MINORITY LANGUAGE EDUCATIONAL RIGHTS
Education is the most explosive issue dividing French and English Canadians. The Manitoba school crisis, Regulation 17, St. Leonard, Penetanguishene, Bill 101; the crucial spark of conflict which ignited these terrible conflagrations, whose charred remains litter Canadian history, is school conflict. This has been so since the origin of racial enmity in Canada; so it remains today. There will be no lasting accommodation between French and English Canadians until just settlement of the education question extinguishes the last smouldering ember of fear about schools. French and English Canadians will always anxiously ask themselves what is being made of their children. "Hence the intense fierceness of the discussions bearing upon this subject: what is at issue is...the very destiny of two people and two civilizations".(1)
Concern about the security of minority schools subdued enthusiasm for Confederation of the British North American Colonies in 1867. At that time, Canada's population was predominantly divided along linguistic/religious lines, its inhabitants generally being English Protestant or French Catholic. A proposal that exclusive legislative power in relation to "Education" rest with the provinces was unacceptable to delegates at the Quebec Conference in 1864. D'Arcy McGee proposed a compromise to blunt the force of provincial power. He added this proviso:
McGee's amendment lacked sufficient teeth to reassure English Protestants in Quebec. Their pressure inspired the Government of the then United Province of Canada to introduce legislation establishing a separate Protestant department of public education in Lower Canada and the same for the Catholic minority in Upper Canada. Bitter opposition, particularly against further extension of Catholic educational rights, forced withdrawal of these very radical guarantees.
Alexander Galt put forth a further check on provincial powers at the London Conference in 1866. Under Galt's amendment, an appeal would lay to the federal executive against provincial laws affecting Catholic or Protestant education privileges. The federal legislature would have power to implement the executive's decision by legislation, if the province refused to do so. Because of the close correspondence between religion and language which then existed it would have been reasonable for the constitution makers to suppose that this protection for religious minorities would equally protect the minority position of the French and English languages.
The London Conference resolved that Education should be a provincial matter, as qualified by the McGee and Galt amendments. The Imperial Parliament enacted this system as section 93 of the British North America Act, 1867, now the Constitution Act, 1867. Canadians have lived under it since.
We now know that the nineteenth century constitution makers utterly failed to find the right constitutional formula to prevent collisions between Catholics and Protestants or French and English over schools. In 1890, the Manitoba English majority attacked French Catholic schools by depriving them of all public support from the tax base.(3) In Brophy v. A.G. Manitoba(4) the Privy Council agreed that Manitoba's legislation affected rights of the Catholic minority in such sense as to entitle them to apply to the Federal Executive for relief. The blunder of the Galt amendment stood out in bold relief when the Manitoban minority applied. The Government of Canada asked the Manitoba Government to restore Catholic educational rights. Manitoba refused. A protracted debate took place in Parliament. Introduction of a remedial bill led to defeat of the government. The special legislative machinery was not used on that occasion, and has never been used since, despite repeated pleas from minorities subjected to similar aggression. To all intents and purposes, the Galt amendment today is a constitutional dead letter -- an original Canadian bad idea, discarded on the scrap heap of constitutional law. As Chief Justice Deschenes rightly said in P.S.G.B.M. v. Minister of Education:
This left D'Arcy McGee's proviso(6) as the sole constitutional bulwark against provincial legislation hostile to minority schools. This provision proved little more successful than the ill-fated Galt amendment. It offered no check to Manitoba's attack against Catholic schools during the Manitoba school crisis,(7) a fact which prompted the Privy Council to add gratuitously in Brophy's case: "The construction put by this Board upon [s. 93(1) of the B.N.A. Act, 1867] reduced within very narrow limits the protection afforded ... in respect of denominational schools".(8)
Just how narrow was revealed in Ottawa Roman Catholic Separate School Trustees v. MacKell. In this case, the Privy Council considered the constitutional validity of Ontario's notorious Regulation 17, which restricted French as a language of education in Ontario schools. The Board held that the McGee Amendment only protected "a class of persons determined according to religious belief, and not according to race or language". Therefore, the protected right of the Ontarian minority "does not involve the right of determining the language to be used in the schools".(9)
Regulation 17, accordingly, could validly prohibit the use of French as a language of instruction. In Tiny Roman Catholic Separate School Trustees v. The King the Board pointed out that, as against constitutionally protected separate schools, section 93 of the Constitution Act, 1867 reserved to the Ontario legislature "power to mold the educational system in the interest of the public at large".(10) The regulating power was broadly conceived; it was "a full power of regulation", sufficient to permit Ontario to determine "the courses to be pursued and the extent of education to be imparted." The province could stipulate for organization, government, discipline and classification in the separate schools. In short, section 93 invested Ontario with "a real control of the separate schools;"(11) the significant limit was that Ontario could not "abolish" separate schools. In this case, Ontario's power was held sufficiently broad to deprive the separate schools of all public funding after grade eight.
These cases apply equally to English minority schools in Quebec. The Protestant School Board of Montreal was rudely reminded of this in 1976 when it launched a challenge against Quebec's Bill 22 under the McGee amendment.(12)
Bill 22 restricted the use of English as a language of instruction for certain immigrants. Chief Justice Deschenes said coldly:
Exasperated,(14) the Court dismissed the Protestant School Board's attack against Quebec's Official Language Act.
In this unsatisfactory constitutional position the matter smouldered for upwards of one hundred years. Repeatedly, sparks broke loose to ignite savage racial hostility in both French and English Canada. Always, in the interim, the school question generated sullen suspicion, hostile remembrances.
Throughout the 1970's, more than ten bitter battles were waged in Ontario by regional francophone minorities for the establishment of French language schools. All of these skirmishes were fought against a background of broader conflicts engendered by separate school funding and administrative control of minority schools. During this period, ninety-five per cent of Ontario francophones were educated in the separate school system. These schools were inadequately financed, receiving funding at approximately fifty per cent of the rate per pupil as public schools.(15) After grade ten, they received no funding at all. The parents had to pay public school taxes, and pay again, a second time, to privately finance the high schools. If parents were unable to afford the tuition, the child had to change course in midstream, part company in grade 10 from life long friends, and attend public school. It is only recently, with Ontario's controversial decision to top up the funding provided to the separate schools,(16) that the separate system is beginning to emerge from its stingy financial past. Anyone who saw the inside of a separate school in the 1970s knows how inadequate was the financial base, especially as compared with the public schools. There were no projectors, computers, secretaries or other expensive facilities which then saturated Ontario's public schools.
In Quebec, the situation of the anglophone minority has deteriorated remarkably in recent years. In 1974, Quebec determined to shrink the English school system. The Official Language Act [Bill 22] set the policy intensified in successive Quebec language laws: English instruction would be offered only to the then existing English community. No new enrollments would be permitted. This reversed Quebec's historic policy of freedom of choice in education. Bill 22 provided that French was the language of instruction in Quebec, and that while school boards could continue to offer English instruction, they could only do so for students who possessed "sufficient knowledge" of English.(17) Sufficient knowledge was to be determined by language tests, with ultimate decisional authority as to those qualified left to the discretion of the Minister. The intent was to freeze the growth of English education, and to direct most immigrants into the French educational system.
Bill 101(18) further tightened the noose around Quebec's anglophone community. English education was limited to the children of anglophones then in Quebec who had been educated in Quebec -- the historic Quebec English. All others had to attend French school. Bill 101 went so far as to deprive Canadian citizens moving to Quebec from elsewhere in Canada of the right to send children to English school unless the parents had received English elementary instruction in Quebec. Suppose, under this policy, that a person is transferred from Toronto to Montreal. The family have two children in Toronto high school. The children speak only English. Under Bill 101, those children could only attend French school.
The intent of Bill 22 was to limit the English community; the purpose of Bill 101 was to shrink it.(19) The principal tool to accomplish this objective was to require immigrants to attend French school. This deprived the English community of its traditional source for replenishing its ranks. Bills 22 and 101 were spectacularly successful in their own terms. English enrollments fell consistently every year after 1976-77, from a high in that year of 41 per cent to a low in 1991-92 of 28 per cent. The contraction of immigrant enrollments in anglophone schools was even more dramatic, falling from a high in 1970-71 of 92 per cent to a low in 1987-88 of 34 per cent.(20) In brief, Quebec resolutely attacked the size of the English community, and shrivelled it.
How can we evaluate the pre-Charter history of minority language education in Ontario and Quebec? Was it fair? Was it just? Was it a solid basis upon which French and English Canadians could labour together for the commonweal, in the shared task of nation building? I answer that Canada's embittered history of minority language education weakened the capacity of Canada to endure united. The architects of Confederation failed to find the right constitutional formula to regulate a problem which they rightly foresaw as threatening to the success of the Canadian Federation. Despite the earnest efforts of Canada's founders, minority language education conflicts repeatedly raged out of control for the next hundred twenty-five years, poisoning development of Canadian unity.
Months before the Assemblée Nationale enacted Bill 101 Premier Levesque wrote to the Premiers of the English speaking provinces. He suggested that the provinces conclude "accords de reciprocité," by which English speaking children from another province would have the right to attend English language schools in Quebec if that other province guaranteed the same right to children of Quebec francophones. Prime Minister Trudeau rejected Levesque's overture out of hand; at his urging, the provincial premiers did likewise. The Prime Minister expressed contempt for Quebec's approach: "One does not negotiate on the head of children".(21)
Reciprocity was raised at the First Ministers' Conference in St. Andrews late in 1977. The St. Andrews discussions produced a crucially important agreement in principle; the Premiers recognized the need to maintain and develop minority language rights through the educational system. The premiers' thinking flowed from a reawakened sense that Canada needed to control the hostilities sparked between the linguistic communities over schooling. It was expressed in this declaration:
The St. Andrews principle was reaffirmed in a communique issuing from the Premiers' Conference held the next year at Montreal. The broad principle remained the same, but changes in the draft reveal that work at the provincial level during the preceding year had developed the Premiers' thinking. The joint statement declared:
These are the discussions which resulted in entrenchment of minority language educational rights in the Canadian Charter of Rights and Freedoms. The Prime Minister and Minister of Justice have said repeatedly that Section 23 of the Charter captures the agreement worked out by all Premiers at the St. Andrews and Montreal Conferences.(24)
Section 23 of the Charter provides:
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.
(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.
(3) The right of citizens of Canada under subsections (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 education facilities provided out of public funds.
Section 23 creates rights which attach to parents. In order to qualify parents must satisfy three conditions:
(1) Canadian citizenship;
(2) (a) parents must have learned French first and still understand it (English in Quebec); or
(b) parents' primary school instruction must have been in English or French in Canada; or
(c) the parents must have or must have had children in English or French primary or secondary schools in Canada.
(3) the numbers of children entitled to the right must be "sufficient to warrant" public funding.
Parents in Quebec cannot qualify under the maternal language stipulation [condition 2(a)] until that province assents.(25)
Immigrant parents cannot qualify. Section 23 does not dilute the plenary power of the Provinces to direct the children of immigrants to English or French language schools. The reasons why section 23 does not extend minority language educational rights to immigrants are rooted in the history of Quebec's language politics of the 1960s and 1970s, and are important to understanding the resulting shape of the constitutional guarantee.
The language of education for immigrants became a major preoccupation of Quebec at least since 1960. In that year, the census first revealed that most immigrants to Quebec chose to send their children to English schools, and thereby swelled the ranks of the anglophone community. Studies done for the Gendron Commission (1972) showed just how concentrated was the anglicization of immigrants in Quebec, and how important was this phenomenon to Quebec's linguistic demography. The Gendron studies revealed that by the late 1960s, of 43,500 allophone (non-English non-French speaking) children, almost 40,000 were enrolled in English schools. "English-language schools ... were becoming the primary agency through which immigrants prepared their children for life in Montreal -- in English-speaking Montreal."(26) Immigrant anglicization, together with a sharply falling francophone birthrate, appeared to be the principal forces impacting on Quebec's linguistic composition. The trend these forces seemed to presage was significant dilution of Quebec's francophone majority.
Throughout the late 1960s the future of Quebec's linguistic composition became a central preoccupation of demographic studies in Quebec, and the significant demographic trends were widely debated in the letters and opinion columns of Le Devoir.(27) Francophones worried seriously about the possibility of their own minorisation in Quebec. This anxiety worked its way into francophone political consciousness. By the end of the 1960s political coalitions of all stripes called for new educational policies to deal with this problem. The climate of opinion became inflammatory when in 1967 the Gautier Commission advocated "the energetic intervention of public powers" to end freedom of choice in education and to require immigrants to send their children to French school.(28)
In 1967 the St. Leonard school board decided to phase out bilingual classes, and to force Italian immigrant children into French schools beginning in 1968. The immigrant parents organized into a Parents` Association to mobilize support, and forcefully advocate their position. The school board hesitated, deciding to delay implementation for a year. A Francophone organization, the Mouvement pour l'integration scolaire [MIS], formed in opposition, committed to "French as the sole language of instruction in the public schools of St. Leonard."(29) Severe riots exploded. The MIS declared its goal of creating "10, 20, 50 St. Leonard crises"(30) in order to force the polarization of the language issue throughout Quebec. The crisis deepened as the Parents` Association and the MIS enlarged the base of their supporters, eventually propelling the entire spectrum of political opinion to take a stand on the volatile language issue. The instability of Quebec's historically peaceful language politics now stood out in bold relief, spiralling into a dangerous crisis that was to erupt repeatedly in different forms throughout Quebec for the next 25 years.
Despite criticism of the MIS by political leaders from all parties,(31) the Government seemed unable to control the situation. Violence, bloody demonstrations and bomb threats poisoned the climate of political opinion on la question linguistique. On September 10, 1969 a successor movement to the MIS, the Ligue pour l'intergration scolaire [LIS], organized an incendiary march through St. Leonard's Italian neighbourhoods to exert pressure for unilinguism throughout the schools attended by Italian immigrants. This ignited a perilous riot in which many were injured and arrested, and which terminated only when the Riot Act was read, curfews were imposed and severe public order measures were subsequently enacted.(32) In October, after an earlier failed attempt at legislative control, the Union Nationale government forced legislation through the National Assembly to respond to a worsening situation. Bill 63(33) was Quebec's first serious attempt at language legislation, and it was a conspicuous failure. Section 2 of this legislation provided immigrants and all others with freedom of school language choice, making good on the statement of the Premier the preceding year that "Bilingualism is still official in Quebec, and it will remain so ..."(34) Bill 63 failed to defuse the language issue. Widespread civil disorder resulted, followed by a ban on all civic demonstrations without prior approval of the Chief of Police.
Unilingualism activists continued to gain supporters for the next five years. In 1974, the Liberal government made a second attempt to quiet the language of education controversy by comprehensive language legislation. Bill 22 restricted immigrants to French language schools unless English was the child's maternal language(35) or the child could establish competence in English by testing.(36)
By then, the climate of opinion had hardened significantly. Bill 22 was a second policy disaster. In searching for a middle ground on the language of education issue, the government overlooked the reality that there was no middle ground. Bill 22 frustrated or enraged both anglophones and francophones. In 1977, the new Parti Quebecois government made a third attempt at regulating the language of education. Bill 101 directed all immigrants into French kindergarten, primary and secondary school, and limited English education to the historic English minority, those Quebec anglophones with significant roots in Quebec.(37) This placed a cap on the English school system, and presaged its eventual decline.
In language and legislative concepts, section 23 of the Charter bears a close similarity to Quebec's Bill 101, a fact to which the Supreme Court drew attention in A.-G. Quebec v. Quebec Association of Protestant School Boards. It is without question that section 23 was modeled on the social problems addressed by sections 72 and 73 of Bill 101. As the Supreme Court stated, Bill 101 was "the prototype of regime which the framers of the Constitution wished to remedy by adopting s.23 of the Charter."(38) Section 23 reconstructs legislative categories derived from Bill 101, refashions these categories into rights of access to minority language education, expands the rights of access beyond those narrow situations foreseen by Bill 101, and superimposes this intricate constitutional discipline over Quebec's school system, as well as all other Canadian school systems.
Section 23 leaves intact Quebec's highly popular requirement that immigrants from other countries must attend French school. However, section 23 does not tolerate interference with the freedom of choice of Canadian citizens in this way. Where numbers warrant, qualified Canadian citizens moving to Quebec from other provinces have a constitutionally protected right to send their children to English school. This constitutional design veered section 23 directly into the path of Bill 101, premising an immediate constitutional collision. The crash occurred in 1984; the provisions of Bill 101 which required Canadian citizens moving to Quebec to attend French school were rendered of no force or effect.(39) In theory, this cut away the cap Quebec had placed on the growth of the English school system. As it turned out, in practice, the numbers of children involved were not that significantly high.
Minority language educational rights under the Charter were designed with Quebec in mind in a second sense. The Charter grants special liberties to Quebec not granted to other provinces. In contrast to other Canadian provinces Quebec is not required to provide minority language educational rights to citizens whose maternal language is English until Quebec agrees to do so.(40) In concept, therefore, it is anticipated that in the short term section 23 will operate somewhat differently as between Quebec and English Canada.
How important is it to the long term development of Canadian minority language educational rights that section 23 was modeled on an interface with Bill 101? Does the fact that section 23 was drafted with Bill 101 specifically in mind mean that there will be significant difference in the way section 23 operates as between French and English Canada?
Certainly there is this potential. The right to French instruction under section 23 applies only where numbers warrant. Quebec has always had a significant anglophone minority, thickly concentrated in specific geographic regions of the Province. This level of concentration is less true of many francophone minorities in English Canada. If the impact of section 23 depends on its derivation from Bill 101 and the specific situation in Quebec, the provision may not offer equal protection to French minorities outside Quebec because of their more widely dispersed demography. A reading of section 23 which concentrated on its origins in Bill 101 would moderate its importance in English Canada in reshaping the political landscape of minority language education conflicts.
I have argued that the purpose of section 23 is to control the dangerous linguistic pathology which flares up repeatedly throughout Canadian history. If this be correct, it would seem unwarranted to attribute too much importance to the fact that the framers of section 23 intended an immediate constitutional rendezvous with Bill 101. Politics always focuses on the immediate, and uses the language of present concerns. The Quebec clause of Bill 101 was a pressing controversy at the birth of the Charter. It is hardly surprising to find section 23 clothed in part in the concepts and language of immigrant anglicization which Bill 101 addressed. Section 23, however, is more. Constitutions are meant to endure for the long term. Courts interpret them with "an eye for the future;" courts strive to create "a continuing framework for the legitimate exercise of governmental power" and for "the unremitting protection of individual rights and liberties."(41) It is for the long-term health of Canada that it is suggested that Courts sitting under section 23 look far beyond the immediate concerns of its quaint language and legislative categories.
A second problem with the design of section 23 relates to earlier language suppressions. The majority of school language suppressions occurred in English Canada. Throughout most of Canadian history, until the mid-1970s, Quebec treated its English minority with benign neglect. One result of the suppression of French language education in English Canada is that French minorities were greatly reduced in size and proportion of population. English schools were cauldrons of assimilation where francophones lost the French language. It would be strange if the cruel but successful assimilation practices of yesterday were a valid reason why today certain provinces have reduced constitutional obligations to provide minority language education. A strict, literal reading of section 23 could require that result, since minority language education rights accrue under section 23 to parents who "first learned and still understand" French. Many ethnically French parents in English Canada were not instructed in French, do not currently understand French and do not have children instructed in French because of the assimilating effects of past provincial policies. Under the Charter, assimilated francophones such as these are not entitled to minority language education for their children. This is yet another situation in which the strict, literal language of section 23 could cause the provision to operate more anaemicly in French as in English Canada. Although several interpretive strategies could escape from the results of this literalism, particularly methods for calculating "where numbers warrant," it is important to emphasize here the potential danger of concentrating attention on the specific phrasing and legislative categories of section 23.
A purposive reading of section 23 will have to look beyond section 23's convoluted constitutional phrasing to the broad goal of making a new departure in Canadian minority language education. The confederation compromise about minority language education failed the test of Canadian political reality because it failed to produce linguistic peace. Recurrently in Canadian history, minority language education conflicts threatened to tear Canada asunder. Section 23 offers Canadians a second opportunity to construct a durable political and institutional framework within which minority language educational conflicts can be played out. The purpose of section 23, I argue, is to remanufacture political institutions, such as Ministries of Education, school boards and their sub-divisions, within which minority language educational conflicts will be worked out as an interest aggregating calculus which seeks fair and mutual advantage. The purpose of section 23, I argue, is to dismantle those structures in political institutions which cause minority language education conflicts to be waged as a zero-sum fight to the death for the soul of Canada.
Section 23 contains a further condition which presages conflict with immigrant or multicultural Canadians. Paragraph 23(1)(a) requires claimants to show that their "first language learned and still understood" is that of the English or French linguistic minority population of the province in which they reside. The children of many multicultural families learn two languages together. Many others learn neither English nor French first. What is their position with respect to minority language educational rights?
The Charter nowhere defines what is meant by "first language learned and still understood." Section 23 could mean first "official" language learned and still understood. That interpretation would entitle multicultural francophones whose first language is other than English or French, but who first learn English or French in Canada in a Province where that language is the minority language, to qualify for minority language educational rights.
In Mahe, Chief Justice Dickson suggested that the mother tongue stipulation ought to import a notion of cultural identity:
Does the emphasis on cultural connection indicate that those who claim entitlement under the "first language learned and still understood" proviso also need to be members of the dominant cultural group of the minority language? This is entirely possible as Chief Justice Dickson in Mahe stated that the purpose of section 23 is "to preserve and promote the two official languages of Canada, and their respective cultures."(42)
This issue is important. The emphasis on culture may imply that those who speak the minority language of a province but who are not members of the dominant minority cultural group speaking the minority language may be excluded from section 23 rights. Under this interpretation, a Franco-Ontarian who is a member of the French Canadian culture would qualify. But a French-speaking Canadian citizen of Haitian origin would not qualify. Thus, Franco-Ontarians would govern French schools in Ontario, and would have power to exclude multicultural francophone children from instruction in the schools, and multicultural francophone adults from jobs and positions of power in school governing structures. These conflicts have already erupted in Ontario's minority language educational system.(43)
The first point to note is that section 23 cannot be interpreted in light of sections 15 or 27 of the Charter, the equality and multicultural sections. Section 23 must be interpreted specifically without reference to sections 15 and 27. The Supreme Court of Canada so required in Mahe v. A.-G. Alberta:
While sections 15 and 27 are not relevant to interpretation of sections 23 and 16 of the Charter is directly relevant. Section 16 provides:
In S.A.N.B. v. Association of Parents for Fairness in Education, Chief Justice Dickson stated:
Section 16 makes clear that sections 16 to 23 of the Charter mean to protect the English and French languages in Canada. It is true, as the Supreme Court noted in Mahe, that language is an important part of cultural development. Languages are protected by protecting cultural communities. This does not mean that French Canadian or Franco-Ontarian culture is to be protected because of the Charter's official languages provisions. Such a conclusion begs the important question. What is French linguistic culture?
French linguistic culture refers to the culture of the French language. Section 16, as an interpretative aid, makes clear that it is the culture of the French language that is to be protected. In Canada, the culture of the French language differs from French Canadian or Franco-Ontarian culture. The culture of the French language is the real, operating culture in which the French language lives. It is the culture which nourishes the French language. It is the culture which, if government protects it, will also protect the French language.
The census makes clear that in Canada the French language lives in a pluralistic mosaic of ethnic and national origins. People from many different ethnic and national derivations speak and nourish the French language. French linguistic culture is made up in the majority by French speaking immigrants and their descendants. These people, although coming from many different ethnic backgrounds, including, but not limited to, French Canadian backgrounds, have in common that they come from French speaking countries or French speaking communities. In Canada, the French language lives in a pluralistic cultural mosaic of many ethnicities and nationalities, just as much as does the English language. It is that pluralistic culture which must be protected in order to protect the French language in Canada.
The issue whether "multicultural" francophones and anglophones qualify under paragraph 23(1)(a) of the Charter is of vital significance given that the numbers in these communities are so significant. In Ontario, for instance, "multicultural" francophones outnumber Franco-Ontarians. One would expect the size of this community to increase, given Canada's permissive immigration policy. Under that policy, immigrants in numbers equalling almost one per cent of total Canadian population annually arrive on Canada's shores.
Immigrants to Canada do not qualify under section 23(1)(a) until they become Canadian citizens and can establish that their first language learned and still understood is that of the minority language of the province in which they reside. Thus, many immigrants will never be able to assert rights under paragraph 23(1)(a). Still, there are many who might arguably qualify.
The recognition of "multicultural" official language minorities under paragraph 23(1)(a) of the Charter has the potential to impact significantly on Canada's language conflict. This is a process which is already well at work in Quebec, but surprisingly, as a result of Bill 101, not the Charter. Before Bill 101 required immigrants to attend French schools, virtually all of Quebec's ethnics attended English schools, with the result that the French schools were uniformly composed of French Quebecois. The impact of Bill 101 has been dramatic and rapid. By 1987 more than 35 per cent of enrolments in French schools were not of French Quebecois ethnic origin.(46) The result on the body politic of French-speaking society in Quebec has been profound, and will intensify. For the first time it appears that Quebec society will be profoundly influenced by immigrants -- that, counter-intuitively, "in ensuring Francophone demographic survival, [Bill 101 will] also recast French-Quebecois culture in ways that might disturb many nationalists."(47)
The same process may begin to work on Francophone culture outside of Quebec under the impact of section 23 of the Charter. Section 23 has the potential to remake the body politic of French speaking minorities, and to refocus their traditional political concerns. If this happens, the tribal nature of the age old conflict between Canada's French and English communities will be subject to new forces, just as the notion of what it means to be a French Canadian or an English Canadian will be perceived through fresh perspectives. This in turn could alter Canada's bipolar and bicultural complexion. If Canada's historical conflict between French Canadians and English Canadians is spread through many different cultural communities, it is likely to mutate from its zero-sum, fight-to-the-death temper. The cultural communities have concerns in addition to language, and often more pressing to them. This multiplicity of issues offers an opportunity for coalition building across linguistic lines. If this occurs, much of Canada's historical language conflicts may be diluted in a sea of larger issues.
The acknowledgement of multicultural official language minorities thus has potential to redirect the linguistic issue from a conflict between the English and French cultures to a linguistic issue in which there are many factions, including, among others, the French and English cultures. I argue that this development will strengthen Canada's national stability. Bicultural nations tend to be divided nations. In countries where there are only two dominant cultures, cultural rivalry tends to be severe. The competition for power is a zero-sum game; one or the other community will achieve dominance and control the other. In multicultural nations, no one culture is likely to achieve complete dominance. Power is exercised by coalitions built across cultural boundaries. The impetus for coalition building and compromise between cultures is strong. The impulse to power impels towards larger and inclusionary coalitions; the winning ticket is held by the faction capable of attracting the most communities. In such a system, difference is more likely to be accommodated, even celebrated, not despised. This spirit of coalition building among cultures has potential to transform and moderate the collision between linguistic communities by cutting away the coincidence of language and culture that formerly gave the competition so much added force.
In Mahe v. A.G. Alberta(48) and the Manitoba Public Schools Act Reference,(49) the Supreme Court of Canada concentrated its rhetorical eloquence on the purpose of section 23. A first problem which the Court had to confront was whether section 23 was subject to the principle of narrow construction and judicial restraint propounded by a majority of the Court in S.A.N.B.. There, Mr. Justice Beetz had stated:
The question whether section 23 was to receive a narrow interpretation had split the lower courts previous to Mahe.(51) In Mahe Chief Justice Dickson considered whether the S.A.N.B. ruling applied to section 23. In S.A.N.B. and MacDonald Chief Justice Dickson and Justice Wilson had challenged the narrow construction principle head on -- in dissent. Chief Justice Dickson's approach in Mahe was different. He sought, instead, to chip away at the S.A.N.B. construction rule, at least as applied to section 23. This is why he stated:
This approach was repeated and reaffirmed in the Manitoba Public Schools Act Reference, although that case tends to use language cast in the mould of S.A.N.B.'s narrow manufacture of language rights.(53) In Mahe, Chief Justice Dickson went on with expansive rhetoric. Section 23, he stated, is "a linchpin in this nation's commitment to bilingualism and biculturalism". The section posits an "equal partnership" of the two official language groups in the context of education, and it intends to preserve and promote minority language and culture throughout Canada." Section 23, he declared, is "powerfully remedial."(54) This is the impressive rhetoric which the Court had been using with respect to language rights generally before S.A.N.B.
We have seen the Court's big talk about abstract language rights shrink in action before. It is well to wonder if this expansive rhetoric is yet more judicial hot air that will quickly chill when the Court applies section 23 to the inevitable conflicts about school power and funds. As we have seen, some of the Court's best work is talking tough about language rights. As yet, the Court has been given no hard section 23 cases on which to test the remedial strength of its robust rhetoric. No genuine remedies were awarded in either of the Supreme Court's section 23 cases -- only declarations.
History teaches the importance of refocusing the xenophobic prism through which Canadians view rival language groups. When allowed to rage unchecked, language enmity poisons Canada's political culture and threatens Canada's political stability. Canadian history suggests that the best antidote to linguistic competition is for linguistic majorities to err on the side of generosity in accommodating linguistic difference. An important reason for this is that Canadian linguistic rivalry has been played out on an unfair playing field. The deck has been crudely stacked against linguistic minorities. Majorities are used to winning school battles, and, with impunity, to humiliating their minority rivals.
If section 23 is to disrupt the status quo in a meaningful way, it will have to alter the balance of power Canada's linguistic communities wield in educational institutions. Official language minorities, particularly French minorities in English Canada, have been on the bottom throughout Canadian history. They have been the object of repeated institutional attacks, particularly by provincial legislatures and school boards. The reason why this scenario is repeated over and over again throughout Canadian history is structural. Unfair competition for resources is a structural feature of the majoritarian premise underlying governing structures. A French minority needs a new class. The minority must discuss this in school governing structures, which are dominated by the English majority. The conflict reduces quickly to a question of French against English. Passions rise and sometimes explode. The French minority needs a new school. It has to ask the school board, which is dominated by the English majority. The political competition for funds quickly reduces to a French-English conflict. Passions rise and sometimes explode. Because of numbers, the competition is stacked against the minority, and the outcome tends to disappoint them, oftentimes bitterly. The minority has probably quarrelled with the majority before; this may be yet another battle in a long standing dispute. The minority cannot get out of this dispute because it pays taxes to the school board, and must rely on the school board for a crucial service to its children. The unfair treatment of the French minority draws unfavourable comment from Quebec. The seeds of another language explosion are planted.
For section 23 to have a meaningful remedial outcome, it will have to reshape the institutions in which official language minorities are ground down to the bottom -- Ministries of Education, school boards and their administrative subdivisions. Section 23 would have to single out official language minorities for special constitutional benefits and confer on them special constitutional power in order to equalize the competition and reshape school politics. Section 23 would have to address those forces in provincial education systems which produce zero-sum linguistic conflict, and push linguistic minorities to the bottom. The zero-sum premise of linguistic conflict must be destroyed. The institutions within which school politics are played out cannot be constructed on a premise that the minority linguistic community can be eliminated. Section 23 would itself have to be the remedy to these disruptive forces and this disordering premise. Section 23 would have to entitle the parents of language minority children to minority language instruction as a matter of right; it would have to imbue linguistic minority parents with a form of self government over provincial education institutions, and in so doing it would have to provide for some institutional and territorial separation of the language communities. Section 23 would have to entitle official language minorities directly to a portion of provincial education budgets and power. In short, section 23 would have to create political, institutional and territorial shields around minority language populations in an attempt to protect them from the severity of Canada's hazardous past.
Perhaps the Supreme Court's expansive rhetoric can be moulded into a coherent doctrine which expounds the purpose of section 23 out of the recurrent social pathology which punctuates Canadian history, and which the St. Andrews and Montreal conferences tried to correct. In this vein, it may be well to think of the purpose of section 23 as creating new procedures and institutions within which linguistic conflict will take place -- essentially as a new mechanism for linguistic conflict resolution. So conceived, it would be the aim of section 23 to keep language conflict within politically tolerable limits by deflecting it into political, legal and institutional channels where Canada's dangerous racial enmity may be blunted, moderated and managed. An early core mission of section 23 thus would be to redefine the political, legal and institutional landscape of minority language education politics so that the inevitable linguistic competition that takes place therein is fair and moderate. Over time, section 23 must work out a level playing field where political contentions are predicated upon achieving balanced results, where school politics reduce to a calculus of interest aggregation and accommodation, where the language divide either becomes irrelevant or so highly visible and impermeable that it cannot be breached, and where the contestants are no longer encouraged to try to prejudice or annihilate their competitors.
That section 23 intends to break with the past was recognized by the Supreme Court of Canada in A.-G. Quebec v. Quebec Association of Protestant School Boards:
A break with the past would be a good start for exposition of s. 23, because with respect to minority language education, the past has been a dangerous failure. It will not assist Courts to look for the bright spots of Canadian history in this area for the simple reason that there are no bright spots. The history of minority language education in Canada is a legacy of progressively deep, violent and uncontrollable conflict that threatens the security of the Canadian nation.
VII
Although formerly the subject of debate, the Courts have now settled that Section 23 of the Charter guarantees one right, and one right only. This is a right to minority language "instruction." A crucial issue concerns the interpretation of "instruction." The concept itself is wonderfully ambiguous, no doubt as a result of the high political cost the constitution makers would have had to pay for greater specificity. Interpreting this concept thus raises a political-legal problem of great subtlety, ultimately for the courts.
The right to minority language instruction applies only "where numbers warrant." The Supreme Court of Canada found this resourceful idea implicit in the "where numbers warrant" concept of paragraphs 23(3)(a) and (b): as the number of entitled parents decreases, so, too, the content of the right to instruction contracts. The Supreme Court used the image of a sliding scale to explain this phenomenon. Whereas large numbers of students give rise to very full and detailed right to instruction, as the numbers decrease, so, too, does the content of the right to instruction diminish. When the numbers are very small, the content of the right shrinks to nothing. As Chief Justice Dickson stated in Mahe:
When courts and legislatures are presented with demands for minority language instruction, they must determine if the minority's numbers warrant any right to minority language instruction. If the numbers suggest a right to instruction, it becomes necessary to determine where along the scale the minority falls. This exercise will provide an initial approximation of the content of the right to minority language instruction.
At the higher end of the spectrum, where the right to minority language instruction is full and detailed, official language minorities become entitled to "a measure of management and control" over minority language educational facilities.(56) The Supreme Court of Canada came to this conclusion by interpreting the expression "minority language educational facilities" in paragraph 23(3)(b) in light of the equally authoritative French version, "établissement d'enseignement de la minorité linguistic." The Supreme Court reasoned that:
The ruling that "minority language educational facilities" includes some degree of management and control by section 23 qualified parents or their nominees responds to a long-standing demand of official language minorities and must be accounted a significant breakthrough. The ruling certainly corresponds with the purpose of Canada's language rights system which we have previously explored -- the amelioration of racial enmity in Canada. It remains to be seen whether pursuing the purpose of language rights in this way works in practice -- whether giving language minorities greater weight in the balance of power in school governing structures improves relations between Canada's linguistic communities.
The right of provincial minorities to manage and control the education of their children is subject to a number of qualifications. The Provinces have some latitude to determine the appropriate structures of management and control. Management and control may be delivered through structures which fall short of a school board, although in certain cases of high numbers, establishment of a minority language school board will be constitutionally required.(57) If the numbers require control structures short of a school board, the province may restrict the right to manage to those aspects of education which affect the linguistic and cultural development of minority language children. As Chief Justice Dickson stated in Mahe:
Finally, the right of section 23 qualified parents or their nominees to manage and control the minority language instruction of their children does not preclude provincial regulation. The provinces are responsible to ensure that the quality of education received by the children of section 23 qualified parents is at least roughly equivalent to that received by all other children. There is a limit on provincial regulatory power, however. The provinces cannot regulate those aspects of minority language instruction pertaining to language and culture. Management decisions in this area belong exclusively to the minority community.
As previously stated, the less concentrated are minority numbers, the less intense is the content of the right to minority language instruction. Paragraph 23(3)(a) defines the lower range of the sliding scale. At a minimum, provincial governments are required to provide minority language "instruction" in the lower range. The content of this minimum right to "instruction" has yet to be explored by the courts. The lower end of the scale is problematic, for it is here where difficulties associated with an insufficient critical mass are likely to be encountered. The minority community may have inadequate numbers to populate a school, even if one were offered. Or, it may be that a school is not offered because the small numbers of minority children offend economies of scale. Economies of scale may suggest that small numbers of minority language students be integrated with majority language students in a mixed facility.
The difficulty with mixed facilities is that an extensive body of research has determined that mixed facilities are harmful to the linguistic minority child and the linguistic minority community.(59) After extensive review, the Commissioner of Official Languages concluded that mixed schools are "little better than instruments of assimilation."(60) The Commissioner decided that this dangerous situation could be remedied only by creating for the minority the opportunity to maintain their own schools, administer them in their own language, and support them as appropriate with their own school boards.(61)
It may be that the solution to this dilemma will lie in the development of new educational technologies, a development which may receive constitutional prodding. It may be that small numbers of isolated minority children can be linked by video, by satellite, by computer networks or by other technologies that bring them together in more concentrated numbers for the purpose of minority language education. It may be that development of such linkages, together with less regular meetings in person, perhaps by systems of rotating transport and accommodation, could provide an enriching minority language education. It may be that other communication and transportation technologies yet to be envisaged can respond to the problem of concentrating together widely scattered minority students for educational purposes.
Mahe makes clear that the right to instruction includes the right to facilities, the actual arrangements by which such instruction is provided. It may be that the Court's reference to facilities in this lower range of the sliding scale will involve the Court in resolving claims for transportation, accommodation, buildings, equipment, and staff, even where the size of the minority population is relatively small. If this be the case, then the Supreme Court has already planted the seed by which minority language educational planners can respond to problems of concentrating small numbers of the minority, without resorting to the discredited institution of mixed schools. It is a strange paradox of minority language educational rights that the concept of "separate but equal" is the preferred concept. It may well be that research and development of new communication and transportation networks are necessary to support a viable "separate but equal" minority language educational system.
What numbers are relevant to determining content of the right to instruction? In Mahe, the Supreme Court of Canada began to explore this question. The relevant concept is the number of children who will eventually take advantage of the minority language education. This depends on future events, not precisely knowable at the time courts make the determination of where numbers warrant must be made. School boards are required to guesstimate this future number with the aid of two further concepts: existing demand and potential demand for minority language instruction. School boards must consider the existing demand for minority language education and the total number of persons who potentially could take advantage of minority language education. Upon these considerations, school boards must infer the relevant number -- future demand. Should the inference of future demand prove inaccurate with time, the minority's entitlements must be adjusted accordingly.
Two further factors must be considered when determining whether and to what degree numbers warrant section 23 entitlements. Decision makers must consider whether pedagogical benefits will be derived given the numbers involved. Decision-makers must also consider the cost of providing these services.
Of these two factors, pedagogical benefits are more important. The pedagogical consideration assumes that learning in an environment of one's peers is beneficial to minority language children, an assumption buttressed by the extensive research on mixed schools. Homogeneous minority language schools aim to minimize harms to the minority language child and the minority language community.
The cost consideration has regard to economies of scale. While all children must be educated, duplicative facilities and administrative structures impose significantly greater costs. Although costs can be a barrier to provision of minority language instruction, the current reality is that costs rarely are such a limitation. Provincial governments receive extensive subsidies from the federal government for minority language instruction.
The final point to be noted in Mahe regarding the "where numbers warrant" provisions is that the determination of numbers that warrant the right to instruction does not simply entail counting the number of students who will eventually take advantage of minority language instruction. Many subtle considerations relevant to the possibility of providing quality education to minority language children will come into play. A claim for entitlement to minority language instruction made in a rural district may entail consideration of the provision of funds for transport, accommodation, technology, or redrawing the existing map which defines the territorial boundaries of school boards.(62) There is no easy or obvious constitutional solution to the myriad situations in which minority language children are found throughout Canada. This is why, in the final analysis,
It is doubtful that the "educational facilities" concept can be confined to questions of instructional or administrative machinery. Section 23(3)(b) imports not only the right to have instruction provided in minority-language educational facilities, but also includes the right to have those facilities provided out of public funds. It is inevitable that qualified parents will demand public expenditure for school supplies, lunches, transportation, accommodation and other living expenses, educational technology, educational research and the like. It is equally inevitable that minority communities will demand public funding for other "educational facilities" such as minority-language educational T.V. networks and film production units.
Marchard v. Simcoe County Board of Education lends some support for claims of this kind. In this case, the plaintiff was a Canadian citizen and a resident of Ontario whose first language was French. The plaintiff sought shop facilities and improved laboratory and gym facilities at a secondary school which provided an education to his children in French. In that case, Mr. Justice Sirois held:
Accordingly, the plaintiff was granted a declaration of his constitutional right to have his children receive an education equivalent to that accorded to English language secondary schools. Furthermore, the Court ordered the defendant School Board to provide instruction and facilities equivalent to those provided to English language secondary schools including the establishment of facilities for industrial arts and shop programmes.
It may be that start up and provision of minority language education entails greater costs than the operation of existing schools. In some cases there will be a need to train new staff. In others, there will be a need to prepare new teaching materials, for example, materials in French on the geography of Alberta. There will be the need to transport minority children from more distant school districts to a minority-language school and to pay for the accommodation and other living expenses of that child while he or she is educated in the minority school. There will be the start-up costs associated with new construction and establishment of new administrative structures.(64)
The cases suggest that school boards already labour under broad obligations to finance ancillary expenses created by minority-language instruction.(65) The principle implicit in section 23 may be more severe.(66) School district maps may have to be redrawn and administrative units restructured in conformity with the new constitutional rights created by section 23, even where greater cost is the result. Provinces can no longer unduly fragment the minority community by school districting that cuts through, rather than around, the minority population. Restructuring must now adapt to a new constitutional factor that has high regard for facilitating satisfaction of the numbers test. If redistricting cannot concentrate the minority sufficiently to satisfy the numbers test, the "educational facilities" concept may suggest the provision of "facilities" other than schools. An astute regard for duality might indicate the establishment of a minority-language educational television network, in lieu of a school, to support widely dispersed regional minorities. Educational television is a well-understood means of educational development. The Department of Education may have to allocate research funds to support inquiry into new concepts which can overcome problems associated with the smaller numbers and geographical dispersion of minority language communities. Section 23 is not blind to advances in educational technology, nor without resources to force their development.
Should a provincial legislative scheme be found by the courts to be inadequate in light of section 23 of the Charter, it is important to note that the courts will hesitate before declaring the provincial education scheme invalid. Such a declaration would merely lead to the creation of a legislative vacuum in which linguistic minorities would be entirely without minority language education entitlements rather than entitlements which are simply inadequate.
The legislative vacuum created by a declaration of invalidity will not be filled by the courts. In Mahe, the Supreme Court of Canada stated that the courts will not devise an educational scheme which complies with section 23 of the Charter. This is the task of the Legislature.
Consequently, the Legislature is constitutionally obliged to enact a detailed legislative framework for fleshing out section 23 entitlements and how they are to be provided. As was stated by Chief Justice Dickson in Mahe:
The Supreme Court requires that the Legislature enact precise legislation for a reason. Repeating section 23 in the provincial education statute turns the Province's constitutional obligation to legislate into a grant of administrative power to educational officials. This effectively vests in educational officials absolute discretion to decide who is or is not entitled to the benefits of minority language education. The officials receive no guidance from the Legislature. Their authority to grant or withhold minority language education benefits is absolute.
In a famous passage in Reference re Education Act of Ontario and Minority Language Education Rights the Ontario Court of Appeal held:
Provincial schemes which are imprecise by reason that they authorize administrators to exercise discretion in fleshing out the content of section 23 entitlements or otherwise are offensive to section 23 of the Charter. Yet, rather than declaring these provisions invalid, the courts are more apt to simply declare the "concrete rights which are due to minority language parents."(67) The legislature will then be required to devise a precise educational scheme which provides the concrete rights declared by the courts to be constitutionally required. By this means, those who are entitled to minority language education rights under section 23 are protected from the undesirable predicament of being entirely without entitlement to minority language instruction pending the enactment of new legislation.
In important respects, section 23 is unlike other rights enumerated in the Charter. It reorders priorities for the expenditure of public funds. It requires the construction of schools. It reorders the allocation of educational television networks. It requires the redrawing of school districts. It involves the exercise of governmental judgment. It must be implemented by political decisions and administrative machinery.
Implementation of section 23 is problematic. Section 23 obviously invites litigation. Although litigation is inevitable, the cases produce certain undesirable effects. Litigation of this type creates strains within the community. It places the government in an adversarial position to large segments of the population. No matter what the outcome of the litigation, certain segments of the public will feel wronged. The government loses the initiative and the ability to control events. It is placed in the position of reacting to crises as they develop.
For these reasons, it is important for provincial governments to anticipate and identify intelligent strategies of implementation. It would be reasonable for each provincial Attorney General's Department, in concert with the Department of Education, to develop a plan to implement section 23. Legal interpretation of the Charter is properly a function of the Attorney General's Department. There is a role for the Attorney General's Department to play in superimposing Charter-based protections upon the existing educational system. An effective program of implementation can minimize the negative political fallout that will be created by treating the Charter as an invitation to confrontation, rather than as a blueprint for effective government.
The process of implementation is as important as the substance. It is crucial that regional minorities perceive that the process is participatory, and that they sufficiently control their collective development. The provinces would be wise to create inter-ministerial task forces of the Departments of the Attorney General and Education in order to develop implementation plans. It will be crucially important to attract community representation from provincial minority associations to those task forces. This forum could prove to be an important safety valve to release pent-up political pressure, and will help to minimize the perception of confrontation and hostility engendered by section 23 litigation.
If provincial governments are recalcitrant, or if the implementation process breaks down, courts will be faced with a totally new situation in constitutional law. They will have to exercise judgment heretofore reserved to the legislature and administration. It is a responsibility of the utmost importance.
American courts have aggressively intervened with mandatory and prohibitory relief in civil rights litigation. American courts have issued injunctions ordering large scale bussing to desegregate schools. State legislators have been required to redraw congressional districts so that "as nearly as practicable one man's vote in a congressional election is to be worth as much as another's. The physical design of mental health facilities and the minimum forms of medical care to be administered therein have been stipulated by the federal courts. Physical and social aspects of penal detention have been specified. In some of the cases, the courts get remarkably detailed in their orders, including precise specification of such things as prison refuse facilities, numbers and classification of staff to be employed in mental hospitals, conditions of lighting, ventilation and food storage in penitentiaries. In Wyatt v. Stickney,(68) the Court virtually required the legislature to meet in special session to appropriate funds to implement its order. The United States Supreme Court said this in Milliken v. Bradley:
But the remedy is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.(69)
This broad remedial power is new to Canada. The court's orders impose precise positive duties to act; they require funds to implement; they are prospective; they affect millions of people. They reorder priorities for the expenditure of public funds. They resemble legislation.
In the fact of sustained, protracted denial of rights created by section 23, remedies of this type will be necessary. If provinces, municipalities and school boards refuse to implement the guarantees of section 23, the courts will have to do it for them. This may require a new and unique arsenal of mandatory and injunctive remedies to compel the establishment of classes, the construction of schools, and the expenditure of public funds. If indeed provincial governments resist, the widest ranging constitutional actions should be brought to force compliance with the rights guaranteed under section 23. Needless to say, these actions would strain Canadian constitutionalism as never before, and may well irritate the sensitive seam along which the Canadian Federation joins two sub-national communities.
To prevent this situation, which is antithetical to the purpose of s. 23, Courts initially may consider redesigning the process of implementation which a challenged provincial government has put in place. If confronted with persistent inaction to implement section 23 by a province, it would be reasonable for a court to order the creation of an inter-ministerial task force, to declare the mandate of the task force, and to require the task force to submit a Report to the Court on an urgent timetable for approval and implementation. At such time as the Court became satisfied that the implementation process was working as it should within provincial structures, the Court could relax its grip over the process.
What impact is section 23 likely to have on the forces of assimilation? How important is section 23 likely to be in the struggle of official language minorities to preserve their communities?
Education is central to the socialization of individuals in any culture. Education dramatically shapes the individual's values, morality, reasoning processes and perceptions of the world. Like language, education colours a person's mode of being in the world. Language attracts people to specific linguistic communities, and thereby imbues character with that community's network of values, traditions, morality and sense of self in the world. Minority language education under the control of a minority language community is likely to be an important agent in forming the mindset of the community's children. As a consequence, it is said, minority language education is likely to be critical to survival of minority language communities because it affects the communities' ability to reproduce their language and culture into the next generation.
Yet it is crucial to bear in mind that the educational system is but one of many forces which shape the individual's mindset and lure people to particular communities, albeit an essential force. Other energies also impact on cultural identification and linguistic orientation.
As English is the predominant language of the powerful North American culture, no member of North American society is fully insulated from the alluring images and sounds that emanate from mass media. Mass media transmission of images and sounds produces a certain melting pot effect by attracting people to the lowest common denominator of universal mass culture, and to the English language through which it is chiefly propagated in North America. English is the predominant language of North American commerce, business, science and technology. The opportunities offered by English speaking institutions and monopolies offer enormous economic incentives to work, think, and operate in English. It would be surprising and counter-intuitive to discover that the minority language educational system alone counteracts the demographic pressures exerted by economy, mass culture and society. It would be difficult, one expects, to establish that section 23 is a cure all, or even perhaps any cure, for the assimilation of Canada's official language minorities.
However, it is necessary to pursue this point more minutely through the demographic trends. Will the children enrolled in immersion and minority language programs make a difference to the future of the official language communities?
To make a difference to the future of the official language communities the minority language educational programs would have to contribute to maintenance of the communities' size, either in real numbers or as a percentage of total population. In the long term, size depends on teaching the next generation to speak the minority language at home and in the community. This in turn depends on other factors, such as language retention, economic opportunities, migration, marriage within the language community and birth rates.
Immersion
The development and growth of French immersion programs in the Canadian education system is a recent phenomenon. As language conflict escalated in frequency and intensity, many anglophone parents rushed to enrol their children in French language programs. The first immersion class was held on an experimental basis in St. Lambert, Quebec in 1965. It was successful. French immersion programs spread rapidly across Canada, reaching enrolment levels of 258,650 in 1992-93. Immersion enrolment in every province outside Quebec has experienced constant and tremendous growth throughout the 1980's and only recently appears to have levelled off.(70) Immersion now accounts for seven per cent of students enrolled in Canadian schools.(71)
The first wave of immersion graduates has now entered post-secondary institutions and the work force. A study by the University of Ottawa surveyed graduates of the Ottawa-Carleton immersion programs. Most students enrolled in French immersion are bilingual upon graduation. The survey revealed that most graduates of French immersion programs felt that they were more open minded and receptive to French-Canadians. This is interesting given that most immersion graduates indicated that they do not have contact with French Canadians or use French outside the classroom.(72)
The attitude of immersion graduates towards Quebec nationalism is also instructive, especially when contrasted with that of anglophones who did not attend immersion schools. The immersion graduates have a more negative attitude to Quebec nationalism than other anglophones. Some immersion graduates believed that Quebec did not reciprocate or appreciate their efforts to learn French.(73)
Many parents enrolled their children in immersion programs because of indirect stimulus from the Official Languages Act. These parents feared that their children would be marginalized or fail to get high paying jobs if they could not speak French. The trend to high enrolments now seems to be coming to an end. The number of students entering immersion in the primary grades has decreased every year since 1990. Also, the immersion programs have high drop out rates.(74)
Participation in immersion has grown steadily since it was introduced. It has increased the number of bilingual anglophones throughout Canada. The greatest increases have been in the bilingual regions of the country, particularly in New Brunswick and Ontario. While the rate of bilingualism increased among all age groups, the rate of increase among anglophones under 25 is three to five times greater than the increase seen in the rest of the anglophone population. Changes in the size of minority language communities have been minimal to date. If present trends continue changes in community size will be even smaller in the future.(75) While the progress made so far is notable, the increase in the proportion of bilingual anglophones outside Quebec will likely level off if enrolments in immersion programs remain at current level. Given these facts and trends, it would be difficult to defend the proposition that immersion programs will alter significantly the demolinguistic forces eclipsing official language minorities.
Minority Language Programs in Quebec
The Anglophone population in Québec is territorially concentrated, centred primarily around Montreal, the Eastern Townships, the Outaouais region of western Québec, with additional pockets in the Gaspé, Québec City and Abitibi-Témiscamingue. English language education is concentrated primarily in urban centres. In 1986 the Anglophone minority school aged population was estimated at just under 87,000 children. The English school system is significantly larger than this however, because it attracts an additional 8,000 francophone students and 26,000 allophone students.(76)
The system is in a process of decline; the trend line is long term. In 1991-92, enrolments in the English system shrank by ten per cent.(77) Statistics Canada predicts a continued decline in both the English language community and English school enrolments.(78) Declining enrolment is accompanied by shrinking access to English education and diminished quality of education."(79)
These forces have been at work during the entire period that section 23 rights have been available. The proclamation of section 23 does not appear to have altered the forces which are eclipsing the English community in Quebec. Even in the period between 1986 and 1991 when Quebec's English population increased slightly, enrolments in English language programs continued to drop. The conclusion is thus difficult to resist that despite proclamation of minority language educational rights, English schools will continue to close. Anglophones will have even less access to English language education, and that of a poorer quality.
French Language Minorities Outside Quebec
Access to minority language education is not consistent in provinces outside Quebec. Nor are the minority language programs at similar stages of development. Furthermore, it is difficult to track the growth of minority language programs accurately because some provinces only recently began to keep these statistics separate from figures for immersion enrolment.(80)
Many children who are eligible for minority language education may be enroled in immersion programs, making it even more difficult to track enrolment data accurately. Some francophone parents send their children to the majority education system by choice. Some students for whom French is not their mother tongue may nonetheless acquire French language skills through immersion programs rather than in the minority language programs. Economic migration and changing birth rates affect the numbers of students in minority language programs. Further, the relative size of the whole minority community is influenced by other factors, such as increasing immigration.
The data strongly correlates proportional size of the minority language community, proximity to Quebec, and the quality of minority language education. The provinces where francophones are less than five per cent of provincial population experience low enrolment rates in minority language programs. The French minority also has difficulty transmitting the French language as a mother tongue in these provinces. Less than half the minority community in these areas pass on the French language to the next generation.(81)
Minority language education alone cannot reverse these demographic factors. In all provinces outside Quebec (excepting Ontario and New Brunswick), demographic factors such as transmission of language from one generation to the next, retention of mother tongue throughout the individual's lifetime, marriage outside one's community, birth rates and migration all erode the language minority by assimilation.
The francophone minorities in New Brunswick and Ontario have sufficient numbers, both absolutely and in proportion to total population, to sustain their communities against large scale impact by these forces.(82) Combined, Ontario and New Brunswick account for 90 per cent of French mother tongue students who receive minority language education: 99.4 per cent of francophone children in New Brunswick are in minority language programs; a population exceeding 100% of Ontario's francophone minority are enrolled in minority language programs.(83) Ontario's French schools have an attractive power which extends into the English community.
In Ontario and New Brunswick, where the French language minorities are numerous and concentrated territorially, high enrolment rates correlate with high transmission of mother tongue rates. In New Brunswick, 94 per cent of francophones pass French on to their children as the mother tongue. Further, these families use French as the primary language at home. Their children will continue to speak French throughout their lives.(84) Minority language enrolment has fluctuated somewhat since 1970-71 but has remained fairly consistent since the 1980's.(85) The position of the francophone community in New Brunswick is stable and secure. It has resisted assimilation, and in fact has grown in both numbers and in proportion to total provincial population since 1951.(86)
In Ontario, 72 per cent of francophones use French as their home language and continue to speak French throughout their lives. The franco-Ontarian community has declined proportionally to the provincial population, but has increased in actual numbers since 1951.(87) Minority language enrolment decreased slightly in the period of 1971-1985 but has increased steadily since.(88) The francophone community is large enough in absolute numbers, and sufficiently concentrated territorially, to maintain itself against assimilative forces.
Despite varying histories, francophone communities in the remaining provinces and territories all share these important characteristics: francophones adopt English as the primary language spoken at home, marry outside the francophone community and fail to pass French on to their children as the mother tongue. The assimilation of francophones in these provinces and territories is further exacerbated by unfavourable economic conditions which force many francophones to leave their communities and find work in other regions of the country, usually outside of French communities.
Nova Scotia, Prince Edward Island and Manitoba are examples of provinces where francophones are small in number, but concentrated territorially at over five per cent in certain regions of the province.(89) In these provinces, language transmission is weak across the generations; few francophone pass the French language on to their children.(90) It appears that language transmission requires both sufficient numbers and territorial concentration.
Minority language education appears to play a secondary role in reinforcing the efforts of francophone families to retain their language. Children who speak French at home enroll in the minority language programs. Children who do not speak French at home avoid the programs. Overall, minority language enrolments are decreasing steadily in all three provinces.(91)
What do these facts reveal about our basic inquiry in these provinces? Minority language programs do not check the forces of assimilation in these provinces. At best, the programs provide a temporary haven for those francophones families who have not yet been absorbed into the majority English community.
Minority language communities account for less than five per cent of the total of regional populations in each of the remaining provinces and territories.(92) Minority language enrolment has grown steadily since the mid-1980's in all of these provinces and territories, with the exception of Saskatchewan. However, minority language education services less than half of the children who speak French as their mother tongue and less than ten per cent of the children whose parents are entitled to enroll them in minority language programs under section 23(1)(a).(93)
Minority language enrolment is likely to increase across Canada in the future. In the regions removed from the bilingual corridor the exclusive clientele of the programs are children who already speak French as their mother tongue. The data indicate that the assimilation of francophone children begins long before school. If the children do not speak French at home, they will lose the French language. The assimilative forces at work impact stronger than the minority language programs. Outside the bilingual corridor minority language programs cannot resist the attraction of English. Within the bilingual corridor, particularly in Ontario where the concentration of francophones is the highest, minority language programs have additional potential. In this unique, concentrated situation minority language programs attract children whose parents are unlikely to transmit the language to them. The additional force of the minority language programs may allow these children to retain the French language.
Conclusion
Section 23 is unlikely to change Canada's linguistic demography or to resuscitate Canada's decaying linguistic communities. Canada's language complexion will continue to be coloured by the powerful forces of North American mass culture, economy and society. Section 23 may allow the francophone linguistic communities in Ontario and New Brunswick to grow very slightly, and thus make a difference to their survival, at least for the time being. In Canada's remaining provinces the francophone minorities have insufficient critical mass to endure. The effect of section 23 in these circumstances, at best, is likely to be palliative. Section 23 is likely to be palliative because, while it may make minorities feel better, it is unlikely to cure them of the forces which are exterminating them. Section 23 will allow the communities to control one of their essential institutions, and to transmit their culture thereby. Nevertheless, the language of these communities will remain exposed; small islands of French awash in a sea of English will be ground down relentlessly into the larger English ocean by powerful assimilative forces.
As a "palliative provision," the effects of section 23 are likely to be highly charged symbolically. Section 23 is likely to empower linguistic minorities in a very limited sense. Minorities will certainly feel better for winning high visibility school cases, and no doubt winning will be a welcome change from their pre-Charter past. Minorities will also have the perception, to some extent justified, that they control the education of their children. This state of affairs, perceived and real, will probably improve ethnic and linguistic relations in Canada. Minorities will feel less aggrieved. Linguistic conflict may diminish in intensity and frequency. National stability may be fortified by the removal of a venomous irritant which formerly gave rise to endless quarrelling without resolution.
This is not to say that proclamation of section 23 should be considered futile. The provision of minority language educational rights operates on a principle deducible from the Canadian experience: generous treatment of linguistic minorities alleviates ethnic tensions. In turn, greater ethnic harmony promotes national stability and contributes to the viability of the Canadian federation. The fact that section 23 is "merely" palliative ought not detract from its valuable symbolic import. Section 23 is an important political concession made for an important political reason. It is an expression of goodwill and understanding for the plight of official language minorities in order, as a generous measure, to invite the loyalty of all French speaking Canadians to the Canadian enterprise.
1. Andre Siegfried, The Race Question in Canada (1906), repr., The Carleton Library, (Toronto: McClelland & Stewart, 1966) at 59. Siegfried's 1906 study is a wonderful treasure, a sparkling gem.
2. Joseph Pope, Confederation: Being, a Series of Hitherto Unpublished Documents Bearing on the British North America Act, (Toronto: 1895) at 46-7.
3. An Act Respecting the Department of Education, S.M. 1890, c. 37; An Act Respecting Public Schools, S.M. 1890, c. 38.
4. [1895] A.C. 202.
5. (1978), 83 D.L.R. (3d) 645 at 662 (C.S.).
6. Section 93(1) of the Constitution Act, 1867.
7. City of Winnipeg v. Barrett, [ 1892 ] A.C. 445 (S.M. 1890, caps. 37-8 held constitutionally valid to deny public tax support to Catholic schools).
8. [ 1895 ] A.C. 202 at 215.
9. [ 1917 ] A.C. 62 at 69, 74.
10. Tiny R.C. Sep. Sch. Trustees v. The King, [1928] A.C. 36 at 386.
11. Id., at 388.
12. Official Language Act, S.Q. 1974, c. 6.
13. P.S.G.B.M. v. Minister of Education, supra, at 672.
14. "The Court cannot help but note that this is a great waste of time": Ibid., at 669.
15. W.G. Flemming, The Administrative Structure (Toronto: U of T Press, 1971) at 163-4. It has never been easy to discern the reason why. The major difficulty appeared to be with the ability of Separate Schools to access the corporate tax base. S. 126 of the Education Act, 1974, R.S.O. 1980, c. 129 limits the power of corporations to direct their assessments to separate schools to a maximum not exceeding a portion equal to the percentage of Roman Catholic shareholders in the corporation. In Windsor Educ. Bd. v. Ford Motor Co., [1941] A.C. 453 a corporation desiring to direct a portion of its assessment for separate school purposes was held to have an onus to prove affirmatively that the portion directed to separate schools does not exceed the maximum portion allowable under the s. 126 formula. However "it is quite impossible for many companies to ascertain the religious persuasion of many of their shareholders": Re Calgary Bd. of Educ. and A.G. Alberta (1981), 122 D.L.R. (3d) 249 (Alta. C.A.). Shares changes hands frequently; shareholders are scattered all over the world; a significant portion of corporate shares are in the hands of other corporations and trusts. I conclude that s. 126 created an onus impossible to satisfy and thereby deprived the separate schools of equal or fair funding.
16. An Act to Amend the Education Act, S.O. 1986, c. 21.
17. Official Language Act, S.Q. 1974, c. 6, s. 40.
18. Charter of the French Language, S.Q. 1977, c. 5, s. 73(a).
19. "The privileges of the Anglo-Quebecois minority are the fruit of historical and accidental forces, but they try to mask this incontestable fact and look for ways to perpetuate these privileges...:" per Camille Laurin, Quebec's Minister for Cultural Development and as such responsible for Bill 101: Murray and Murray, De Bourassa a Levesque (Montreal: Editions Quinze, 1978) at 241.
20. M. Levine, The Reconquest of Montreal (Temple Univ. Press, 1990) at 139.
21. As quoted by McWhinney, Quebec and the Constitution, (Toronto: U. of T. Press, 1979) at 72.
22. Institute of Intergovernmental Relations, The Response to Quebec: The Other Provinces and the Constitutional Debate, (Kingston: I.I.R., 1980) at 52.
23. Ibid., at 53.
24. The Prime Minister and Minister of Justice are not strictly accurate. A major change is in the responsibility for implementation. Under both the St. Andrews and Montreal statements implementation "would be as defined by each province". This implies exclusive legislative responsibility. Entrenchment partially dilutes legislative control, as the provincial legislatures will have to labour under national constitutional standards articulated by the courts.
25. Constitution Act, 1982, s. 59. Under s. 59(2) assent may come from the government or legislative assembly of Quebec. By Bill 62, 32 Leg., 3d sess. (1981, Que.), s. 3 the Assemblee National enacted that the Government of Quebec cannot assent until first authorized by the Assemblee Nationale. This is manifestly unconstitutional. When the Constitution grants a power to the Government, the Legislature may not take it away.
26. Levine, The Reconquest of Montreal, supra note 20 at 56.
27. "If recent migration trends continue, and if immigrants continue to opt predominantly for the English language, the French speaking community of Quebec is bound to see its majority seriously reduced, particularly in Montreal. This would mean losing their only real power: that of making laws and electing governments:" Jacques Henripin, "Quebec and the Demographic Dilemma of French Canada" (1969) repr. in D. Thompson (ed.), Quebec Society and Politics: Views from the Inside (Toronto: McClelland & Stewart, 1973) at 169.
28. Ministere de l'Education at Ministere des Affaires culturelle, Rapport du Comite interministerielle sur l'enseignement des langues aux Neo-Canadiens, 27 jan. 1967 [Gauthier Report], p. 44.
29. Le Devoir, 2 Avril, 1968.
30. Le Devoir, 28 Oct., 1968.
31. Rene Levesque, Attendez que je me rapelle (Montreal: Editions Quebec/Amerique, 1986) at 306. condemned the MIS for its "rhetoric of hatred" and "intolerance." Claude Ryan referred to the St. Leonard activists as "fanatics:" Le Devoir, 4 Sept., 1968.
32. See generally, Levine, The Reconquest of Montreal, supra note 20 at 78.
33. Loi pour promovoir la langue francais au Quebec [Bill 63], S.Q. 1969, c. 9. This was a remanufactured version of Loi modifiant la Loi du ministere de l'education, la Loi du Conseil supreieur de l'education et la Loi de l'instruction publique [Bill 85], which had been introduced the previous year (Dec. 9, 1968). Bill 85 contained some minor measures to strengthen French as a priority language, but its centrepiece was freedom of choice in education. Bill 85 received a rough ride through the Education Committee of L'Assemblee Nationale, split the Government's caucus and failed to become law.
34. Le Devoir, 19 Sept, 1968.
35. Official Language Act [Bill 22], S.Q. 1974, c. 6, s. 40.
36. Official Languages Act [Bill 22], ss. 41-3.
37. Charter of the French Language [Bill 101], S.Q. 1977, c. 5, secs. 72-73.
38. A.G. Quebec v. P.S.B.G.M, [1984] 2 S.C.R. 66.
39. Constitution Act, 1982, s. 52(1).
40. Constitution Act, 1982, s. 59.
41. Hunter v. Southam, [1984] 2 S.C.R. 145 at 155.
42. Mahe v. A.G. Alberta, [1990] 1 S.C.R. 343 at 362.
43. In 1990, the Association multiculturelle francophone de l'Ontario attempted to launch a court challenge with the aid of the Court Challenges program, alleging discrimination against multicultural francophones in hiring and admission to French speaking schools.
44. Mahe v. A.G. Alberta, supra at 369.
45. [1986] 1 S.C.R. 549.
46. Levine, The Reconquest of Montreal, supra note 20 at 142.
47. Levine, The Reconquest of Montreal, supra note 20 at 144, relying on observations made by Arnopolous and Cliff, The English Fact in Quebec, (Montreal: McGill-Queen's U.P. 1980) at 191.
48. [1990] 1 S.C.R. 342.
49. [1993] 1 S.C.R. 839.
50. S.A.N.B. v. Assn. of Parents, [1986] 1 S.C.R. 549 at 578.
51. In Reference re Education Act of Ontario and Minority Language Education Rights (1984), 10 D.L.R. (4th) 491 the Ontario Court of Appeal stated: "Section 23 of the Charter particularly must be given such a liberal interpretation for it enacts new rights and in effect creates a new code which establishes minority langauge education rights for the nation." In Reference re Minority Language Educational Rights (1988), 49 D.L.R. (4th) 499 at 511 the Prince Edward Island Court of Appeal stated: "There can be little question that s. 23 was a political compromise and that being so its interpretation should not be too wide."
52. Mahe v. A.G. Alberta, supra at 365.
53. "It is important to keep in mind that s. 23 constitutes a minimum and not a maximum in the area of management and control of French-language education:" Manitoba Public Schools Act Reference, [1993] 1 S.C.R. 839 at 864.
54. Mahe v. A.G. Alberta, supra at 350.
55. A.- G. Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 67.
56. Mahe v. A.G. Alberta, supra at 369.
57. Reference re Public Schools Act (Manitoba), [1993] 1 S.C.R. 858.
58. Mahe v. A.G. Alberta, supra at 375-376.
59. Finn-Elliott Report; School Act, R.S.N.B. 1973, c. S-5, as amended, ss. 3.1 - 3.3, 18.1; Sondage sur les Besoins des Commissaires d'Ecoles de Langue Francaise du Canada (1981), at 35.
60. Report of the Official Language Commissioner, 1978, (Ottawa: Ministry of Supply and Services) at 35.
61. Reports of the Official Language Commissioner, 1979 (Ottawa: Ministry of Supply and Services) at 32.
62. In Reference Re Ontario Education Act (1984), 10 D.L.R. (4th) 491 the Ontario Court of Appeal stated at 522:
[Section] 23 transcends the geographical boundaries of school boards. One example of inconsistency can be seen from considering a situation where parents who qualify for minority language instruction for their children under s.23 of the Charter live relatively close to each other but within two distinct school board districts designated by the Education Act. Those parents could be denied the rights guaranteed them by the Charter as a result of their residing in different school board districts. Once again, minority language education rights should not be left to the unfettered and undirected discretion of local school boards no matter how competent and well-meaning they may be.
This point was reiterated by the Supreme Court in the Reference Re Manitoba Public Schools Act, supra at 862-863.
63. Mahe v. A.G. Alberta, supra at 385.
64. Mahe v. A.G. Alberta, supra at 378-9 foresaw that higher expenditures may be required for start-up purposes.
65. Marchand v. Simcoe County Bd. of Educ. (1986) 55 O.R. (2d) 638.
66. Mahe v. A.G. Alberta, supra at 385: "...the fact that s. 23 is a remedial section is significant, indicating that the section does not merely aim at guaranteeing the status quo."
67. Ibid., at 392.
68. 344 F. Supp. 373 (1972).
69. 418 U.S. 717, 746 (1974).
70. Projected figures form Statistics Canada. Commissioner of Official Languages, Annual Report, 1992 (Ottawa: Minister of Supply and Services Canada, 1993) at 134-36.
71. Minority and Second Language Education, Elementary and Secondary Levels, 1991-92, Final (Ottawa: Statistics Canada, 1993) at 5.
72. In an extensive study conducted at the University of Ottawa, graduates of immersion programs indicated that they believed that they were well prepared to continue their studies in French at a post-secondary level. The performance of immersion students French reading and writing skills were closely matched that of the control Francophone group. However, the verbal skills of immersion students fell far behind those of their Francophone counterparts. None but the very best immersion students could even come close to passing for a native francophone. Wesche, M. "French Immersion Graduates at University and Beyond: What Difference has it Made?" in Alatis, J.M. (ed.) The Georgetown Round Table on Languages and Linguistics (Washington, D.C. Georgetown U.P., 1992).
73. Ibid.
74. Enrolment of children in kindergarten through grade three had steadily increased until 1989-90. Since 1990-91, the enrolment has dropped below the 1988-89 level. In virtually every province except Nova Scotia, Prince Edward Island and New Brunswick, the number of students enroled in immersion at the secondary level is less than half of the enrolment in the elementary grades: Minority and Second Language Education, Elementary and Secondary Levels, supra note 69 at 18-19. In a survey conducted by the Canadian Education Association, school boards experiencing a decline in enrolment at the secondary level cited the creation of programs for gifted students and improved core French instruction among the suspected causes for this decline: Commissioner of Official Languages, Annual Report, 1992, supra note 68 at 125-26.
75. Rates of bilingualism across the country increased noticeably in the period between 1981 and 1986. In 1981 8.9 per cent of Anglophones in New Brunswick were bilingual. By 1986 11.9 per cent of all anglophones were bilingual. In Ontario 6.6 per cent of anglophones were bilingual. By 1986 7.8 per cent were bilingual. Across the other provinces (excluding Quebec) the percentage of bilingual anglophones increased from 3.8 per cent in 1981 to 4.5 per cent. Robert Boudreau. Census 1986, Canada, A Linguistic Profile, (Ottawa, Minister of Supply and Services, 1989) at 32-34.
76. The total English system is slightly in excess of 111,000 pupils. Approximately 12,000 English mother tongue students were educated in the majority French system by choice or because they did not qualify to receive and English education: Angeline Martel, Official Language Minority Right in Canada: From Instruction to Management (Ottawa: Office of the Commissioner of Official Languages, 1991) at 138.
77. To 99,551: Minority and Second Language Education, Elementary and secondary Levels, 1991-92, Last Edition, supra note 69 at 19.
78. Angeline Martel, supra note 75 at 141. The total enrolment in Quebec was stable, declining only 0.2 per cent in the same period. The decline in minority enrolment is observed as a combined figure of publicly funded school boards and private schools. Between 1986-87 and 1988-89, minority enrolment dropped by 5.4 per cent and 21 minority language schools closed.
79. Brief by Alliance Quebec on Bills 106 and 107 presented to the commission de l'éducation, monograph, 1988, as quoted in Angeline Martel, ibid. at 142.
80. The Martel study looked at four basic categories of data that give a strong indication as to 1) the size of the french language community; 2) whether the educational demands of this community are being met; 3) the potential demand for minority language education under the application of s. 23(1)(a) of the Charter and 4) the number of students who are eligible to receive minority language instruction but do not speak the minority language as their mother tongue. The second and fourth categories give a indication of the current rate of assimilation of the community and the potential assimilation rate. Students who do not speak French as their mother tongue are more likely to be educated in the English language system and their children will follow. Students who do speak French as their mother tongue but do not receive a French language education are in danger of being assimilated by the majority community. Ibid. at 67-76.
81. The following table was taken from data in provincial and territorial profiles in Dallaire, L. and R. Lachapelle, Demolinguistic Profiles of Minority Official Language Communities, 1986 Census, (Ottawa: Department of the Secretary of State). Language continuity indicates the net effect of language transfers for the Francophone community. A number less than 100 per cent indicates that Francophones are being assimilated into the majority group and adopting the majority language. The high language continuity rate and use for French as a home language in Newfoundland may be explained by the very small Francophone population, see Dallaire, L and R. Lachapelle, Demolinguistic Profile, Newfoundland, (Ottawa, Department of the Secretary of State) at 4.
provincial regional home language
proportion proportion language continuity
B.C. 2% n/a 40% 39%
Alberta 2% 3.7% 46% 46%
Sask. 2% 4% 40% 40%
Manitoba 5% 7.5% 59% 59%
Ontario 5% 23% 72% 72%
N.B. 33% 63% 94% 94%
N.S. 4% 16% 71% 71%
P.E.I. 4% 26% 62% 60%
Nfld. 0.5% n/a 82% 82%
N.W.T. 3% n/a 44% 45%
Yukon 3% n/a 53% 53%
82. Just over a half million francophones live in Ontario, making it the largest francophone minority population. Almost half of the francophones outside Quebec live in Ontario and are concentrated primarily in the eastern and northeastern regions of the province. As a proportion of the total population, francophones make up 5 per cent of the provincial population. However, the regional concentration in eastern and northeastern Ontario is much higher at 23 per cent: Dallaire, L. and R. Lachapelle, Demolinguistic Profile of Ontario, 1986 Census (Ottawa: Department of the Secretary of State) at 26.
New Brunswick has the next largest francophone population, with just less than a quarter million people. Francophones make up 35 per cent of the provincial population and have a regional concentration of 63 per cent: Dallaire L. and R. Lachapelle, Demolinguistic Profile of New Brunswick, 1986 Census (Ottawa: Department of the Secretary of State) at 29.
83. In New Brunswick, 46,000 children are enrolled in minority language programs, representing 80 percent of the children whose parent(s) are entitled to enroll their children in a minority language program under s. 23(1)(a). In Ontario, 77,000 children receive minority langauge instruction, while there are only 70,000 children in the French mother tongue minority. These students represent 57.2 per cent of the children whose parent(s) are entitled to enroll them in a minority language program. It is interesting to note that only 50.2 per cent of the eligible children under s. 23(1)(a) actually speak French as a mother tongue. The numbers in Ontario strongly suggest that children whose Francophone parent or parents fail to pass French as a mother tongue to them at home are acquiring their knowledge of French in minority language program: Martel, Official Language Minority Rights in Canada: From Instruction to Management, supra note 75 at 68.
84. Dallaire, L. and R. Lachapelle, Demolinguistic Profile of new Brunswick, 1986 Census, supra note 81 at 29.
85. Minority and Second Langauge Education, Elementary and Secondary Levels, 1991-92, Last Edition, supra note 69 at 28-31.
86. Dallaire, L. and R. Lachapelle, Demolinguistic Profile of New Brunswick, 1986 Census, supra note 81 at 29.
87. Dallaire, L. and R. Lachapelle, Demolinguistic Profile of Ontario, supra note 81 at 26.
88. In 1970-71 over 115,000 students ware enrolled in minority language programs. This number decreased steadily until 1984-85 when enrolment reached a low of 90,854. It should be noted that overall enrolment in Ontario's schools also declined in this period. Enrolment has increased gradually since and in 1991-92, 96,833 students were enrolled in Ontario's minority language programs: Minority and Second Language Education, Elementary and Secondary Levels, 1991-92, Last Edition, supra note 69 at 28-31.
89. In Nova Scotia, Francophones account for 4 per cent of the population but have a regional concentration of 16 per cent: Dallair, L. and R. Lachapelle, Demolinguistic Profile of Nova Scotia, 1986 Census (Ottawa: Department of the Secretary of State) at 26. In Prince Edward Island, Francophones again represent 4 per cent of the total population but have a regional concentration of 26 per cent: Dallaire, L. and R. Lachapelle, Demolinguistic Profile of Prince Edward Island, 1986 Census, (Ottawa: Department of the Secretary of State) at 29. Franco-Manitobans represent 5 per cent of the total population and have a regional concentration of 7.5 per cent: Dallaire, L. and R. Lachapelle, Demolinguistic Profile of Manitoba, 1986 Census, (Ottawa: Department of the Secretary of State) at 27.
90. In Nova Scotia, 96.4 per cent of the children who speak French as their mother tongue receive their education in a minority language program. But, these children are only 34.8 per cent to the children who have a parent who is entitled to have their children receive minority language education. Only 36.1 per cent of these eligible children speak French as a mother tongue.
In Prince Edward Island, 70.4 per cent of the children who speak French as a mother tongue are in minority language programs. They represent 21.8 per cent of the children whose parent(s) are entitled to enrol their children in minority language programs. Further, only 36.1 per cent of the eligible children speak French as a mother tongue.
Similar numbers are seen in Manitoba: 78 per cent of the children who speak French as a mother tongue are in minority language programs. They represent 37.6 per cent of the children whose parents are entitled to educate their children in a minority language program. Further, only 37.6 per cent of the children eligible to receive minority language education speak French as a mother tongue: Martel, Official Language Rights in Canada: From Instruction to Management, supra note 75 at 68.
91. This trend is at least twenty five years old. See generally, Minority and Second Language Education, Elementary and Secondary Levels, 1991-92, Last Edition, supra note 69 at 28-31.
92. Francophones in British Columbia, Alberta and Saskatchewan make up a mere 2 per cent of the provincial populations. In Alberta, Francophones have a regional representation of 3.7 per cent and in Saskatchewan, 4 per cent. In British Columbia and Saskatchewan, 40 per cent of Francophones use French as the home language and in Alberta 46 per cent: Dallaire, L. and R. Lachapelle, Demolinguistic Profile of British Columbia, 1986 Census, (Ottawa: Department of the Secretary of State) at 27; Demolinguistic Profile of Alberta, 1986 Census, (Ottawa: Department of the Secretary of State) at 28; Demolinguistic Profile of Saskatchewan, 1986 Census, (Department of the Secretary of State) at 29.
Francophones in the territories make up 3 per cent of the territorial populations. In Yukon, 53 per cent of Francophones use French as the home language and in the N.W.T., 44 per cent: Dallaire, L. and R. Lachapelle, Demolinguistic Profile of Yukon, 1986 Census (Ottawa: Department of Secretary of State) at 11; Demolinguistic Profile of the Northwest Territories, 1986 Census (Ottawa: Department of the Secretary of State) at 12.
In Newfoundland, the Francophone community accounts for only 0.5 per cent of the province's population. However, 82 per cent of francophones use French as their home language. The francophone community is extremely small and has a low birth rate, a high rate of marriage outside the community and a high rate of interprovincial migration due to the unfavourable economy in Newfoundland. Furthermore, there are no French institutions and Francophones surveyed revealed that they infrequently had the opportunity to speak French in their day-to-day activities. Because of the very small sample size, any conclusions based on these statistics must be made carefully. Dallaire, L. and R. Lachapelle, Demolinguistic Profile of Newfoundland, 1986 Census, (Ottawa: Department of the Secretary of State) at 28.
93. In British Columbia, 58.6 per cent of Francophone children were enrolled in minority language programs. These children represented 10.3 per cent of the children whose parents are entitled to educate their children in minority language programs. Further, only 17.6 per cent of the eligible children speak French as a mother tongue.
In Alberta, 29.6 per cent of Francophone children receive their education in minority language programs. However, these children represent only 7.3 per cent of the children whose parents are entitled to enroll their children in minority language programs. Only 18.8 per cent of the eligible children speak French as a mother tongue. Martel, Official Language Minority Rights in Canada: From Instruction to Management, supra note 75 at 68.
In Newfoundland, Yukon and the Northwest Territories, there were no more than 300 children enrolled in minority language programs in 1991-92. These numbers are extremely small and these children account for a negligible portion of the children enrolled in the school system. It is difficult to draw any conclusions concerning the growth in these enrolment data. Minority and Second Language Education, Elementary and Secondary Levels, 1991-92, Last Edition, supra note 69 at 31.