Legal and Social Affairs Division
On 24 April 2015, the Supreme Court of Canada (SCC) issued a ruling in which it found that there had been a breach of the minority language education rights guaranteed by section 23 of the Canadian Charter of Rights and Freedoms. It concluded that a francophone school in Vancouver – whose facilities were significantly inferior to those of neighbouring anglophone schools – was not equivalent to the majority language schools.
In its decision in Association des parents de l’école Rose-des-vents v. British Columbia (Education), the SCC clarified the circumstances in which the quality of a minority language school education is equivalent to that of the majority language schools, as well as other factors to be considered in determining whether there is equivalence on this point.
This decision concerns the protection of the culture and language of the linguistic minority in Canada. It will have a significant and widespread impact on Canadian society, notably because all provincial governments will have to consider it in implementing the right established by section 23 of the Charter.
Section 23 of the Charter
The right established by section 23 is intended, in particular, to preserve Canada’s two official languages, along with their vitality and the culture associated with each.
Section 23 deals specifically with the right to education in the minority language. It sets out the categories of parents holding this right, which applies when the number of children of eligible parents is sufficient to warrant the use of provincial public funds to provide minority language instruction.
The level of services provided under section 23 is determined by a sliding scale. At the upper limit, the number of children of eligible parents warrants the existence of one or more educational facilities that are distinct from, and equivalent to, those available to the majority language group.
The facts giving rise to the dispute
L’école élémentaire Rose-des-vents (RDV) was established in 2001, five years after the Supreme Court of British Columbia ruled that the number of children of eligible parents warranted the presence of a distinct French-language school. This is the only publicly funded French-language elementary school west of Main Street in Vancouver.
Over the years, with increased enrolment, the school has become overcrowded. Furthermore, the school is small, its facilities are inadequate and pose many problems, bus trips are long, etc. By contrast, the majority language schools, whose classrooms and playgrounds are larger and in better condition than those of RDV, are not struggling with these problems.
In 2010, the Association des Parents de l’école RDV and Joseph Pagé, on his own behalf and as a representative of parents of children enrolled at RDV (“the parents”), filed a petition for a declaration that their minority language education rights guaranteed under the Charter had been breached. At the heart of their challenge was the lack of equivalence between this minority language institution and the institutions of the majority.
The Supreme Court of British Columbia found that there had been a breach of the parents’ right guaranteed by the Charter. However, the Court of Appeal for British Columbia overturned this ruling.
The decision of the Supreme Court of Canada
The highest court in the land ruled unanimously that the trial judge had correctly assessed the substantive equivalence between RDV and the neighbouring schools of the linguistic majority. It therefore reinstated the declaration of the Supreme Court of British Columbia that there had been a breach of section 23 of the Charter.
The SCC stated that substantive equivalence prevails when comparing a minority language school facility with those of the majority language, and per capita costs are not very instructive, given that under the principle of substantive equality, minorities must sometimes be treated differently.
The SCC determined that in assessing substantive equivalence, the court should consider the educational choices available to rights-holder parents:
Would reasonable rights-holder parents be deterred from sending their children to a minority language school because it is meaningfully inferior to an available majority language school? If so, the purpose of this remedial provision is threatened [para. 35].
The SCC also indicated that majority language schools near the minority language school are the appropriate comparator group for assessing substantive equivalence, since these schools are realistic alternatives for eligible parents.
Furthermore, in the assessment of equivalence, the SCC decided that:
the comparative exercise is contextual and holistic, accounting for not only physical facilities, but also quality of instruction, educational outcomes, extracurricular activities, and travel times, to name a few factors [para. 39].
Finally, the SCC rejected the argument of the Province of British Columbia to the effect that costs and practicalities should be considered in the equivalence analysis.
The breach of minority language education rights, and its consequences
Section 23 of the Charter is remedial in nature, that is to say, it seeks to rectify the mistakes of the past and to correct the assimilation of linguistic minorities.
Provincial governments have wide discretion with regard to the measures they use to implement the right guaranteed by section 23. However, they must take positive steps, notably by modifying or creating educational facilities where this is justified. And as reiterated by the SCC, it is important that they not delay in implementing such measures so as to avoid compromising the underlying objective of section 23, which is to combat the assimilation of linguistic minorities.