority language students in the school district, i.e., the number of minority language students for whom the board is responsible; (3) the minority language representatives should have exclusive authority to make decisions relating to the minority language instruction and facilities, including: (a) expenditures of funds provided for such instruction and facilities; (b) appointment and direction of those responsible for the administration of such instruction and facilities; (c) establishment of programs of instruction; (d) recruitment and assignment of teachers and other personnel; and (e) making of agreements for education and services for minority language pupils (Mahe at paragraph 61).

Where a minority language school board has been established so as to meet the requirements of section 23 of the Charter, it is the school board’s responsibility, because it represents the official language minority community, to decide on what is most appropriate, from the perspective of language and culture. The minority language school board has the exclusive power to decide how it will provide services to the minority, in compliance with the legitimate limits imposed by the province, as its decisions are also subject to the individual personal rights covered by section 23. In a given situation, those with rights accorded by section 23 may challenge a decision by a minority language school board (Arsenault-Cameron at paragraphs 43, 62).

Provincial and territorial governments are permitted to provide minority groups with higher levels of management and control than that provided for in section 23. Thus, a province or territory may delegate to a school board the function of setting criteria for the admission of pupils beyond the categories of entitled persons provided for in Article 23. By this delegation, a school board of the linguistic minority may be given a wide discretionary power to admit children of non-entitled persons. Several provinces have thus extended the rights provided for in section 23. In the absence of such a delegation, a school board does not have the power to unilaterally set admission criteria different from those established by the province or territory. Section 23 does not require the provinces to enact legislation enabling school boards to admit non rights-holders (CSF de la C-B at paragraph 751). The school board may, however, argue before the courts that the province is not in compliance with section 23 through its legislation and regulations (Yukon at paragraphs 70 and 74)

(iv) Quality of education

According to the Supreme Court, in the context of section 23, it is usually not useful to refer to section 15, as section 23 establishes a comprehensive code of minority language instruction rights, which gives minority French- and English-language communities special status (Mahe at paragraph 45; Solski at paragraph 20; Nguyen v. Quebec, 2009 SCC 47 at paragraph 25). Practical reasons as well as legal principle support the conclusion that section 23 minority language education rights cannot be subordinated to the equality rights guaranteed in subsection 15(1) of the Charter (Gosselin at paragraph 34). That said, the principle of equality is, of course, what underlies section 23.

In fact, once it is established that the number of children warrants the highest level of services, section 23 requires that the quality of the services be essentially equivalent to that of the services provided to the students of the linguistic majority (Rose-des-vents at paragraph50, CSF de la C-B at paragraph 830). Section 23 is based upon the premise that substantive equality requires official language minorities to be treated differently, if necessary, depending on their particular situation and specific needs, in order to guarantee them a standard of education equivalent to the official language majority’s (Arsenault-Cameron at paragraphs 31 and 48; Rose-des-vents at paragraph 33; CSF de la C-B at paragraph 6646). The purpose of this section is not to reinforce the status quo by adopting a formal approach to equality that would primarily aim to treat the majority and minority official language groups in the same way. The use of objective standards to assess the needs of children of the linguistic minority, mainly by reference to the educational needs of the children of the linguistic majority, does not take into account the particular requirements of the holders of the rights guaranteed by section 23 (Arsenault-Cameron at paragraph 31; Gosselin at paragraph 32).

To give effect to the rights guaranteed by section 23, the emphasis should be on real equivalence rather than on per capita costs and other formal equivalence indicators (Rose-des-vents at paragraph 33). Funding for minority schools must be at least equivalent, in proportion to the number of pupils, to the funds allocated to majority schools (Mahe, paragraph 63). However, no specific amount per person will meet the requirements of section 23 in a particular case. What is most important is that the educational experience of the children of rights holders guaranteed by section 23 at the upper limit of the variable scale is of a quality truly similar to the educational experience of the students of the linguistic majority (Rose-des-vents at paragraph 33).

The right to establishments equivalent to those provided by the majority includes the right to minority board premises equivalent to those of the majority (CSF de la C-B at paragraph 5436). Even so, in CSF de la C-B, the Court found that the minority school board’s facilities did not play an essential symbolic role (CSF de la C-B at paragraph 5439).

(a) Measure of equivalence between the minority and the majority

In assessing equivalence between minority and majority schools, the court must take into account educational choices from the point of view of the holders of the rights guaranteed by section 23. Would reasonable parents who hold these rights be dissuaded from sending their children to a minority language school because the school is truly inferior to a majority language school where they can enroll? If so, the purpose of this restorative provision is threatened. If the overall educational experience is sufficiently greater in the schools of the linguistic majority, this may weaken parents’ willingness to have their children educated in the language of the minority, which, in turn, risks assimilation (Rose-des-vents at paragraph 35).

The comparison group that will generally be appropriate for the assessment of the actual equivalence of a minority language school will be the neighboring schools of the linguistic majority that represent a realistic alternative for right holders. The precise geographic extent of the comparator group and the relative usefulness of such comparisons may vary according to circumstances (Rose-des-vents at paragraph 37).

The comparative factors for equivalence analysis are physical facilities, quality of instruction, educational outcomes, extracurricular activities, travel time, and other factors that may influence the choice of parents. These factors should not be considered in isolation; they are examined together to decide whether, overall, the educational experience is inferior to the point of discouraging rights holders from enrolling their children in a minority language school (Rose-des-vents at paragraphs 39-40). In CSF de la C-B, the Court examined, among other things, student-teacher ratios, technology and graduation rates (CSF de la C-B at paragraph 2077).

The lack of reasonable accessibility, including difficulties in transporting to a minority school, may lead to a conclusion that the rights guaranteed by section 23 have been denied. However, the difference in the accessibility of a minority school to that of the majority must be sufficiently large to affect the right to education (Clermont, paragraphs 10, 15-16).

It is not appropriate for provincial or territorial governments to raise issues related to practical considerations or costs in the analysis of evidence-based equivalence between linguistic minority schools and those of the linguistic majority. Costs and practical considerations are relevant in determining the level of service to be provided to a group of rights holders according to the variable scale (see “Application: the sliding scale” above), but once this level is established, practical and financial considerations cannot be considered again in the equivalence analysis (Rose-des-vents at paragraph 46; CSF de la C-B at paragraph 864).

In order to provide substantially equivalent funding provided for in any given school year, it is necessary to maintain the comparative difference between minority French language school boards and majority Anglophone school boards, which also means inflation needs to be factored into governmental funding considerations. (Conseil scolaire fransaskois 2014, at paragraphs 158-159).

4. Other pertinent factors

(i) Role of the provinces and territories and the division of powers

Federalism plays an important role in the application of section 23 of the Charter. Each province or territory has a legitimate interest in the provision and regulation of educational programs in the language of the minority, because education is a provincial head of jurisdiction (Arsenault-Cameron at paragraph 53; Solski at paragraph 10). While recognizing the importance of language rights, the Charter also recognizes the importance of respecting the constitutional powers of the provinces. Pursuant to section 93 of the Constitution Act, 1867, the provincial legislatures have the power to enact laws relating to education (British Columbia evidence (Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2011 BCSC 1043; 2011 BCSC 1219; 2012 BCSC 582; 2012 BCCA 282) at paragraph 56, Rose-des-vents at paragraph 68.)

However, except with regard to Quebec and paragraph 23(1)(a) of the Charter, all provincial and territorial minority language education regimes must be consistent with the requirements of section 23 (Solski at paragraph 10). Thus, while the government should have the widest possible discretion in choosing the institutional means it will use to fulfill its obligations under section 23 of the Charter, the power of the Minister is limited by the remedial nature of section 23, the special needs of the minority language community, and the exclusive right of minority representatives to manage minority education and institutions (Mahe at paragraph 96, Arsenault-Cameron at paragraph 44). The province or territory can control the content and qualitative standards of educational programs for official language communities to the extent that they do not negatively affect the legitimate linguistic and cultural concerns of the minority (Arsenault- Cameron at paragraph 53).

Provincial jurisdiction over education under section 93 of the Constitution Act, 1867 is limited by section 23 of the Charter and subsection 93(1) of the Constitution Act, 1867. There are parallels between the rights given to the linguistic minority under section 23 and those guaranteed to denominational schools under section 93 (CSF de la C-B at paragraph 377). Section 23 limits the powers of the provinces in two ways: (1) the right to the management and control of the linguistic minority over certain aspects of the education system; and (2) the provincial government’s positive obligation to provide instruction services in the minority language (CSF de la C-B at paragraphs 380 and 444-446).

The provinces may regulate matters that do not relate to language and culture (for example, the right to impose taxes) and the province may make changes to school institutions by virtue of its jurisdiction over education. The linguistic minority is required to comply with provincial standards as long as they do not interfere in the linguistic and cultural affairs of the minority (CSF de la C-B at paragraph 5589).

In CSF de la C-B, the Court determined that the province must act as a defender of the minority school board in order to meet its duty to preserve and promote minority language instruction (CSF de la C-B at paragraph 5765). Its approach to remaining neutral and not assisting the CSO in negotiating leases is contrary to section 23 (CSF de la C-B at paragraphs 5763, 5948, 6355-6356 and 6825).

Although section 23 does not necessarily require the province to identify all surplus properties throughout the province to assist the minority school board in finding new schools, the province must be flexible in its approach to helping the minority school board at the identification stage of potential sites (CSF de la C-B, at paragraphs 6232-6325). The Province is required to do everything practical to help the minority school board acquire spaces and open programs for right holders, but section 23 does not require the adoption of a specific policy as to how this assistance should be offered (CSF de la C-B at paragraph 6347). That said, a policy that requires the school board to identify sites for its schools without the assistance of the province is contrary to section 23 of the Charter and the province’s duty to preserve and promote minority-language education (CSF de la C-B at paragraphs 6374 and 6425).

The province has jurisdiction to create a funding system that requires the minority school board to report and justify its costs (CSF de la C-B at paragraph 5891). The province can also set up a dispute resolution system to resolve disputes between different school boards (CSF de la C-B at paragraph 6816).

As the Charter sets out the minimum standards to which the law must comply, any law that does not comply with these standards contravenes the Charter and is presumed unconstitutional. Moreover, since the Charter only sets minimum standards, it does not prevent provincial or territorial legislation from going beyond the basic rights recognized in the Charter and offering other protections. A province or territory has the power to enact legislation that provides greater protections than those guaranteed by the Charter, which has been done in several provinces (Yukon, at paragraph 70).

Each province or territory exercises its discretion in light of its particular circumstances, obligation to respect the objectives of section 23 of the Charter and educational policies (Solski at paragraph 47).

(ii) Application of section 23 of the Charter in Quebec

Pursuant to section 59 of the Constitution Act, 1982, paragraph 23(1)(a) of the Charter does not apply in Quebec. It cannot be brought into force without the consent of the National Assembly or government of Quebec. To date, such consent has not been given. To that extent, section 59 limits the classes of rights holders in Quebec to those described in paragraph 23(1)(b) and subsection 23(2) of the Charter (Quebec Protestant School Boards at pages 82, 86, 87).

By so defining the classes of rights holders, which are in theory uniform throughout Canada but are limited in Quebec by the effect of section 59 of the Constitutional Act, 1982, the framers also rejected the freedom to choose the language of instruction in Quebec (Solski at paragraph 8).

In rejecting “free access” as the governing principle in section 23, the framers of the Charter were concerned about the consequences of permitting members of the majority language community to send their children to minority language schools. Within Quebec, the problem has the added dimension that what are intended as schools for the minority language community should not operate to undermine the desire of the majority to protect and enhance French as the majority language in Quebec, knowing that it will remain the minority language in the broader context of Canada as a whole (Gosselin at paragraph 31).

(a) Section 73 of Quebec’s Charter of the French Language and subsection 23(2) of the Charter

The attempt by the Quebec legislature to define the classes of rights holders set out in section 23 of the Charter by using the “major part” criterion set out in section 73 of Quebec’s Charter of the French Language (CFL) is not an unconstitutional limitation on the rights in question. The proper interpretation of subsection 23(2) must be purposive; it must reflect the remedial nature of the provision and it must be consistent with the intent to adopt a uniform set of minimum rights which in fact restrict the provincial jurisdiction over education. Subsection 73(2) of the CFL can be interpreted to conform to subsection 23(2) of the Charter. To that end, the adjective “major” must be given a “qualitative” rather than “quantitative” meaning. The Supreme Court is of the opinion that a strict mathematical approach is not consistent with subsection 23(2) of the Charter, which is designed to identify a single category of beneficiaries. This provision must therefore receive a broad interpretation consistent with the constitutional objective of protecting minority language communities (Solski at paragraphs 1 and 27).

Thus, a “major part” requirement, defined qualitatively, i.e., as meaning a “significant part”, is a valid qualifier for “parcours scolaire” or “educational experience”. The “major part” requirement must make room for the nuances and subjectivity required to determine whether the admission of a particular child, considering his or her personal circumstances, is consistent with the purpose of subsection 23(2) of the Charter and the specific need to protect and reinforce the minority language community (Solski at paragraph 46).

(iii) The justification for a violation under section 1 of the Charter

Pursuant to section 1 of the Charter, the rights provided for in section 23 may be restricted only by a rule of law within reasonable limits and demonstrably justified in a free and democratic society. Costs and practical considerations could be relevant if a responsible party seeks to justify a violation of section 23 under section 1 of the Charter (Rose-des-vents at paragraph 49, CSF de la C-B at paragraph 864). The reasons underlying the difficulty of justifying a violation of section 7 of the Charter under section 1 does not apply to section 23 (CSF de la C-B at paragraphs 988-989).

In CSF de la C-B, several violations of section 23 were found to be justified under section 1 of the Charter, including the following:

  • the Province of British Columbia violated section 23 of the Charter by failing to apply the AFG Rural Factor to the CSF in 2008/09, 2009/10 and 2010/11, thus treating the CSF differently from the majority (CSF de la CB at paragraph 1518). However, this violation was justified because the beneficial effects (avoiding some negative political consequences and protecting majority-language school boards from subsequent financial losses) outweighed the negative effects (CSF de la C-B at paragraphs 1525-1527).
  • the inferior quality of the overall educational experience at the Pemberton Valley Elementary School violated section 23 of the Charter, but the Court found that this violation was justified under section 1 for the following reasons: it was justified for the school in question to lease its space because of the small number of pupils in Pemberton; the cost of remedying the problem by building a new school; the fact that the CSF did not seek help from the Department of Education; and the more pressing need to improve access to education elsewhere in British Columbia (CSF de la C-B at paragraph 2444).
  • excessive traveling time to Victor Brodeur School (due to overcrowding in the school that resulted in a lease of facilities elsewhere due to lack of funding to expand the school) was justified for financial reasons (CSF of the BC to the paragraphs 4253, 4259 and 4264-4265).
  • a lower quality gymnasium making the overall educational experience of École Élémentaire Deux-Rives incompatible with section 23 of the Charter was justified: the decision not to expand the gymnasium allowed the province to address more urgent needs elsewhere in British Columbia (CSF de la C-B at paragraphs 4991 and 5003).

Justifications under section 1 have also been examined on a number of occasions in disputes involving section 23 of the Charter in relation to the Charter of the French Language in Quebec (see Quebec Protestant School Boards and Nguyen). In particular, the Court in Nguyen did not call into question the important and legitimate objective of the Quebec government to protect the French language in Quebec, namely education in French, or the rational causal link between the objectives of the Charter of the French language and the measures taken. However, the measures adopted and challenged by the Quebec government were excessive in relation to the objectives pursued.

(iv) Remedial power of the courts

The default court of competent jurisdiction to hear an application for a remedy under subsection 24(1) of the Charter is a superior court established under section 96 of the Constitution Act, 1867. It is also contemplated in subsection 24(1) that a court of competent jurisdiction will have the authority to grant a remedy that it considers appropriate and just in the circumstances. The trial judge is not required to identify the single best remedy, even if that were possible (Doucet-Boudreau at paragraphs 45 and 86).

The government should have the widest possible discretion in selecting the institutional means by which its obligations under section 23 of the Charter are to be met. “The courts should be loath to interfere and impose … standards, unless that discretion is not exercised at all, or is exercised in such a way as to deny a constitutional right” (Mahe at paragraph 96; Doucet-Boudreau at paragraph 66).

The “numbers warrant” requirement leaves the right in section 23 of the Charter particularly vulnerable to government delay or inaction. For every school year that governments do not meet their obligations under section 23, there is an increased likelihood of assimilation which carries the risk that numbers might cease to “warrant”. Thus, particular entitlements afforded under section 23 can be suspended, for so long as the numbers cease to warrant, by the very cultural erosion against which section 23 was designed to protect. The affirmative promise contained in section 23 and the critical need for timely compliance will sometimes require courts to order affirmative remedies to guarantee that language rights are meaningfully, and therefore necessarily promptly, protected (Doucet-Boudreau at paragraph 29; Rose-des-vents at paragraph 28).

The courts must be guided by historical and contextual factors in crafting a remedy that would meaningfully protect, indeed implement, the applicants’ rights to minority official language education for their children while maintaining appropriate respect for the proper roles of the executive and legislative branches (Doucet-Boudreau at paragraph 37).

The remedy awarded must be connected to a breach of the Charter committed against the rights holders. Thus, a court could not order the construction of child care spaces as a remedy for a violation of section 23, since the daycare is not protected by section 23 and the absence of child care space could not constitute a Charter violation (CA Yellowknife at paragraphs 171-172).

Practical costs and considerations may be relevant where the court seeks to design a remedy that is “appropriate and fair” in the circumstances, pursuant to subsection 24(1) of the Charter (CSF de la C-B at paragraph 864). Thus, the finding of a section 23 violation will not automatically lead to the opening of a new school for rights holders. There is a constant tension in reconciling competing priorities, between the availability of financial resources and the pressure on the public treasury. In designing a remedy, the court considers the costs and practical considerations involved in the delivery of all educational services — both for the linguistic majority and the minority schools (Rose-des-vents at paragraph 49).

In Doucet-Boudreau, the trial judge ordered the provincial government and school board to “do their best” to provide homogeneous French-language instruction facilities and programs within established timeframes (an “institutional” order). The judge also remained seized of the matter so as to receive reports on the efforts authorities made. The Supreme Court of Canada held that the order effectively vindicated the rights of the francophone parents; respected the framework of our constitutional democracy; called on the function and powers of a court; and vindicated the right by means that were fair. However, the Court noted that future orders of this type should be more detailed with respect to the jurisdiction retained and the procedure at reporting hearings (Doucet-Boudreau at paragraph 84).

In Nguyen, the Court upheld the Quebec Court of Appeal’s declaration that paragraphs 2 and 3 of section 73 of the Charter of the French Language are invalid and suspended its effects for one year to enable Quebec’s National Assembly to review the legislation (Nguyen at paragraph 51). On October 20, 2010, the members of Quebec’s National Assembly passed Bill 115 to comply with Nguyen.

In CSF de la C-B, the Court awarded damages of $6 million to compensate for the chronic underfunding of school transportation (CSF de la C-B at paragraph 1793). It also ordered the Province of British Columbia to set aside funds (a Capital Envelope) for the capital requirements of the CSF (CSF de la C-B at paragraphs 6759 and 6763) and to adopt a policy or a law to resolve or ensure the active involvement of the British Columbia Ministry of Education in the settlement of disputes between the CSB and the majority language school boards (CSF de la C-B at paragraph 6833).

(v) Awarding costs

Awards of costs are within the discretion of the court hearing a matter. Solicitor-client costs are an exceptional measure. Misconduct during the proceeding, and not the conduct that made the proceeding necessary, is what justifies awarding solicitor-client costs, which are generally awarded only when there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties: Young v. Young, [1993] 4 S.C.R. 3 (East Central Francophone Education Region No. 3 East Central Francophone Education Region No. 3 v. Alberta (Minister of Infrastructure), 2004 ABQB 428) at paragraph 39).

The fact that issues are raised under the Charter will not necessarily lead to an award of solicitor-client costs. Nonetheless, persistent denial of the rights guaranteed by section 23 of the Charter can justify awarding costs on that basis (Arsenault-Cameron at paragraph 63; East Central Francophone Education Region No. 3 at paragraph 40).

Special costs may be awarded when members of the minority community with limited resources seek to enforce their constitutional rights, in situations where the issues raised are new and are of great public importance. Consideration is also given to the fact that members of the official-language minority community have attempted to resolve certain issues outside the courtroom by negotiating with the other parties (Rose-des-vents at paragraphs 85-89).