Legal Framework

Introduction to Language of Instruction

Section 23 of the Canadian Charter has proven to be the one of the most important of all rights added in 1982. In effect, it confers the right to have their children taught in the language of the minority, for certain categories of persons and under certain conditions. It has led to a major restructuring of the official minority language school network in Canada. Each province and territory had to modify its legislation to make space for the minority teaching institutions and their management structures.

The present section deals with constitutional law and provincial law. Education being a prerogative of the provinces, there is no applicable federal legislation.

Constitutional Law

The fruit of intense political debates that began with the report of the Royal Commission on Bilingualism and Biculturalism. Section 23 is the one that has generated the most abundant jurisprudence for the theory of linguistic rights.

Essentially, the political debate preceding the adoption of section 23 dealt with two issues: The right to freely choose the language of their child’s education, or the restriction of this choice to members of an undefined linguistic minority. The debate comes from the fact that in Québec, the only majority Francophone province, a majority of immigrants, as well as a large proportion of Francophone, choose English as the language of instruction for their children and that the Québécois government seeks to put an end to this practice. Meanwhile, outside of Québec, the Acadian and Francophone minorities, who were deprived of their right to schools and their management at the beginning of the 20^th century, and saw their children confined to bilingual programs in schools where English was the language in use, called for the return of linguistically homogeneous schools where the instruction takes place in the minority language.

Section 23 is, therefore, the fruit of a decade and a half of local and national debates around the question of the language of instruction. In Mahé, it has been described as the cornerstone of Canada’s commitment to bilingualism and biculturalism. Its goal, according to the judgment, is the maintenance and development of the official language communities through education, in the provinces and territories where they are a minority. These linguistic communities must be equal partners with the majority. Section 23 is also “restorative,” it seeks to modify the educational status quo.

The present section takes on the following questions: The definition of right-holders; the right to instruction and to institutions; the rights to their management; and the conditions of size and cost.

The expression “right-holder”, which is not a legal term but has been introduced into common use, denoted here the persons who, in the sense of section 23, have a constitutional right to have their children instructed at the primary and secondary level in their official language.

The three categories of right-holders have been modeled on the categories dictated by section 73 of the Charter of the French Language in 1977, as recognized by the Supreme Court in Quebec Association of Protestant School Boards.

Two series of conditions apply to right-holders: Common Conditions and Linguistic Conditions

Being a parent. According to standards, only a single parent is a right-holder, both parents need not meet the conditions. In Association des Parents Ayant-Droit de Yellowknife, the Court of Appeal deemed that neither grandparents nor persons exercising parental authority are right-holders in the sense found in section 23. In Perron v. Perron, the Court of Appeal of Ontario ruled that in the case of divorce between a right-holder parent, to whom the Court accords visiting rights, and a non-right-holder parent to whom the Court has granted custody of a child, the right-holder parent retains the constitutional right. If there is a misunderstanding between the two concerning the choice of the language of instruction, the tribunal must keep in mind the interests of the child, but also the constitutional rights of the right-holder parent, which is a factor to be considered in the evaluation of the best interests of the child.

Being a Canadian citizen. The rights in section 23 do not extend to immigrants. The law can, however, broaden its criteria. Citizenship must be acquired by the time the parent applies for admission to his child’s school.

Residing in a province where the language of instruction requested is that of the linguistic minority, for the purposes of paragraph 23(1). In practice, this means English in Québec and French outside of Québec, and these two languages in Nunavut where the majority language is Inuit. The determination of the status of a minority language depends on the province and not the region, even if in certain provinces (New Brunswick, Ontario) English can be a regional minority language. As the notion of residence is not defined and stems from the provinces, the provincial law applies. Certain particular problems present themselves for military and embassy personnel posted abroad, for aboriginals residing in reserves and for very mobile individuals.

Having a child that has received or receives instruction in French or in English in Canada. Paragraph 23(2) does not specify any province of residence.

Asking for instruction in French or in English. Section 23 does not protect other languages of instruction. Despite the at times important regional differences, particularly in French, section 23 does not define the French or English language. No judicial decision has explored this issue. We can presume that the decision to use regional language variations will depend on provincial politics.

Three series of linguistic conditions must be met to become a right-holder. The criteria are optional and noncumulative.

Mother Tongue as Minority Official Language. According to paragraph 23(1)(a), the parent must have as “first language learned and still understood” the language of the Francophone or anglophone minority in one’s province of residence. This notion is not defined in the Charter. The data from Statistics Canada on mother tongue, collected during censuses, serve as the reference. According to section 59 of the Constitution Act of 1982, this condition does not apply to Québec and shall not apply unless the national assembly or the government of Québec give their approval.

Canadian Official Language Instruction. According to paragraph 23(1)(b), the parent must have received his primary instruction in French or in English in Canada. In Quebec Association of Protestant School Boards, the Supreme Court of Canada deemed that this clause, called “Clause-Canada”, must have precedence over the older definition contained in the Charter of the French Language of Québec which limited access to English schools in that province to children who have one parent who studied in English in Québec (Clause-Québec).

Condition of Quantity. According to paragraph 23(2), if the child “has received or received his instruction at the primary or secondary level” in French or in English in Canada, all the children of that right-holder parent may study in that language at the primary or secondary level. In Solski, the Supreme Court of Canada deemed that a condition that “the greater part” of the child’s instruction should have taken place in English, imposed in the Charter of the French Language of Québec, was not unconstitutional. Nevertheless, the method for evaluating that which represents “the greater part” can not make use of a purely mathematical criterion of hours spent receiving instruction in either language, but must instead evaluate each case on its merit and verify the actual path of the child’s education as well as the subjective ties of the parent with the anglophone community. In N’Guyen, the Supreme Court decided that the form of instruction received in English in Canada (outside Québec or in Québec, in a public or private school), mattered little and all instruction received in English in Canada must be considered in the application of paragraph 23(2). A Quebec law that excluded this evaluation of the time spent by the child in a private school not subsidized by the State was accordingly annulled. Nevertheless, the Court adds that a parent can not use deception to get around the “greater part” condition imposed by the Charter of the French Language, by, for example, registering his child in a private school for a day to only later requesting admission in a public school. According to the Court, paragraph 23(2) does not signal the return to freedom of choice in the language of instruction.

It is worth highlighting that at no point in time is the mother tongue or the language spoken by the child involved. Only the parent’s language counts or the language in which the child is taught. Consequently, children have the right to attend a minority language school if they do not speak the language of instruction, which requires resources in place for linguistic adaptation.

The verification of the linguistic criteria are generally carried out by way of a voluntary declaration from the parent.

If a parent does not fall under one of the common or linguistic categories, he or she is not a right-holder. In such a case, according to the Supreme Court of Canada in Commission Scolaire Francophone du Yukon, the provincial or territorial law can delegate the right to enroll the children of non-right-holders to minority-language school boards, but it is not obligated to do so. The provincial legislator can also regulate the status of such persons: Commission Scolaire Francophone des Territoires-du-Nord-Ouest (Court of Appeal of NWT); Conseil Scolaire Francophone des Territoires-du-Nord-Ouest (Court of Appeal of NWT); Conseil Scolaire Francophone de Colombie-Britannique (2016) (Supreme Court of British Columbia; being appealed).

Instruction, Institutions, and Equal Quality

The form of instruction is not specified in section 23. Certainly, the form commonly used in schools where students are grouped by level is certainly included. But questions can remain regarding new forms of instruction: the use of technological tools and online courses; specialized education; professional or technical education; specialized sport, music, and arts programs; international programs; adult literacy and literacy; the education for the deaf and mute; programs for drop-outs; and many others. The legal canon looks favourably on the inclusion of these programs in the concept of instruction as found in section 23.

Because section 23 gives access to minority Francophone schools to children who do not speak French prior to their enrollment, francization programs are included in section 23.

Instruction covers primary and secondary levels, which are the levels used everywhere in Canada (in the provinces and territories of majority anglophone, we speak of primary, middle, and secondary levels, but for the purposes of section 23 the middle and secondary levels are considered as one). They are differentiated from pre-school (nursery, daycare, kindergarten) and post-secondary (college or university). Despite efforts of the doctrine to integrate into the protection of section 23 preschool and post-secondary levels, only the primary and secondary levels are covered. After a series of tribunal rulings Canada's west coast, section 23 does not encompass a right to a preschool, nor a daycare in schools: Commission Scolaire Francophone des Territoires-du-Nord-Ouest; Association des Parents Francophones de Yellowknife (Court of Appeal of NWT); Supreme Court of Canada; Conseil Scolaire Francophone de Colombie-Britannique, 2016 (Supreme Court of British Columbia). No legal decision has explicitly targeted post-secondary studies, but the general interpretation of section 23 does not go in that direction.

Where the numbers justify, the instruction must take place in so-called “homogeneous” schools, or schools where all the teaching is carried out in the language of the minority, excepting of course the teaching of the second language: Reference re Public Schools Act (Manitoba) SCC.

Institutions must also be located within the community; the government must not force the parents to choose between a minority school that is located very far from their place of residence and a majority-language school in their own city: Arsenault-Cameron v. Prince Edward Island (SCC).

A tribunal has judged that transportation to school is part of the notion of “instruction” or “institution”: Conseil des Ecoles Publiques de l’est Ontarien (Superior Court of Justice of Ontario); another court has included school transport as a guaranteed right and has offered damages for provincial under-funding of school transportation for Francophones: Conseil Scolaire Francophone de Colombie-Britannique, 2016 (Supreme Court of British Columbia).

The quality of institutions between the linguistic minority and majority must be comparable: Association des Parents de l’Ecole Rose-des-Vents (SCC); Conseil Scolaire Francophone de Colombie-Britannique 2016 (Supreme Court of British Columbia).

When the numbers are not sufficient to build a language-minority school, the sharing of premises remains a possibility: Zenon Park (Court of the Queen’s Bench of Saskatchewan); School transport is also included: Chubbs (Supreme Court of Newfoundland and Labrador).

The quality of institutions between the linguistic minority and majority must be comparable: Association des Parents de l’Ecole Rose-des-Vents (SCC); Conseil Scolaire Francophone de Colombie-Britannique 2016 (Supreme Court of British Columbia).

When the numbers are not sufficient to build a language-minority school, the sharing of premises remains a possibility: Zenon Park (Court of the Queen’s Bench of Saskatchewan); School transport is also included: Chubbs (Supreme Court of Newfoundland and Labrador).

Management Rights

In Canada, education is regulated by the ministry of the provincial government, as well as a decentralized body called a “school board” or “school council.” Traditionally, school boards take care of the daily administration of the schools within their given area. They are have been previously organized on a religious denominational basis, between catholic and protestant boards, for historical reasons. Section 93 of the Constitution Act of 1867 protects these rights acquired before Confederation. Section 23 of the Charter provides an added layer of complexity.

Historically, because Francophones were predominantly Catholic, they controlled the Catholic school boards by their sheer strength of numbers in many regions in the provinces. Section 93 of the Constitution Act of 1867 protects first the historic rights of Catholic or Protestant minorities in the domain of education.

However, the judicial committee of the Private Board of London, in the judgment Mackell (1917), decided that section 93 would not guarantee religious schooling rights and that the provinces would remain free to impose a language of instruction. The fusion of school boards and demographic tendencies have made it so that Francophones outside of Québec have lost control over the management of their schools. The predominantly Anglophone provinces and territories have enforced English as the language of instruction. In Québec, the government did not intervene, leaving the Protestant and Catholic school systems to continue teaching in French or in English; in practice, the Protestant boards function only in English and a small minority of Catholic boards have Anglophone schools.

Outside Québec, bilingual and immersion programs began to appear in the 1970s, but the provinces did not recognize the right for Francophones to manage their own schools, nor the right to full instruction, at primary and secondary levels, in their language. In Québec, in 1977, the government sought a way to tighten access to instruction in English, but it was in 1977 that it finally replaced the Catholic and Protestant commissions with Francophone and Anglophone ones.

When section 23 of the Charter was adopted in 1982, the minority Francophones outside Québec were vindicated vis-a-vis the return of Francophone school boards in the Anglophone provinces. The provinces agreed that section 23 did not guarantee such structures, but only the instruction and schools. In Mahe, the Supreme Court deemed that taking into consideration the text and goal of section 23, some form of management and control over instruction in the minority language should be put in place. When the numbers are not sufficient to create minority school boards, other measures must be put in place, provided that certain powers belong exclusively to the representatives of the minority.

The Supreme Court in Mahe, deemed that it was necessary to leave the provinces the largest discretion possible in the choice of means used to follow up management rights. Consequently, the shape of these bodies can vary from province to province and even in the same province. We shall see that certain provinces opt for a single school minority council, while others opt for more local structures. In Ontario, there are public and Catholic Francophone councils and public and Catholic Anglophone councils.

The election of school counselors can also take different forms; The important point is that they really represent the right-holders. Even though the case-law has not resolved the issue, it seems that it is not necessary to be a right-holder to become elected and chair under the school councils of the minority, but it is possible to request this also. Even if case-law has not resolved the issue, it is implicit that the working language of the school council is that of the counselors elected.

The powers that the minority school council must exercise are not fixed anymore. In Mahe, the Supreme Court lists five elements that, according to it, must stem from the exclusive control of the representatives of the minority: Recruitment and hiring of teachers and personnel, including implicitly support personnel and professional aides; the recruitment and hiring of executive and management personnel; programming; expenditure of funds destined for instruction in the minority language; and the agreements for purposes of program delivery. The powers to tax do not form part of this list.

In Arsenault-Cameron, the Supreme Court added the choice and placement of schools, if the provincial rules are respected.

In Commission Scolaire Francophone du Yukon, the Supreme Court did not want to add the control of admissions to non-right-holders. In Commission Scolaire Francophone des Territoires-du-Nord-Ouest, the Court of Appeal did not want to add exclusive management of spaces and locations towards integrating nurseries or community services.

Conditions for Enforcement

Paragraph 23(3)(a) stipulates that the right to instruction, primary or secondary in the minority language, financed with public funds, has a place “everywhere in the province where the number of children of citizens that have the right is sufficient to justify such instruction.”

Paragraph 23(3)(b) adds that the right to instruction “encompasses, whenever the number of children justifies it, the right to have them instructed in the institutions of the linguistic minority that are financed with public funds.”

Paragraph 23(3) imposes, therefore, a condition on the implementation of the right to instruction in the minority language, a condition which is analyzed in two phases: a number that justifies the costs.

According to Mahe, the number is not fixed and must not be, a point which makes any rule that limits instruction by virtue of pre-established numbers unconstitutional. For example, 10 students per class, or 100 for a primary school. The Court prefers the approach termed “variable scale”, which requires the verification of the number in relation to external circumstances (e.g. in a city or rural area? Availability or not of transport? Distance? Level of study?) and of the services being requested (a classroom, a lab, a gymnasium, a new school).

The relevant number is that of the right-holder children. The only easily verifiable criterion of a right-holder is the one found in paragraph 23(1)(a). That is to say, the Canadian citizen whose first learned language still understood is that of the language minority. Statistics Canada calculates at the same time the number of persons belonging to the French or English mother tongue and the number of children, of schooling age or not, of these persons. By means of these data and tables, an expert demographer can easily enough determine the potential number of children of parents belonging to the French or English mother tongue that would have the right to claim instruction in the minority language, under paragraph 23(1)(a). But this criterion has to be tempered.

In fact, there exist two other categories of claimants whose number can not be determined before they apply: Those that have received their primary instruction in Canada in a minority language, and those whose child has received or receives instruction in the minority language. But in general, this group is inferior in numbers when compared to the potential number because the language-minority parents often prefer to choose schools close to their residence or schools that offer the best programs according to them, rather than to launch into a linguistic battle for the acquisition of a new school or to subject their children to never ending bus routes in order to receive instruction in their language. This is the reason for which the number of real claims can not serve as a criterion.

Consequently, the relevant number for the purposes of paragraph 23(3) shall be the number of children whose parents may eventually exercise their right: Mahe. This number shall be placed between the potential number and the real number of claims.

Let us remember that the tribunals have decided that non-right-holders already admitted by the school councils in the minority schools, without the legal deliberation on being allowed to do so, are not included in the determination of the justifiable number, in spite of the fact that technically, these are children that “have received or receive” instruction in the minority language in the sense of section 23(2): Commission Scolaire Francophone des Territoires-du-Nord Ouest (Court of Appeal of NWT); Conseil Scolaire Francophone de Colombie-Britannique 2016 (Supreme Court of British Columbia, being appealed).

The non-right-holders do not count in the calculation of the potential number.

Because the primary and secondary instruction unfolds generally over a period of 11-12 years in the life of a child, time becomes a variable in the determination of numbers. Because the absence of instruction in the language of the minority contributes to linguistic assimilation (let us highlight that a decision resolved to the contrary, that the presence of a school of the minority does not hinder the minority’s assimilation: Conseil Scolaire Francophone de Colombie-Britannique 2016 (Supreme Court of British Columbia) and consequently diminishes the numbers that justify the endeavour, speed is a core factor in the making of decisions in education. Yet, these decisions involve long and complex governmental processes, so that a large part of the claims submitted to the lower tribunals or settled before trial deal with the delays surrounding the opening of projects, construction, renovation, or enlargement of schools. This is why a majority of the Supreme Court has accepted that tribunals can order governments to act and supervise the execution of their judgements by convening follow-up meetings: Doucet-Boudreau (SCC). Despite the progress in terms of judicial reparations, no other follow-up order has been given since 2003.

This question has not been the subject of many judicial decisions. In Mahe, the Supreme Court was content to say that greater costs are to be expected for establishing instruction in the minority language, especially in the beginning. In Conseil Scolaire Francophone de Colombie-Britannique 2016, the Supreme Court of the province concluded that formula used for financing Francophone school transportation system penalised the Francophone school board and the province was ordered to compensate the board for this reason.

In Conseil des Ecoles Fransaskoises, the Court of Appeal of the province of Saskatchewan concluded that the provincial government was not responsible but for the financing of students that reside in its territory and consequently, the school board of the minority would have to bill the costs to parents if they wished to admit children from other provinces.

The costs must be set in relation to the numbers and are part of the variable scale.

The costs are tied to the quality of instruction and institutions because the quality is a factor in the choice of schools for the parents. Consequently, governments must be able to spend more to increase the quality of the educational experience: Association des Parents de l’Ecole Rose-des-Vents (SCC).

Because the provinces are constitutionally responsible for education, they have to also finance education in the language of the minority. The federal government uses its spending power to help finance the “additional costs” tied to this right. That engenders a series of problems: First, the federal constitutional authority is contingent on the acceptance of the provinces (section 41(2) of the Official Languages Act of Canada by interpretation). Thereafter, the determination of that which really represents an “additional cost” is a matter of debate. Finally, because the money is given to the provinces, the surrender of accounts by the federal government leaves much to be desired. The Francophone minorities regularly complain that their provincial or territorial government devolves federal funds destined to teaching in the minority language to other projects (see the report “Ou sont passes les milliards et Etude d’impact sur la comformite des dispositions du Protocole d’entent relatif a l’enseignement dans la langue de la minorite et a l’enseignement de la langue second avec l’article 23 de la Charte Canadienne des droits et libertes").

Right Holders: Section 10 of the School Act gives every right-holder that possesses the rights in section 23 the possibility of receiving instruction in French everywhere where these rights apply, and to delegate to the Lieutenant Governor in Council the aim of establishing regulations for the implementation of these rights. The Francophone school councils have the discretionary power to adopt policies of admission for non-right-holders.

Instruction and Institutions: Section 255.3 of the School Act requires the school councils to designate schools as public or “separate” (that is to say Catholic).

Management Structure: Part IX of the School Act allows the minister to create regional authorities whose mandate, according to section 255.5, shall be to manage the French instruction in their territory. There are presently four Francophone school councils that manage 39 schools.

Right Holders:

Paragraph 5(2) of the School Act authorizes students whose parents “have rights under section 23 to receive instruction in a language other than English” (our translation). Paragraph 5(4) allows the Lieutenant Governor in Council to adopt regulations for the purposes of section 23.

Moreover, section 166.24 allows an eligible child to be enrolled in a Francophone school program established by the Francophone education authority. According to paragraph 166.24(3), an immigrant child can also be enrolled. Section 166.241 establishes enrollment priorities.

In Conseil Scolaire Francophone de Colombie-Britannique, the Supreme Court of the province denied the Council the power to enrol other persons than those that are eligible under the law. The case is being appealed.

Instructions and Institutions:

According to section166.25, the Francophone education authority must provide an available program of instruction in French to those enrolled. There are 37 French schools in the province.

In Conseil Scolaire Francophone 2016, the Supreme Court of British Columbia declared that certain schools must be renovated and that new schools be opened, meanwhile, others will have to wait.

Management Structure:

Part 8.1 of the School Act institutes the “Francophone Education Authorities.” Section 166.12 allows the Lieutenant Governor in Council to establish these, to give them a name and a territory. There presently exists but a single entity: The Conseil Scolaire Francophone de la Colombie-Britannique. Section 166.13 allows every eligible person (defined by section 1 as being the parents who possess rights by reason of section 23) and every immigrant to request membership in the Francophone Education Authority, which allows them the right to elect counsellors according to section 166.14.

Section 166.26 through 166.28 govern the hiring of personnel; section 166.29 governs property; articles 166.31 through 166.39 govern finances and sections 166.4 and thereafter deal with diverse provisions.

In Conseil Scolaire Francophone de Colombie-Britannique 2016, the Supreme Court of British Columbia deemed that the provincial education financing formulas, buildings, and transportation will have to be reviewed.

Right Holders: Section 21.1 of the Public Schools Act defines that term as the residents of Manitoba whose first language learned and still understood is French (therefore the definition extends the category of right-holder to include immigrants who possess French as a mother tongue), and also Canadian citizens that reside in Manitoba and have received French instruction at the primary level for at least four years in Canada; or finally also the Canadian citizen, parent of a child that receives teaching in French in Canada, or that has received such instruction during at least four years.

Instructions and Institutions: According to section 21.5 of the Public Schools Act, the Franco-Manitoban School Board offers students a French language program, in the necessary educational institutions, whenever the number of students enrolled justifies it. Section 21.15 requires the admission of a resident student that is a right holder and gives the board the power to admit others “to the extent that it is reasonable to do so.”

Section 21.31 requires the school board to provide at least 75% of their teaching in French. It imposes also a mandatory English course from the 4^th to the 12^th year.

At present, there are 24 French language schools in the province.

Management Structures: Section 21.2 of Part I.1 of the Public Schools Act provides for the creation of the Division Scolaire de Langue Francaise (DSFM). Section 21.4 creates, to direct it, the French language School Board. Its powers have been described above.

Right Holders:

Paragraph 1(i) of the Education Act defined an eligible parent as a parent that possessed the right to have their children instructed in French by virtue of section 23. Section 25 specifies that an eligible parent can enroll their children in the Francophone school system.

By virtue of section 26, the French Language School Commission can admit a child upon request of a parent who is not eligible.

Instruction and Institutions:

Section 23 of the Education Act requires the Education Authority to admit eligible students in schools. Section 27 allows the Lieutenant Governor in Council to adopt regulations concerning the provision of instruction in French and the determination of the demand.

Section 27 allows a student from the Anglophone system to be transferred to a Francophone system under the condition of certain regulations.

The Arsenault-Cameron ruling of the Supreme Court of Canada established that if the school board respects every provincial requirement, it has the power to decide on the opening of new school.

Presently, there are 6 French language schools in the province.

Management Structures:

Section 11(1) of the Education Act continues the existence of the French-language school boards. Section 12 specifies that these issues shall be dealt with by a board of trustees. It delegates the power to adopt regulations concerning their election, mandate, and remuneration to the Lieutenant Governor in Council.

Section 14 of the Education Authority Regulation delegates to the French language school board the power to recruit employees, to provide transport, and to evaluate the performance of the schools.