Section 23 - Minority Language Educational Rights

Table of Contents

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 sections (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 must be read in conjunction with section 59 of the Constitution Act, 1982:

It should be noted that no proclamation has been issued under section 59.

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

Purpose

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 pages 362-363).

Section 23 has three purposes, as it is at once preventive, remedial and unifying in nature (CSF de la C-B SCC at paragraph 15, CSF des TNO at paragraph 1). It is preventative in that it is intended to prevent the erosion of official language communities (CSF de la C-B SCC at paragraph 15). It is remedial in that it is intended to redress past injustices and promote the development of those communities (CSF de la C-B SCC at paragraph 15; Solski at paragraph  3; Arsenault‑Cameron at paragraph 27). Finally, the section also has a unifying purpose in that it accommodates mobility by enabling citizens to move anywhere in the country without fearing that they will have to abandon their language and culture (CSF de la C-B SCC at paragraph 15; Solski, at paragraph 30).

Section 23(1)(b) and section 23(2) of the Charter have the same purpose and must be interpreted in the same way. Section 23(2) has another specific purpose: to provide continuity in minority language education rights, to ensure family unity and to accommodate mobility (Solski at paragraph 30).

Analysis

Preliminary Observations

1. 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; CSF de la C-B SCC at paragraphs 12-13).

Section 23 of the Charter is the cornerstone of Canada’s commitment to the values of bilingualism and biculturalism (Mahe at page 350; Reference re Public Schools Act (Man.) at page 79; Arsenault‑Cameron at paragraph 26; Gosselin at paragraph 28; APÉ Rose-des-vents at paragraph 25).

The purpose of s. 23 emphasizes the goal of protecting Canada’s strength and unity by preserving its official languages and their cultures (Re Education Act of Ontario at page 28).

2. 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 pages 363-364; Solski at paragraph 3; CSF de la C-B SCC at paragraph 1).

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 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 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 at paragraph 368).

3.An individual and collective right

Unlike other provisions of the Charter, section 23 and the other language rights are 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; CSF de la C-B at paragraph 17; CSF des TNO at paragraph 2). 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 page 862).

4. A positive duty on governments

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. Moreover, the remedial objective of section 23 is explained by the need to change a status quo that may be insufficient to curb the assimilation of official language minority communities (Mahe at page 363; Reference re Public Schools Act (Man.) at page 79; Arsenault‑Cameron at paragraphs 26-27; Doucet-Boudreau at paragraph 28; CSF de la C-B SCC at paragraph 15). Unlike certain other constitutional provisions that impose only negative obligations, s. 23 imposes positive obligations on the state (CSF des TNO at paragraph 2).

Section 23 guarantees the right to minority language education as a tool for combating assimilation. Even when the existence of section 23 has not been able to curb the rate of assimilation and the right to education operates in a difficult context, the fact remains that this provision is intended both to ensure the sustainability of linguistic communities and to enable them to flourish (CSF de la C-B SCC at paragraphs 155-157).

Section 23 places a positive duty on governments to make expenditures out of public funds (Doucet-Boudreau at paragraph 29, CSF de la C-B SCC at paragraph 147). It also requires prompt action to prevent the risk of assimilation and ensure that generations of rightsholders do not lose their rights (Doucet-Boudreau at paragraph 29, APÉ Rose-des-vents at paragraph 28, CSF de la C-B SCC at paragraph 142).

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 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 (Mahe at page 363; Arsenault-Cameron at paragraph 27; CSF de la C-B SCC at paragraph 15). 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 explained in Beaulac, “… 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 (Beaulac at paragraphs 24-25; Arsenault‑Cameron at paragraph 27; Doucet‑Boudreau at paragraphs 24-25). Courts must seek an interpretation of section 23 that is remedial and alive to background context (Arsenault‑Cameron at paragraph 29; CSF de la C-B SCC at paragraph 12). Because the interpretation of s. 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 (Solski at paragraphs 5, 21).

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 Board at page 79; Mahe at pages 353-364; Renvoi relatif à la Loi sur les écoles publiques (Man.) at page 849; 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 (Yukon at paragraphs 67-69). 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, 34). The unique historical and social context of each province or territory must also be taken into account in situations where there is need for justification under section 1 of the Charter (Solski at paragraph 21). At the same time, provinces and territories are required not only to consider s. 23 of the Charter in exercising their discretion but also to conduct a proportionate balancing of the values reflected in the three purposes of s. 23 with the government’s interests (Commission scolaire francophone TNO at paragraph 67).

Wording and Restrictions

1. General conditions

a) Citizenship

Section 23 of the Charter reserves this right to Canadian citizens only (CSF de la C-B BCCA at paragraph 66). 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 without Canadian citizenship 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).

At the same time, in considering the question of whether to include non-rights holders for admission to official language minority schools, provinces and territories are required not only to consider s. 23 of the Charter in exercising their discretion but also to conduct a proportionate balancing of the values reflected in the three purposes of s. 23 with the government’s interests (Commission scolaire francophone TNO at paragraph 67).

b) 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 their 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 at page 681). 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 one minority language-speaking parent and the majority language-speaking parent has been granted custody. In such circumstances, there is necessarily less contact with the minority language-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 minority-language schools are generally preferable to immersion programs for ensuring that both languages are maintained at the highest level and to allow children to benefit from the advantages associated with a higher level of bilingualism. (Perron at paragraphs 40, 42-44)

Section 23 does not provide authority for school boards to admit children whose grandparent is a rights holder (Yukon, at paragraph 74).

At the same time, in considering the question of whether to include non-rights holders for admission to official language minority schools, provinces and territories are required not only to consider s. 23 of the Charter in exercising their discretion but also to conduct a proportionate balancing of the values reflected in the three purposes of s. 23 with the government’s interests (Commission scolaire francophone TNO, at paragraph 67).

c) 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 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.

At the same time, in considering the question of whether to include non-rights holders for admission to official language minority schools, provinces and territories are required not only to consider s. 23 of the Charter in exercising their discretion but also to conduct a proportionate balancing of the values reflected in the three purposes of s. 23 with the government’s interests (Commission scolaire francophone TNO at paragraph 67).

d) 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 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 programmes are not included within “primary … school instruction” in section 23 of the Charter (CSF de la C-B at paragraph 1866, affirmed in CSF de la C-B BCCA at paragraphs 196-200). The province of British Columbia 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).

e) Geographical delimitations and entities responsible for applying s. 23

Section 23 applies to the provinces, given their constitutional jurisdiction over education (section 93 of the Constitution Act, 1867). With regard to the territories, section 23 applies to the Northwest Territories and the Yukon pursuant to section 30 of the Charter. While the Charter does not specify whether section 23 applies to Nunavut, section 157 the Education Act, SNu 2008, c15, affirms the educational linguistic rights of the francophone minority of the Territory in accordance with section 23 of the Charter.

In fact, sections 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, section 23(3)(b) refers to the number of children "in the province." Section 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 sections 23(1) and 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 section 23(2) applies to all of Canada, and that section 23(3)(b) does not refer explicitly to "provinces" suggest that Nunavut is subject to section 23 (Bastarache at pages 389-390; see also Education Act, SNu 2008, c 15, section 157).

Section 23 binds school boards just as it binds the province (APÉ Rose-des-vents at paragraph 62; CSF de la C-B SCC at paragraphs 139-140). Provinces have mechanisms in place to ensure the good governance of school boards (APÉ Rose-des-vents 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 at paragraph 13).

f) 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.

g) 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 at paragraphs 36, 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 2 c) below:  “Children's instruction.”

2. 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 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 rightsholders: those who are entitled to rights by virtue of their mother tongue, their education or their children’s education. Additionally, admission to minority language schools may be provided in some cases to children of parents not entitled under section 23. All of these are considered are considered below.

a) First Language Learned and Still Understood

According to section 23(1)(a), a parent who is a Canadian citizen and 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 has 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, section 23(1)(a) does not apply in Quebec.

b) Parents' Language of Instruction

According to section 23(1)(b), parents who are Canadian citizens and 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 section 23(1)(b) connote a reference to one’s “school record” or “educational experience” or “parcours scolaire.” Sections 23(1)(b) and 23(2) have the same purpose and must be interpreted in the same way (Solski at paragraph 32).

c) Children's Instruction

According to section 23(2), parents who are Canadian citizens and 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.

Section 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 section 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 section 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 section 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).

(i) Time Spent in Each Program

Section 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 section 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).

(ii) Stage of Education When the Language of Instruction was Chosen

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).

(iii) What Programs Are or Were Available?

Under a purposive interpretation of section 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 section 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 enrol 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 section 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 s. 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 paragraphs 35-36; K.K. 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).

(iv) 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).

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 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, CSTN-O at paragraph 7). Section 23 does not require the provinces to enact legislation enabling school boards to admit non-entitled parties (Yukon at paragraph 69).

At the same time, in considering the question of whether to include non-rights holders for admission to official language minority schools, provinces and territories are required not only to consider s. 23 of the Charter in exercising their discretion but also to conduct a proportionate balancing of the values reflected in the three purposes of s. 23 with the government’s interests (Commission scolaire francophone TNO at paragraph 67).

The rights granted under section 23(2) apply regardless of whether the eligible parents or children are members of one of the two linguistic minority communities, English and French, or speak one of these languages at 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 section 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 section 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 at pages 488-489).

Scale and standard of section 23 requirements

In order to fully implement section 23 of the Charter, the Supreme Court of Canada has established an analytical framework for determining the appropriate scale of requirements and standard of requisite education within the meaning of section 23. Yet, these elements are not included in the wording of section 23. The analysis is then based on two jurisprudential concepts that have made up for the silence of the Charter in these respects: the sliding scale criterion and the principle of substantive equality.

1. The “sliding scale” criterion

While the implementation of section 23 depends on the presence of a sufficient number of children, its wording is silent on what makes a number "sufficient" or not (CSF de la C-B SCC at paragraph 22). In addition, section 23 establishes a “sliding scale of requirements” of minority language education rights (Mahe at page 366). This variable scale is used to determine the extent of the rights granted in a given case. At the minimum threshold of the scale, the right to education is exercised when “the number of children of citizens who have such a right is sufficient to warrant” (section 23(3)(a) of the Charter). At the higher level, the right to such education includes the right to educational institutions “where the number of those children so warrants” (section 23(3)(b) of the Charter).

The concept of the “sliding scale” simply refers to the fact that the implementation of section 23 allows for the opening up of a range of services from the lower limit allowing the right to education to the upper limit related to the right to management and control (Mahe at page 370; CSF de la C-B SCC at paragraph 24). In other words, at the bottom of the scale, a sufficient number of children gives the beneficiaries the simple right to have their children educated in the language of the official language minority. The greater the number of children, the greater the range of educational services offered. Thus, in the middle of the sliding scale, the number of children allows for a certain right of control (e.g., certain expenses and control of classrooms in a majority-language school). Finally, at the top of the scale, the linguistic minority has the right to a separate educational institution – that is, a homogeneous school – and, therefore, a right to management and control. (See below in the section entitled “Scope of Section 23 Rights”)

Thus, once the minimum step in section 23(3)(a) is reached, “the sliding scale applies to determine the level of services that corresponds to the extent to which the minority will have control over the provision of educational services” (CSF de la C-B SCC at paragraph 24). For example, the courts can determine whether the linguistic minority has the right to education, a homogeneous school, shared facilities or any other appropriate service (CSF de la C-B SCC at paragraph 51).

Thus, section 23 of the Charter provides individuals with a right to first official language educational instruction, but, unlike most Charter rights, one individual alone cannot enforce their right. Right-holders must act collectively to ensure they can individually benefit from the exercise of their rights (Buckland at paragraph 51).

Moreover, the criterion of sufficient numbers to justify rights under section 23 (the “numbers warrant requirement”) constitutes the internal limit of that provision (CSF de la C-B SCC at paragraph 25). If the number does not justify the minimum threshold for the right to education, governments are not required to create a program of instruction in the minority official language (Mahe at page 367).

In 2020, the Supreme Court of Canada clarified the method for determining where a given number of children fall on the sliding scale (CSF de la C-B SCC). In particular, the analysis it presents is intended to provide “a straightforward and predictable approach that might even enable rights holders to avoid, to the extent possible, resorting to litigation” (CSF de la C-B SCC at paragraph 56). Before describing the analysis, the Court clarifies two factors relevant to the exercise: the appropriate educational services in relation to the number of children and the cost of the services envisaged, the first factor weighing more heavily than the second by virtue of the remedial nature of section 23 (Mahe at pages 384-385; Arsenault-Cameron at paragraph 30; CSF de la C-B SCC at paragraph 52). First, the pedagogical factor relates to the pedagogical viability of the project proposed by the minority and whether it meets the requirements of the curricula (CSF de la C-B SCC at paragraph 54). Second, the cost factor reflects the notion that public funds are limited and their use must be justified (CSF de la C-B SCC at paragraph 55).

At the first stage of the analysis, the Supreme Court explained that it was up to the plaintiffs to place the number of students on the sliding scale based on long-term projections (CSF de la C-B SCC at paragraphs 58-59; Mahe at page 384). Thus, the relevant numerical standard is specific to each situation and the relevant number is the « [t]he number of students who will eventually avail themselves of the service [which lies] between the known demand and the total number of children of s. 23 rights holders » (CSF de la C-B SCC at paragraph 60; Mahe at page 384; Reference re Public Schools Act (Man.) at page 850; Arsenault-Cameron at paragraph 32). For example, in CSF de la C-B SCC case, the Supreme Court rejected the short-term projections (three years) used by the trial judge on the grounds that the long-term projections (ten years) were only for the future rights of the minority (CSF de la C-B SCC at paragraph 95). The province has an obligation to actively promote minority-language educational services and to help determine potential demand (Arsenault-Cameron at paragraph 34). This demand can be determined by assuming that the established demand would increase once services are offered (Arsenault-Cameron at paragraphs 34, 59).

An interprovincial agreement to bring students from different provinces to a sufficient number can meet the requirements of section 23(1)(b) of the Charter. Such an arrangement constitutes a novel solution and extends flexibility to section 23 of the Charter to effect its purpose (Chubbs at paragraph 68).

The second step is to determine which school or program the minority is considering is appropriate in terms of pedagogy and costs (CSF de la C-B SCC at paragraph 61). To do this, it is necessary to determine whether the number of students in the minority is comparable to the number of students in the majority’s schools (CSF de la C-B SCC at paragraph 73). This comparison is made across the province, even in the case of small rural schools (CSF de la C-B SCC at paragraphs 65-66). In practice, it is up to minority language applicants to identify a reasonable number of majority comparison schools (CSF de la C-B SCC at paragraph 69). If there are majority schools in the province comparable to the number of minority students covered by a proposed service, it will be presumed that the province considers “that it is appropriate from the standpoint of pedagogy and cost to create a comparably sized school for the minority” (CSF de la C-B SCC at paragraphs 69-70; Arsenault-Cameron at paragraph 39; Mahe at page 385). The province can rebut this presumption by showing that the comparator schools are inappropriate or that the proposed school does not meet the educational or financial requirements (CSF de la C-B SCC at paragraphs 75-82).

The third step is to identify the level of services that need to be provided to the minority. If the second step leads to a conclusion that the number of minority students is comparable and the presumption is upheld, the minority will be entitled to have its children educated in a homogeneous school under paragraph 23(3)(b) of the Charter (CSF de la C-B SCC at paragraph 84). If the number is not comparable, a range of services below a homogeneous school is possible. In determining the appropriate service, the Supreme Court calls for deference to what the minority considers to be appropriate from an educational and financial point of view (CSF de la C-B SCC at paragraphs 85-88; Arsenault-Cameron at paragraph 38; Mahe at page 373). The purpose of the analysis is to determine “what level of service corresponds to the level of control that would enable the minority to promote its language and culture while at the same time meeting the province’s pedagogical requirements” (CSF de la C-B SCC at paragraph 89).

2. Substantive equality

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 page 369; Solski at paragraph 20; Nguyen 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 section 15(1) of the Charter (Gosselin at paragraph 34). That said, the principle of substantive equality is, of course, what underlies section 23.

Once it has been established that the number of children justifies a right included in section 23, the quality of the services must be substantively equivalent to that of the services offered to students of the linguistic majority (APÉ Rose-des-vents at paragraph; CSF de la C-B SCC at paragraphs 26, 104). The principle of substantive quality applies everywhere on the sliding scale (CSF de la C-B SCC at paragraph 107). Section 23 is based on the premise that substantive equality requires that official language minorities be treated differently, if necessary, according to their particular circumstances and needs, in order to ensure that they receive a level of education equivalent to that of the official language majority (Arsenault-Cameron at paragraphs 31, 48; APÉ Rose-des-vents at paragraph 33). It is not the purpose of this section to reinforce the status quo by adopting a formal conception of equality that would primarily aim to treat majority and minority official language groups in the same way (CSF de la C-B SCC at paragraph 73). The use of objective standards to assess the needs of minority-language children, primarily by reference to the educational needs of majority-language children, does not take into account the specific requirements of section 23 rights holders (Arsenault-Cameron at paragraph 31; Gosselin at paragraph 32).

In order to give effect to section 23 rights, the focus should therefore be on substantive equivalence rather than per capita costs and other indicators of formal equivalence (APÉ Rose-des-vents at paragraph 35; CSF de la C-B SCC at paragraph 105). Funds allocated to minority schools must be at least equivalent, in proportion to the number of pupils, to the funds allocated to majority schools (Mahe at page 378; APÉ Rose-des-vents at paragraph 47; CSF de la C-B SCC at paragraph 133). However, no specific amount per person will satisfy the requirements of section 23 in a given case. What is essential is that the educational experience of the children of section 23 rights holders, regardless of their level on the sliding scale, be of a quality that is truly similar to the educational experience of students of the linguistic majority (APÉ Rose-des-vents at paragraph 33; CSF de la C-B SCC at paragraph 107).

3. A holistic analysis

The Supreme Court of Canada reiterated that the determination of the number of students on the sliding scale and the assessment of the quality of the educational experience under substantive equivalence are separate steps within a holistic section 23 analysis (CSF de la CB SCC at paragraph 121).

The first step, the sliding scale, determines the appropriate level of service – a level that reflects the minority's degree of control over the delivery of education (CSF de la C-B SCC at paragraph 122). The second step, based on substantive equivalence, does not aim to change the positioning of the number on the sliding scale, but rather to determine whether the quality of the educational experience of the minority is equivalent to that of the majority (CSF de la CBC SCC at paragraph 123).

Recall that the concept of substantive equivalence applies everywhere on the sliding scale and, therefore, regardless of the size of the school or program in question (CSF de la C-B SCC at paragraph 107). In APÉ Rose-des-vents, the Supreme Court of Canada set out the procedure, based on three elements, to determine what constitutes a truly equivalent educational experience when the minority is entitled to homogeneous schools. The Court adapted this approach in the context of small schools in CSF de la C-B SCC:

These factors should not be considered in isolation; They are examined together to determine whether, overall, the educational experience is so inferior as to deter rights holders from enrolling their children in a minority language school (APÉ Rose-des-vents at paragraphs 39-40; CSF de la C-B SCC at paragraph 113). Moreover, in the case of small schools, their inherent characteristics are neutral considerations that should not be taken into the equation – a reasonable parent is willing to accept these peculiarities by enrolling their child in a small minority school (CSF de la C-B SCC at paragraph 114).

The lack of reasonable accessibility, including difficulties relating to transport to a minority school, may lead to the conclusion that a right under section 23 has been denied. However, the difference in access to a minority school compared to that of the majority must be significant enough to affect the right to education (Arsenault-Cameron at paragraph 50; Clermont at paragraphs 10, 15-16; APÉ Rose-des-vents at paragraphs 56-57; CSF de la C-B SCC at paragraphs 131-133).

It is not appropriate for provincial or territorial governments to raise issues related to practical or cost considerations as part of the analysis of factual equivalence between minority and majority language schools. Costs and practical considerations are relevant in determining the level of service to be provided to a group of rights holders under the sliding scale. However, once this level is established, practical and financial considerations cannot be reconsidered in the equivalence analysis (APÉ Rose-des-vents at paragraphs 46, 49-50; CSF de la C-B SCC at paragraphs 121-123).

In order to provide substantially equal funding over the course of a school year, it would be necessary to maintain a comparative difference between French-language minority school boards and those of the English-speaking majority. To do this, the government must take inflation into account in its fiscal considerations (Conseil scolaire fransaskois 2014 at paragraphs 158-159).

Scope of section 23 rights

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

1. The Right to Instruction

Section 23 stipulates as a minimum a right to primary and secondary instruction in the minority language (section 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 at pages 526-527). For the purposes of section 23, a minority language education program may refer to 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; Reference re Public Schools Act (Man.) at pages 854-855).

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).

2. The Right to Facilities of the minority 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 (Mahe at page 367; Arsenault-Cameron at paragraph 26). 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 at paragraphs 121, 720).

It seems reasonable to infer that some distinctiveness in the physical settings is required to successfully fulfil this role (Mahe at pages 373-377; Reference re Public Schools Act (Man.) at pages 854-855). What matters is that the linguistic minority should be able to manage and control their allocated spaces and the elements that relate to their language and culture (CSF de la C-B SCC at paragraphs 24, 88).

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 page 856).

Both a textual and purposive analysis of section 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 (APÉ Rose-des-vents at paragraphs 29).

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. It should be noted, however, that in the APÉ Rose-des-vents case, the Supreme Court of Canada noted that minority schools also play an essential role as community centres (paragraph 27). School boards can not 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).

3. 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 (Mahe at pages 371-372; Arsenault-Cameron at paragraph 45). 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.

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 (Mahe at page 386; Arsenault-Cameron at paragraphs 45, 57). 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 (Mahe at pages 375-376; Arsenault-Cameron at paragraph 46). In order to remedy past injustices, the minority communities have the right to exclusive control over aspects of minority language instruction that are relevant to or have an impact on language and culture because they cannot expect the majority to understand their interests (Mahe at page 372; Arsenault-Cameron at paragraph 43; CSF de la C-B SCC at paragraph 86). The determination of the relevance of an aspect to the minority language and culture is contextual and must consider whether the aspect in question relates to the pursuit of the restorative objectives of section 23 23 (Arsenault-Cameron at paragraphs 45-46). 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 in the capacity of the proposed service to meet the educational needs identified by the province in a manner that is consistent with minority language and culture (Mahe at page 373; Arsenault-Cameron at paragraphs 38, 45, 53; CSF de la C-B SCC at paragraph 88).

For example, the right to determine what transportation times are appropriate falls within the minority’s jurisdiction in most instances (Arsenault-Cameron at paragraphs 49-50). 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, 1791). The fact that a minority school board’s offices are located in leased premises does not deprive it of its right to management and control (CSF de la C-B at paragraphs 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 paragraphs 5592, 5603 and confirmed in CSF de la C-B BCCA at paragraphs 179-186). 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, but in doing so, the province must respond to the particular linguistic dynamics (Arsenault-Cameron at paragraph 43).

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 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, 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 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 and confirmed in CSF de la C-B SCC at paragraphs 39-40). 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 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 pages 377-378).

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. 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 (Mahe at page 379). 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 section 23 (Yukon at paragraph 69). 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 at various degrees (Yukon at paragraphs 71-73). 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 (Yukon at paragraph 74). Section 23 does not require the provinces to enact legislation enabling school boards to admit non-rights holders (Mahe at page 379; Yukon at paragraph 70). 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, 74)

Other relevant factors

4. 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 at paragraph 56; APÉ Rose-des-vents at paragraph 68.)

However, except with regard to Quebec and section 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 pages 371-372; 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 sections 23 of the Charter and 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 (Adler at paragraphs 31, 45). 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, 444-446).

It is well established in the jurisprudence of the Supreme Court of Canada that section 23 is a right that requires the provinces to act (Mahe at pages 363, 365; Doucet-Boudreau at paragraph 87; CSF de la C-B SCC at paragraphs 147, 190, 299). Because section 23 requires spending from public funds, it is particularly vulnerable to inaction, delay and dithering by provincial governments (Doucet-Boudreau at paragraph 29; APÉ Rose-des-vents at paragraph 28; CSF de la C-B SCC at paragraph 142). A neutral approach is inconsistent with the remedial purpose of section 23, which aims to change the status quo if it is insufficient (Mahe at page 363; CSF de la C-B SCC at paragraphs 3, 15). For example, a province cannot remain neutral and not support a minority school board in negotiating leases (CSF de la C-B at paragraphs 5763, 5948, 6355-6356 et 6825).

Although section 23 does not necessarily require a 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 (Arsenault-Cameron at paragraph 26; 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, 6425).

A province has jurisdiction to create a funding system that requires the minority school board to report and justify its costs (Arsenault-Cameron at paragraph 55; 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 section 23 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).

5. Application of Section 23 of the Charter in Québec

In Québec, consideration of section 23 of the Charter must also take into account section 59 of the Constitution Act, 1982, as well as section 73 of the Québec Charter of the French Language.

a) Section 59 of the Constitution Act, 1982

Pursuant to section 59 of the Constitution Act, 1982, section 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 sections 23(1)(b) and 23(2) of the Charter (Quebec Protestant School Board 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 Canada (Gosselin at paragraph 31).

b) Section 73 of the Québec Charter of the French Language

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 section 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. Section 73(2) of the CFL can be interpreted to conform to section 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 section 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, 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 their personal circumstances, is consistent with the purpose of section 23(2) of the Charter and the specific need to protect and reinforce the minority language community (Solski at paragraph 46).

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 (Nguyen at paragraph 37; APÉ Rose-des-vents at paragraph 49; CSF de la C-B SCC at paragraph 143).

In the context of section 23, the Supreme Court of Canada has determined that the justification for an infringement “is especially difficult to justify” because of three factors (CSF de la C-B SCC at paragraphs 146, 151). First, section 23 imposes positive obligations on governments, and a flexible approach to justification would jeopardize the remedial nature of this provision (CSF de la C-B SCC at paragraph 147). Second, by removing section 23 from the scope of the notwithstanding clause in section 33 of the Charter, Parliament emphasized the privileged importance of this right and sought to ensure that the majority could not evade its obligations (CSF de la C-B SCC at paragraphs 148-149). Third, the internal limitation of section 23 (justification by numbers) already requires an assessment of financial and pedagogical considerations. It will then be illogical to use it a second time in an analysis of section 1 in an attempt to justify a violation of section 23, particularly if these considerations justified the grant of the right on the sliding scale in the first place (CSF de la C-B SCC at paragraph 150).

At trial in CSF de la C-B, Russell J. found that several violations of section 23 were justified under section 1 of the Charter, citing, inter alia, the fair and rational appropriation of limited public funds as a pressing and substantial objective. For each of the infringements, the Supreme Court of Canada found that the findings at trial were erroneous (CSF de la C-B SCC at paragraphs 153, 163). The Court also pointed out that financial arguments were often raised by governments in an attempt to justify infringements of section 23, but that invoking the just and rational allocation of funds was not enough to derogate from fundamental rights (CSF de la C-B SCC at paragraph 153).

Moreover, the analysis under section 1 also includes an assessment of proportionality. In this regard, still in the CSF de la C-B case, the trial judge ruled out the high rate of assimilation of Franco-Columbian students as a detrimental factor on the grounds that the number of minority schools will not have an impact on this rate and, therefore, that the schools will slow down assimilation without preventing the inevitable (CSF de la C-B SCC at paragraph 155 referring to CSF de la C-B at paragraphs 371, 1179, 2109, 2147-2148). Both the majority and the minority judges of the Supreme Court of Canada rejected this logic; a high rate of assimilation points to the fragility of a community and should prompt action (CSF de la C-B SCC at paragraphs 155-157; 262-264). Moreover, at this stage of the analysis, budgetary savings are not relevant when balancing the salutary and deleterious effects of the measure infringing on section 23 rights (CSF de la C-B SCC at paragraph 159).

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.

Remedial Power of the Courts

The default court of competent jurisdiction to hear an application for a remedy under section 24(1) of the Charter is a superior court established under section 96 of the Constitution Act, 1867. It is also contemplated in section 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.

1. Remedies

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 page 393; 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; APÉ 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 childcare spaces as a remedy for a violation of section 23, since the daycare is not protected by section 23 and the absence of childcare 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 section 24 (1) of the Charter (CSF de la C-C SCC at paragraphs 173-174). 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 (APÉ 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 Supreme Court of Canada upheld the Quebec Court of Appeal’s declaration that sections 73(2) and (3) 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 Supreme Court of British Columbia awarded damages of $6 million to compensate for the chronic underfunding of school transportation (CSF de la C-B at paragraph 1793; CSF de la C-B SCC at paragraph 180). 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, 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 CSF and the majority language school boards (CSF de la C-B at paragraph 6833). In the Supreme Court of the country, the CSF was also awarded $1.1 million because of insufficient funding for rural minority schools (CSF de la C-B SCC at paragraph 181).

2. Costs Awards

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 (East Central Francophone Education Region No 3 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 (APÉ Rose-des-vents at paragraphs 85-89).

Table of Cases

Table of authorities cited

The content is current up until 2024-04-04.