Ensuring access to quality education for students enrolled in minority language schools

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(Disponible en français : Assurer l’accès à une éducation de qualité aux élèves inscrits dans les écoles de la minorité)

The constitutional right to an education in one’s own language

Under section 23 of the Canadian Charter of Rights and Freedoms (the Charter), parents are entitled to have their children educated in a minority language elementary or secondary school—in French outside Quebec, or in English in Quebec. They can do so

  • if their mother tongue is the language of the minority;
  • if they received their primary school instruction in that language; or
  • if their children’s siblings attended a minority language school.

Official language minority communities across the country consider this constitutional right essential to their survival. The provinces and territories must fund their share of the costs since education falls entirely within their jurisdiction. The federal government recognizes the importance of minority language education and sets aside a large part of its annual official languages budget to funding the additional costs of this kind of education.

That said, anglophone and francophone minority students continue to face significant challenges accessing schools in their language. On several occasions, their parents and minority language school boards have had to turn to the courts to assert their language rights.

Such was the case for francophone parents in British Columbia who, in June 2010, joined the francophone school board in launching a legal action demanding that schools in 17 francophone communities across the province be renovated or built. The case, which went all the way to the Supreme Court of Canada, represented a new opportunity to clarify the constitutional rights guaranteed by section 23 of the Charter.

The outcome of a 10-year legal battle

On 12 June 2020, the Supreme Court of Canada issued a ruling in Conseil scolaire francophone de la ColombieBritannique v. British Columbia, one of the longest and costliest lawsuits in the history of language rights in Canada. In a majority decision, the Supreme Court ruled that the lower courts had adopted an inordinately narrow interpretation of section 23 of the Charter. This ruling will have implications across Canada where there is a need for new minority language schools.

The attorneys general of six other provinces and territories had joined British Columbia in arguing that economic reasons could justify infringements of section 23. However, the Supreme Court ruled that these reasons cannot justify an infringement of education rights where there is the likelihood of assimilation. It reaffirmed the remedial purpose of this provision, which is intended to enhance the vitality of official language minority communities and alter the status quo by addressing the inadequacy of the minority language school system.

What is substantive equivalence?

Section 23 of the Charter gives minority students the right to an educational experience of equivalent quality to that of the majority. The fight for equivalence in education has been the focus of a series of court cases, particularly in a 2015 Supreme Court of Canada decision concerning a French-language school in Vancouver and in a lawsuit brought before the Ontario Superior Court [in French] by francophone parents in east Toronto in 2017.

In its June 2020 judgment, the Supreme Court addressed the criteria for determining whether a minority student’s educational experience is equivalent to the experience provided the majority, failing which parents will waive their language rights and enrol their children in majority schools. Providing an equivalent educational experience may mean greater financial support from the provincial government for school infrastructure and transportation to put minority schools on an equal footing with those of the majority. The provincial government must also have a complete picture of eligible school enrolment in order to fulfill its obligations.

Substantive Equivalence in Education: Giving the Minority an Educational Experience Substantively Equivalent to That of the Majority -- There are eight barriers to achieving substantive equivalence in education: inadequate funding of school infrastructure; inadequate funding of school transportation; unreasonably long bus trips between home and school; inferior facilities; a lack of space for recreational, sports or cultural activities; an insufficient number of school spaces to meet demand; an insufficient number of schools to meet demand; and an incomplete portrait of eligible school enrolment. Compared to the linguistic majority, substantive equivalence requires that the linguistic minority receive different treatment for an equal outcome. Toward a full enumeration of rights holders: At this time, only an incomplete statistical portrait of rights holders (students eligible to attend minority language schools) is available, since only the parents of students whose mother tongue is the minority language are counted and there is no data on the number of parents who received their education in French or the number of siblings who attended a minority language school. In British Columbia, for example, the French-mother-tongue population grew from 63,630 in 2001 to 71,705 in 2016, an increase of 13%. Since legal action was filed in 2010, enrolment in the province’s French-language schools also grew by 36%, increasing from 4,368 in 2009–2010 to 5,937 in 2017–2018. As a result, there is a lack of French-language schools in many communities, while others exceed capacity shortly after opening. The population census currently consists of a short-form questionnaire distributed to 100% of the Canadian population, which contains three questions related to language: mother tongue, language spoken at home, and knowledge of official languages. There is also the long-form questionnaire distributed to 25% of the Canadian population, which contains the three questions on the short-form questionnaire plus two more: language of work, and knowledge of non-official languages. In 2021, the short- and long-form census will include five new questions on rights holders. They will focus on elementary or secondary education in French, the type of program attended, the length of school attendance, elementary or secondary education in an English-language school, and length of attendance at these schools. In addition, Statistics Canada will conduct the 2021 Post-censal Survey to collect information on which language parents wish to have their children educated in, and to collect annual information on school enrolment from the provinces and territories. As a result, the 2021 Census will provide a more accurate picture of the minimum number of students eligible to attend minority language schools, including those currently enrolled, and the estimated number of parents who wish to enrol their children in these schools.

Sources: Conseil scolaire francophone de la ColombieBritannique v. British Columbia, 2020 SCC 13; Statistics Canada, Table 37-10-0009-01 – Number of students in official language minority education programs; Statistics Canada, The French Language in British Columbia, 2001 to 2016: Facts and Figures, Catalogue No. 89‑657‑X2019017, 10 December 2019; and Statistics Canada, “4. Minority language educational rights,” in Painting a Portrait of Canada: The 2021 Census of Population – 4. Topics covered by the 2021 Census.

Towards a more accurate portrait of eligible students

Statistics Canada is responsible for the collection, management and analysis of census data. Until recently, the census did not provide an estimate of the total number of potential rights holders. Only data relating to section 23(1)(a) of the Charter (i.e., mother tongue) were collected. As a result, the portrait of eligible school enrolment in minority language schools was incomplete.

This is problematic because provincial and territorial governments rely on census data to determine how much to budget for minority language education and to identify the need to build new schools. It also hinders the ability of minority language school boards to take appropriate action in order to attract potential rights holders and retain students in the system throughout their academic career.

In its June 2020 decision, the Supreme Court called for an end to interminable judicial proceedings surrounding section 23 Charter rights and recognized that their effectiveness is vulnerable to government inaction. The fact that rights holders are not fully enumerated simply exacerbates the problems of francophone schools in British Columbia, and elsewhere in Canada.

Canada’s Parliament steps up the pace

During the 42nd Parliament, the Senate Standing Committee on Official Languages and the House of Commons Standing Committee on Official Languages made recommendations requiring Statistics Canada to develop new questions for the 2021 Census.

The House of Commons Committee took up the issue again in the 43rd Parliament by undertaking another study on the enumeration of rights holders, in which many witnesses stated that the short-form census, distributed to the entire Canadian population, was the preferred solution for collecting complete data. At the start of the 43rd Parliament, this issue was included in the Minister of Economic Development and Official Languages’ mandate.

In 2019, Statistics Canada tested questions to be used for the improved enumeration of rights holders. These were submitted to Cabinet, which approved the addition of five new questions to the 2021 Census short- and long-form questionnaires. These questions will survey the level of education attained in the minority language, the type of program attended and the length of time in school.

Additional Resources

Canadian Heritage, Intergovernmental Cooperation on Minority Language Education.

Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Education), 2016 BCSC 1764.

Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Education), 2018 BCCA 205.

Council of Ministers of Education, Canada, and Canadian Heritage, Protocol for Agreements for Minority-Language Education and Second-Language Instruction 2019–2020 to 2022–2023 between the Government of Canada and the Provinces and Territories.

House of Commons, Standing Committee on Official Languages, The Enumeration of Rights-Holders Under Section 23 of the Canadian Charter of Rights and Freedoms: Toward a Census That Supports the Charter, Fifth Report, 1st Session, 42nd Parliament, May 2017.

Senate, Standing Committee on Official Languages, Horizon 2018: Toward Stronger Support of French-Language Learning in British Columbia, Fourth Report, 1st Session, 42nd Parliament, May 2017, pp. 20–21 and 57–58.

Senate, Standing Committee on Official Languages, Modernizing the Official Languages Act: The Views of Federal Institutions and Recommendations, Thirteenth Report, 1st Session, 42nd Parliament, June 2019, pp. 28 and 68.

Statistics Canada, Painting a Portrait of Canada: The 2021 Census of Population, Catalogue number 98-26-0001, 2020.

Author: Marie-Ève Hudon, Library of Parliament

Categories: Education, language and training, Law, justice and rights

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