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Charter - Language Rights [s.23]

. Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia

In Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia (SCC, 2020) the Supreme Court of Canada considered the role of language rights in the s.23 of the Charter:

A. Principles to Be Applied in Interpreting Section 23

[5] I must begin by noting that the question of language is an integral part of Canadian history. It is a dominant theme that is reflected in legislative initiatives from key points in the country’s history (see M. Doucet, M. Bastarache and M. Rioux, “Les droits linguistiques: fondements et interprétation”, in M. Bastarache and M. Doucet, eds., Les droits linguistiques au Canada (3rd ed. 2013), 1, at pp. 30‑52). In language matters, the legislative pendulum has swung back and forth between two conflicting approaches, one based on policies of assimilation, and the other on promoting the development and autonomy of official language communities.

[6] In the discussions that preceded the founding of Canada, the framers of the Constitution wanted it to be mandatory that the laws, records and journals of the nascent country be published in both of what are now the official languages: English and French (Constitution Act, 1867, s. 133). Before that, the imperial authorities had imposed English unilingualism under the 1840 Union Act, but they had then abandoned that policy in 1848 owing to opposition on the part of French‑speaking citizens (Union Act, 1840 (U.K.), 3 & 4 Vict., c. 35; An Act to repeal so much of an Act of the Third and Fourth Years of Her present Majesty, to re‑unite the Provinces of Upper and Lower Canada, and for the Government of Canada, as relates to the Use of the English Language in Instruments relating to the Legislative Council and Legislative Assembly of the Province of Canada (U.K.), 1848, 11 & 12 Vict., c. 56; Doucet, Bastarache and Rioux, at p. 33).

[7] In adopting the Constitution Act, 1867, the framers also took an initial step favouring the recognition of language rights in education. At a time when language and religion often went hand in hand, the framers’ purpose in adopting s. 93 of the Constitution Act, 1867 was to give the provinces the exclusive power to make laws in relation to education. This section was intended indirectly to protect French language and culture, because it enabled French‑speaking Quebecers, who were in the minority in the country as a whole but in the majority in their province, to control their education system (Reference re Secession of Quebec, 1998 CanLII 793 (SCC), [1998] 2 S.C.R. 217, at para. 38). Section 93 also included provisions whose purpose was to preserve the rights of the Catholic minority in Ontario and the Protestant minority in Quebec in the area of education.

[8] The Constitution Act, 1867 did not, however, put an end to the tension that existed between those who advocated a unilingual conception of the country and those who championed a bilingual state. This tension can be explained by, among other things, the fact that at that time, many believed that a true national state should have a shared identity and thus a single common language, and saw education in that single language as a key to creating that shared identity (see, e.g., R. Cook, “Language Policy and the Glossophagic State”, in D. Schneiderman, ed., Language and the State: The Law and Politics of Identity (1991), 73, at pp. 75‑78; A. Giudici and S. Grizelj, “National unity in cultural diversity: how national and linguistic identities affected Swiss language curricula (1914‑1961)” (2017), 53 Paedagogica Historica 137). Beginning in the late 19th century, most of Canada’s provinces and territories therefore adopted legislative initiatives whose effect was to prohibit French-language instruction (see Of Public Instruction, R.S.N.S. 1864, c. 58; see also A. Martel, Official Language Minority Education Rights in Canada: From Instruction to Management (1991), at pp. 164 and 170; An Act Respecting the Department of Education, S.M. 1890, c. 37; The Public Schools Act, S.M. 1890, c. 38; The Common Schools Act 1871, S.N.B. 1871, c. 21, s. 60; The Public Schools Act, 1896, S.O. 1896, c. 70, s. 76(2); Ontario, Department of Education, Roman Catholic Separate Schools and English‑French Public and Separate Schools, Circular of Instructions For the School Year September to June, 1912‑1913: Instructions 17 (1912), and Ontario, Department of Education, English‑French Public and Separate Schools, Circular of Instructions (1913) (collectively, “Regulation 17”); An Act respecting the Board of Trustees of the Roman Catholic Separate Schools of the City of Ottawa, S.O. 1915, c. 45; The School Ordinance, O.N.W.T. 1901, c. 29, s. 136; The School Act, R.S.S. 1909, c. 100, s. 135; The School Act, R.S.A. 1922, c. 51, s. 184).

[9] In Ontario, some parents and a French‑language school board challenged the constitutionality of Regulation 17, which prohibited French‑language instruction after the first two years of primary school. They argued that it infringed s. 93 of the Constitution Act, 1867. The Appellate Division of the Ontario Supreme Court rejected that argument. In his reasons, Garrow J.A. relied in particular on s. 133 of the Constitution Act, 1867 to conclude that the use of any language other than English was merely a concession and not a right, and that the use of French was not protected:

It is a perfectly natural thing that those of French descent should love their noble language, and even passionately desire to promote, as far as reasonably possible, its perpetuation here. One may even respect a similar sentiment on the part of the Germans, the Italians, and the others settled among us to whom the English is a foreign tongue. But it is not to be ignored or forgotten that, while all are tolerated, the official language of this Province, as of the Empire, is English, and that the official use of any other language is in the nature of a concession and not of a right. This is, I think, well, and indeed in my opinion conclusively, illustrated by the provisions of sec. 133 of the British North America Act . . . .

(Mackell v. Ottawa Separate School Trustees (1915), 1915 CanLII 493 (ON CA), 34 O.L.R. 335, at p. 343)

[10] The Judicial Committee of the Privy Council upheld the Appellate Division’s decision and affirmed that s. 93 did not protect French-language instruction (The Board of Trustees of the Roman Catholic Separate Schools of the City of Ottawa v. Mackell, 1916 CanLII 418 (UK JCPC), [1917] A.C. 62, at pp. 70‑72).

[11] Seventy years after Regulation 17 was made, the framers of the Charter adopted s. 23, which enshrines in the Constitution the right of citizens from the country’s English and French linguistic minorities to have their children receive instruction in their language where the number of children so warrants. In adopting that section, they sought “to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority” (Reference re Secession of Quebec, at para. 74). By doing so, they definitively closed the door on language policies that would prevent instruction in the language of a minority, and chose an approach that favoured the promotion and development of minority language communities across the country.

[12] The historical and social context at the root of language rights in education makes clear the unique role of s. 23 in Canada’s constitutional landscape. In an oft‑quoted passage, Dickson C.J. illustrated the section’s importance by stating that it represents a “linchpin in this nation's commitment to the values of bilingualism and biculturalism” (Mahe v. Alberta, 1990 CanLII 133 (SCC), [1990] 1 S.C.R. 342, at p. 350). More recently, in Association des parents de l’école Rose‑des‑vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139 (“Rose‑des‑vents”), Karakatsanis J. noted that Canada has a bicultural founding character and that its commitment to bilingualism sets it apart among nations (para. 25, citing Assn. des Parents Francophones (Colombie‑Britannique) v. British Columbia (1996), 1996 CanLII 1455 (BC SC), 27 B.C.L.R. (3d) 83 (S.C.), at para. 24).

[13] However, the importance of s. 23 is not based solely on its role in the formation of Canada’s identity as a country. The section is also important because of the role it plays in the identity of Canadians as individuals and as members of linguistic communities. Section 23 is intended to preserve culture and language, two core elements of the notions of identity and well‑being of individuals and communities (W. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995), at p. 89).

[14] In Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 S.C.R. 721, this Court noted, on beginning its analysis, “the essential role that language plays in human existence, development and dignity”, and its importance in “bridg[ing] the gap between isolation and community” (p. 744). In Mahe, the Court stressed the interplay of language and culture, stating that “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. Language is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it” (p. 362). And in Rose‑des‑vents, at para. 26, the Court endorsed this comment by the Royal Commission on Bilingualism and Biculturalism: “[l]anguage and culture are not synonymous, but the vitality of the language is a necessary condition for the complete preservation of a culture” (Report of the Royal Commission on Bilingualism and Biculturalism, Book II, Education (1968), at p. 8).

[15] I would add that in conducting the analysis under s. 23, a court must bear in mind that this section has three purposes, as it is at once preventive, remedial and unifying in nature. It is intended not only to prevent the erosion of official language communities, but also to redress past injustices and promote the development of those communities (Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201, at para. 3; Arsenault‑Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at para. 27). Dickson C.J. explained this remedial purpose by reproducing the comment of Kerans J.A. that “the very existence of the section implies the inadequacy of the present regime” (Mahe, at p. 363). In the face of this “inadequacy of the present regime”, s. 23 was thus designed to alter the status quo. 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 (Solski, at para. 30; House of Commons Debates, vol. 3, 1st Sess., 32nd Parl., October 6, 1980, at p. 3286).

[16] To fully achieve its remedial purpose, s. 23 must, however, be implemented vigilantly. As this Court has noted, the likelihood of assimilation and of cultural erosion will increase with each passing school year if nothing is done to prevent them. The result is that the actual effectiveness of s. 23 is particularly vulnerable to government inaction (Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 29; Rose‑des‑vents, at para. 28). This means that the courts have a crucial role to play, as the framers made them responsible for overseeing the implementation and protection of Charter rights.

[17] I would also point out that, unlike some other rights provisions, s. 23 recognizes rights that are assessed not only in individual terms, but also on a collective level. The rights conferred by s. 23 are individual rights, but they have a collective scope. As this Court stated in Solski, this means that the courts must, in interpreting s. 23, consider each language group’s social context, demographics and history. The courts thus have the delicate task of reconciling the sometimes divergent concerns of French‑speaking minority groups outside Quebec, whose language rights have been acquired at considerable expense, with the particular reality of Quebec’s English‑speaking minority and with how French‑speaking Quebecers, who are in the majority in that province but whose language is in the minority in the country as a whole, perceive their future in Canada (Solski, at para. 5).

[18] Finally, I would note that the fact that s. 23 originally resulted from a political compromise cannot on its own justify a restrictive interpretation of the rights for which the section provides. While it is true that this Court has in the past evoked a distinction between language rights resulting from a political compromise and the other rights guaranteed by the Charter, those days are over. The Court made this clear in R. v. Beaulac, 1999 CanLII 684 (SCC), [1999] 1 S.C.R. 768, at para. 24:

Though constitutional language rights result from a political compromise, this is not a characteristic that uniquely applies to such rights. A. Riddell, in “À la recherche du temps perdu: la Cour suprême et l’interprétation des droits linguistiques constitutionnels dans les années 80” (1988), 29 C. de D. 829, at p. 846, underlines that a political compromise also led to the adoption of ss. 7 and 15 of the Charter and argues, at p. 848, that there is no basis in the constitutional history of Canada for holding that any such political compromises require a restrictive interpretation of constitutional guarantees. I agree that the existence of a political compromise is without consequence with regard to the scope of language rights. [Emphasis added.]

The Court reaffirmed this statement — that the political compromise that gave rise to language rights is without consequence for the scope of those rights — in the context of s. 23 (Arsenault‑Cameron, at para. 27; Doucet‑Boudreau, at para. 27). The result is that the cases that date back to when the Court was equating language rights with a political compromise, which include Mahe, must be considered in light of the subsequent cases in which the Court favoured a liberal interpretation that is consistent with the development of official language communities.

[19] To limit the scope of language rights merely because they resulted from a political compromise would represent a dangerous reversion. Many rights that have been granted to Canada’s minorities were dearly won over many years, and it is up to the courts to give full effect to them, and to do so clearly and transparently.

[20] I will pause here to point out that although, in this appeal, my colleagues would grant many of the appellants’ claims for relief, they systematically avoid clarifying how s. 23 should be applied so as to enhance the protection of language rights in this country. Our decision in this case must not be limited to making schools available to the appellants as if the case were one of a kind, as it is also necessary to ensure that future claimants are not forced to undertake interminable judicial proceedings in order to have their rights protected, recognized and enforced. To disregard the problems raised by an erroneous interpretation and application of s. 23, in particular the inevitable judicialization and lengthy delays that are characteristically involved in exercising language rights, is to undermine access to justice and could slow Canada’s historical progress toward the ideal being sought in s. 23: that of “giv[ing] effect to the equal partnership of the two official language groups in the context of education” (Arsenault‑Cameron, at para. 26).

B. Overview of Concepts Specific to Section 23: Sliding Scale and Substantive Equivalence

[21] I feel that it will also be helpful to briefly explain two judge‑made concepts that are specific to the interpretation of s. 23: the sliding scale and substantive equivalence. These two concepts were developed to compensate for the silence of s. 23 regarding the level of services and the quality of instruction it guarantees to official language minorities.

[22] Under s. 23, the application of the rights of official language minorities depends on there being a sufficient number of children. But the section is silent as to what number would justify the application of the right to instruction and to educational facilities. Section 23(3)(a) provides that the right to instruction in the language of the minority “applies wherever in the province the number of children of citizens who have such a right is sufficient”. It is complemented by s. 23(3)(b), which provides that the right to instruction includes a right to receive that instruction in minority language facilities provided by the government “where the number of those children so warrants”.

[23] In Mahe, this Court rejected what was called the “separate rights” approach, according to which s. 23 provides for only two rights: a right to educational facilities where there are a specific number of students and a right only to instruction where the number of students is smaller. The Court held that s. 23 must instead be understood “as encompassing a ‘sliding scale’ of requirement” (p. 366).

[24] By virtue of this “sliding scale” concept, s. 23 provides a basis for a range of educational services. The low end of the scale corresponds to the right only to instruction that is provided for in s. 23(3)(a), while the high end corresponds to the “upper level of management and control” provided for in s. 23(3)(b) (Mahe, at p. 370). In other words, at the low end, s. 23 rights holders are entitled to have their children receive instruction in the language of the official language minority, but the extent to which the minority exercises control over the provision of instruction rises with the number of children of rights holders. At the low end of the scale, the minority is entitled only to instruction in its language. In the middle, it might have control over one or more classrooms in a school of the majority or over one part of a school it shares with the majority. It might also have control over the hiring of teaching staff and over certain expenditures. At the high end, the minority has control over separate educational facilities, that is, over a homogeneous school. The number of children of rights holders might also entitle the minority to the management and control of a separate school board. In short, once the minimum threshold of s. 23(3)(a) is crossed, 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.

[25] Thus, this Court has recognized that s. 23 has an internal limit, the “numbers warrant” requirement. The courts developed the sliding scale concept in order to give substance to that internal limit. Section 23 imposes no constitutional obligation on a government where the number of students in question does not suffice to justify the creation of a minority language program of instruction (Mahe, at p. 367). The right to such a program of instruction corresponds to the low end of the sliding scale, a limit below which the government has no obligation under s. 23. In this way, the courts have recognized that public funds are limited and that governments cannot be required to set up educational facilities for a very small number of students. Where the number of students in question crosses the numbers warrant threshold, however, that number must then be situated on the sliding scale in order to establish the scope of the rights guaranteed to the rights holders by s. 23. This appeal affords us an opportunity to clarify the approach to be taken in order to situate a given number of students on the sliding scale.

[26] Section 23 is also silent regarding the quality of the instruction that must be provided to the official language minority. In Rose‑des‑vents, this Court affirmed that an official language minority is entitled to an educational experience that is substantively equivalent to that of the majority. The Court indicated that instruction is not substantively equivalent if a reasonable parent is discouraged from exercising his or her language rights because the minority language school is meaningfully inferior to that of the majority (Rose‑des‑vents, at para. 35). It follows that to assess the quality of instruction, courts must engage in a process of comparing the minority language school with majority language schools that represent realistic alternatives. However, Rose‑des‑vents concerned a situation in which the number of students enrolled at the minority language school was comparable to the numbers of students enrolled at nearby majority language schools. This appeal affords us an opportunity to determine whether the substantive equivalence test from Rose‑des‑vents applies regardless of the number of minority language students in question, or whether the assessment of equivalence must vary with the number of such students.