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Section 23 of the Charter of Rights and Freedoms, the so-called ‘Canada Clause’, guarantees minority-language education rights in the country. It protects French-language education rights in English speaking parts of Canada, and English-language rights in Quebec. It is a right linked to a sliding scale, which means that governments must provide funding for classrooms and schools wherever it is warranted by the number of children from the minority language group.
In Nova Scotia, we know this section as one of the safeguards for French-speaking Acadian communities.
Recently, this section of the Charter was at the centre of a Supreme Court of Canada case, and the decision of the court, whatever it may be, is likely to change our understanding of minority-language education rights.
The case, to give the long title, is Conseil scolaire francophone de la Colombie-Britannique, Fédération des parents francophones de Colombie-Britannique et al. v. Her Majesty the Queen in Right of the Province of British Columbia, et al. (Docket 38332). (All available documents, including webcast proceedings, can be found at www.scc-csc.ca/case-dossier/info/af-ma-eng.aspx?cas=38332.)
case began in 2010 when the French-language school board in British Columbia went to court, arguing that the province underfunded the minority French-language education system and thereby violated their constitutional rights. The trial ended in 2016, with a partial victory for the school board, but subsequent appeals by both the board and the government saw the case eventually move on to the Supreme Court.
The appellants, Conseil scolaire francophone de la Colombie-Britannique and others, argued that their case concerned the scope and application of Section 23 and they posed five questions to the court. Three of those questions are crucially important across the country. How should the number of students in a French-language school be situated on the sliding scale when that number is less than the number of students in the neighbouring English-language schools? What is the test for assessing whether parents are receiving what they are entitled to receive? And, given that parents have not had access to French-language schools, can the province require the Conseil to prioritize capital projects that address breaches of section 23?
The respondent, that is the government of British Columbia, argued that the sliding scale should be proportionate and used only in a local context, matching costs, practicalities and educational requirements to the specific needs of a community. Government could only do what was ‘practically possible’ for minority-language students. As for capital projects, it was estimated that the cost to build the number of classrooms and schools for French-language students in BC could cost more than $350 million; a number that if paid would prevent the government from completing other projects. For that reason, it was suggested, building work must be prioritized, and that means some communities would have to wait for their rights to be realized.
provinces have acted as interveners in this case. The Attorney General of Nova Scotia wrote to support the argument put forward by the government of British Columbia. So too did the government of Prince Edward Island, which also warned of ‘an impractical financial burden on provinces’ should the appellants win.
The Assembly of Manitoba Chiefs, another intervener, wrote of the ‘reverberating impacts of this appeal on First Nations’, maintaining that ‘Governments should not be enabled to justify the infringement of Treaty and aboriginal rights based on financial considerations’.
The Supreme Court has reserved their decision in this case. And so we wait.
In the meantime however we need to talk about the questions raised and familiarize ourselves with the materials of this case. Again, the Court’s decision has the potential to affect key components of education, things like school size and funding, but more importantly it will strike a balance between rights-based education and the government’s obligation to pay - and that is something that affects us all.
Adam Davies is a Pugwash resident and former member of the Chignecto-Central Regional School Board. He works with the Cumberland Public Libraries.
