Language Rights of French and English Minorities in Canada

Management

The management of French-language instruction is mainly handled by members of the language minority, but the Minister reserves the right to issue regulations in this area. The protection of French-language instruction rights and privileges falls to the regional authority, but English school boards can also provide French-language instruction. (School Act, section 255)

The School Act stipulates that the principles of Francophone educational governance are recognized as being distinct from, and have no effect on, the English educational system. (School Act, preamble and section 254)

Summary of the law

School Act, RSA 2000, c S-3

Francophone education regions

Under the Alberta School Act, the Education Minister can designate Francophone education regions, which essentially function as school districts, as well as Francophone regional authorities, similar to school boards. (School Act, sections 253 and 255)

Right holders

The School Act basically uses the categories of eligible parents provided under section 23 of the Charter. (School Act, section 10)

Children of Francophone parents who live in one of the Francophone teaching regions are entitled to receive French-language instruction. Also, a regional authority can accept children even if the parents live outside the area over which it has jurisdiction. In addition, nothing in the Act prevents parents who are not right-holders in the meaning of section 23 of the Charter from requesting that their children receive instruction in French.(School Act, section 6)

Close to 6,000 students attend 34 French-language schools governed by five French school boards. In the last 10 years, enrolments in Alberta’s Francophone schools have been rising rapidly.

The beginnings of French-language teaching

In the mid-19th century, Catholic clergy founded the first French schools on the territory of what is now Alberta. Soon after, the Northwest Territories Act, 1875 gave Catholics the right to create public or separate schools, regardless of the language of instruction.

The following years were much more difficult, because with Ordinance 22, section 83, English became the sole language of instruction permitted starting from the third year of school studies.

After the creation of Alberta in 1905, the development of French-language study programs was largely undertaken by volunteer Francophone associations. The situation began to improve in 1964 when the School Act was amended and the teaching of French was permitted, one hour per day, from the third to the ninth grade. In 1976, changes to the School Act authorized teaching in French during 80% of the school day, from third to twelfth grade.

Section 23 of the Charter and school management by Francophones

In 1982, rights to education in the minority language were defined by section 23 of the Canadian Charter of Rights and Freedoms. One year later, Franco-Albertan parents sued the provincial government to force it to recognize its education-related language obligations. The province enacted a new School Act in 1988, but this did not give Francophones the right to manage schools.

The year 1990 saw Franco-Albertans’ biggest victory to date: the Mahé case, which set Francophone parents against Alberta. In that year, the Supreme Court of Canada confirmed that by reason of the remedial nature of section 23, the province of Alberta must allow Francophones to manage and control French schools, which it has done since 1993.

The current situation

Today, close to 6,000 students attend 34 French-language schools governed by five French school boards. In the last 10 years, enrolments in Alberta’s Francophone schools have been rising rapidly. There is already a lack of space in many schools and it is often difficult to obtain authorization to build new ones.

Under the School Act, the creation of new schools is not subject to a numerical threshold, because all children of Francophone parents living in an area served by one of the French school boards have the right to be educated in French. Matters are more complicated for Francophones living in regions served only by English school boards. However, the law does not prevent French school boards from accepting children who do not live in the areas they serve. They can also accept children who are not right-holders on a case-by-case basis.

Management

In British Columbia, the Conseil scolaire Francophone de la Colombie-Britannique (CSFCB) is responsible for French-language education throughout the province. (School Act, section 166.12)

Summary of the law

• School Act, RSBC 1996, c 412
• Francophone Education Authorities Regulation, BC Reg 212/99 OC 767/99

Right holders

The School Act uses essentially the same categories of eligible parents as those in section 23 of the Charter. (School Act, section 5) 

Immigrant parents and children

British Columbia is different from the other provinces in that it also guarantees the rights of immigrant parents and children. The School Act defines an “immigrant parent” as a parent who, if the person were a citizen of Canada, would have the right to have his or her children receive primary and secondary instruction in French in British Columbia, in accordance with the rights guaranteed in section 23 of the Charter. (School Act, section 1)

In addition to granting the CSFCB the right to educate immigrant children, the School Act provides that immigrant parents may become a member of the CSFCB in the same way as eligible parents and take part in the election of directors.(School Act, sections 166.13, 166.14 & 166.24(3))

The Conseil scolaire Francophone de la Colombie-Britannique (CSFCB) runs 37 schools attended by more than 5,300 students. On the matter of access to Francophone schools, the School Act follows section 23 of the Charter. Some immigrant parents can enroll their children in these schools and even vote for CSFCB administrators, but they have no right of power of management and control.

The beginnings of French-language instruction

For close to a century, Francophone schools in British Columbia were independent of the government and run by religious institutions. From 1964 to 1968, the Fédération canadienne-française de la Colombie-Britannique pressured the government of the province and the Department of Education to create secular Francophone schools. However, although a number of schools were established, few Francophones decided to leave the Catholic schools. This led to the birth of bilingual schools with immersion programs. In 1979, British Columbia officially created an education program for Francophones: the programme-cadre de français. 

Section 23 of the Charter and school management by Francophones

In 1982, minority-language education rights were defined in section 23 of the Canadian Charter of Rights and Freedoms. A few years later, in 1988, the Association des parents du Programme-cadre de français took legal action against the provincial government in order to obtain the right to manage the Francophone school system. The following year, the province’s School Act recognized Francophones’ right to education in French, but not the right to manage their schools. In December 1977, Justice Vickers of the Supreme Court of British Columbia found for the parents. Before the end of the 20th century, the Conseil scolaire Francophone de la Colombie-Britannique (CSFCB) succeeded in extending its powers to the entire province.

The current situation

In recent years, the number of enrolments has steadily increased to the point where there are insufficient places in the schools. In 2009, the CSFCB sought the help of the Ministry of Education to solve serious real-estate problems that were adversely affecting the quality of French-language education. The year 2010 was marked by preparations for and the filing of legal action brought by the CSFCB to compel the province to comply with section 23 of the Canadian Charter of Rights and Freedoms. In the view of the CSFCB, the government could make greater efforts to maintain substantive equality between the education programs of the majority and minority. Hearings were delayed and the mega-trial involving the CSFCB against the government of the province finally began in December 2013.

Management

In Manitoba, the Division scolaire franco-manitobaine (DSFM) is responsible for French-language primary and secondary education of students whose first language learned and understood is French. (Public Schools Act, sections 21.1 and 21.5(1)a)

Summary of the law

• Public Schools Act, CPLM, c P250
• Francophone Schools Governance Regulation – Public Schools Act, Man Reg 202/93

Programme d’accueil

The DSFM is also responsible for a “programme d’accueil,” defined as a program designed to improve the French-language skills of pupils having insufficient French-language skills. (Public Schools Act, sections 21.1, 21.5(2)b) and 21.15(2))

The number criterion

Although the Act states that French-language instruction programs are to be provided where numbers of pupils warrant, it does not specify what those numbers might be. (Public Schools Act, section 21.5(2))

Right holder

The Manitoba Act essentially uses the same categories of eligible parents as section 23 of the Charter. (Public Schools Act, section 21.15(1))

The Act defines a right-holder (“entitled person”) as a Canadian citizen who has received at least four years of primary school instruction in a Francophone program in Canada, or who is the parent of a child receiving primary or secondary school at instruction in a Francophone program in Canada. (Public Schools Act, section 21.1)

Other categories

Children of eligible parents living outside the territory of the DSFM, together with other categories of children, may also be eligible for a French-language instruction program at the discretion of the French school board. (Public Schools Act, sections 21.15(1)a), 21.15(5)-(6))

Applications for admission

All applications are sent to an admissions committee for evaluation. The committee makes recommendations to the DSFM, which then makes a decision. A parent or the school board can ask the Minister to review a decision of the DSFM. (Francophone Schools Governance Regulation, section 41 and Schedule E; Public Schools Act, sections 21.16 and 21.17)

Over 5,000 pupils attend one of the 24 Francophone schools of the Division scolaire franco-manitobaine (DSFM).

The beginnings of French-language instruction

The first Francophone schools were established in the first half of the 19th century. In 1870, at the time the province was created, French was recognized as one of the two official languages in the Manitoba Act. At this time, under the School Act, the financing of Francophone Catholic schools and teaching material was provided by the government.

Everything changed in 1890 when English became the sole official language of the province by virtue of the Official Language Act. In the same year, a new School Act withdrew public financing from confessional schools, which became private institutions.

For many decades, French was completely banned from public schools except at the turn of the century, when the Laurier-Greenway regulation allowed a course of religious education to be given in a language other than English.

In 1967, with the enactment of Bill 59, instruction in French could again be given in schools, but only for half the day. Some years later, in 1970, French and English became the two languages of instruction in Manitoba by virtue of Bill 113. 

Section 23 of the Charter and school management by Francophones

In 1982, rights to minority-language education were defined in section 23 of the Canadian Charter of Rights and Freedoms. In 1990, the Manitoba Court of Appeal ruled that the Public Schools Act did not fully comply with section 23 of the Charter. Then, in 1993, the Supreme Court of Canada rendered a similar judgment in the Reference re Public Schools Act.

The government then created a new Schools Act giving Francophones the right to manage their own schools, which led to the creation of the Division scolaire franco-manitobaine (DSFM). 

The current situation

Under the Public Schools Act, instruction may be given in French where there is sufficient demand. For this reason, although the powers of the DSFM do not extend over the entire province, it can obtain authorization to provide French-language instruction in regions, and even in schools, that are served by other school boards. DSFM schools can also accept pupils living outside the regions it covers.

In addition, the notion of right-holders in the Public Schools Act varies slightly from that in the Charter: Eligible parents must have received at least four years’ education in a Francophone program in Canada.

With regard to the language of instruction, English may not be taught for more than 25% of teaching hours from fourth to seventh grade.

Management

In New Brunswick, there are two distinct education sectors, one for the Francophone community and one for the Anglophone community. Educational programs and services must be developed and managed by persons who speak the official language of the school district. (Education Act, sections 4(1), 4(4) and 4(5); Governance Structure Regulation – Education Act, NB Reg 2001-48)

Summary of the law

• Education Act, SNB 1997, c E-1.12 
• Governance Structure Regulation, NB Reg 2001-48

Right-holders

Children who have sufficient linguistic proficiency in one of the official languages may choose to receive their education in that language. If needed, the student may take a test so that his or her linguistic proficiency can be determined. (Education Act (SNB 1997, c E-1.12) sections 5(1) and 5(2))

Autonomy in the promotion of language and culture 

Every school in New Brunswick has a parent school support committee, a majority of whose members are parents of pupils or representatives of parents. The parent committee advises the school principal regarding improvements to the school, particularly in matters concerning education, language and culture. (Education Act (SNB 1997, c E-1.12) sections 32 and 33. See also Governance Structure Regulation, NB Reg 2001-48, sections 3-20)

Each school district in New Brunswick has a district education council, charged with establishing, implementing and monitoring education plans and maintaining and developing culture and language. It is made up of councillors elected by the public. (Education Act, sections 36.1 to 36.9; Governance Structure Regulation, NB Reg 2001-48, sections 21-29)

Recommendations to the Minister

A curriculum advisory committee may make recommendations to the Minister concerning study programs, teaching and courses. The Minister must approve these recommendations and is also responsible for implementing them. (School Administration Regulation, NB Reg 97-150, sections 31, 32 and 34)

Regulations

The Lieutenant-Governor in Council may make regulations concerning almost all aspects of education and schools. (Education Act, section 57)

Funding for substantive equality

The Minister of Education of New Brunswick must divide financial resources equitably between the Anglophone and Francophone education sectors. The Act stipulates that equitable division must take into account the needs and particular circumstances of each sector. (Education Act, section 44)

Close to 30,000 students are enrolled in one of the 93 Francophone schools represented by three district education councils. 

The beginnings of French-language instruction

In the early days of French settlement in New Brunswick, French education was provided by missionaries. Under the British regime, Francophone schools in Acadia were ineffective in countering assimilation policies and a growing number of Acadians were illiterate. In the first half of the 19th century, education throughout the province was provided in English only. Religious communities, lacking the funds to create schools, attempted merely to provide religious education in French. 

In 1845, an inquiry found that education in New Brunswick must be significantly improved and better controlled. The Parish School Act gave protection to Catholic education and textbooks in French were sent from Quebec. 

Some years after the creation of the province of New Brunswick within the Canadian Confederation, the Common Schools Act founded a free public school system in which English was the sole language of instruction. Then, in 1975, it became possible for Francophone students to study in French in public primary schools. From the end of the 19th century until the 1960s, the only truly Francophone schools were private schools. 

The Official Languages of New Brunswick Act and school management by Francophones

In 1969, amendments to the Official Languages of New Brunswick Act brought about a wave of favourable change for Francophones. The school system was split and administered by two Deputy Ministers of Education, one Francophone and the other Anglophone. 

Still today, their powers extend over the entire province. The Education Act of 1996 abolished school boards in order to reorganize them based on schools’ language of instruction. This was achieved in 2001 with the creation of district education councils.

The current situation

Under section 12 of the Official Languages of New Brunswick Act, students in the province must learn both official languages. French is the primary language of instruction for Francophones and Anglophones are obliged to learn French as a second language. In addition, students have a choice of receiving instruction in the language they know best. This enrolment criterion is added to the eligibility criteria of parents under section 23 of the Charter. 

Funding is divided equitably between the Francophone and Anglophone sectors, taking into account the needs of each sector rather than the number of students. In addition, since 2014, New Brunswick has had a Linguistic and Cultural Development Policy.

Management

The Conseil scolaire Francophone provincial de Terre-Neuve-et-Labrador (CSFP) is responsible for French-language instruction in the entire province. It largely holds the same powers and functions as English school councils, and administers, in particular, kindergarten, primary and secondary education. (Schools Act, sections 94(1), 75(1), 76, 97(1), 98(1), 111(3) and 113)

Summary of the law

• School Act, SNL 1997, c S-12.2 

Language of operation of the conseil scolaire

The CSFP operates in French but may as necessary communicate in English. The same applies to conseils d’école. (Schools Act, sections 94 and 107(2))

Required numbers 

In Newfoundland and Labrador, no provision of the law specifies the number of students necessary to warrant French-language instruction. (Schools Act, section 9)

Right-holders

No provision of the Act prohibits Francophone school councils from authorizing parents who are not right-holders under section 23 to enrol their child in a French school. It would therefore seem that school councils may authorize parents to enrol their children. 

Definition of minority-language instruction 

The Schools Act gives no definition of what constitutes minority-language instruction. Consequently, it is not known whether French-language instruction includes French immersion programs. 

Promotion of cultural identity and the French language 

In French schools of Newfoundland and Labrador, all administrators, directors and teachers have a duty to promote cultural identity and the French language. (Schools Act, sections 24(3)m), 33(f) and 80(1)p))

Local consultations and administration of structures 

The conseil scolaire Francophone must consult with the voting members of a conseil d’école on the operation of a school, including the assignment of employees. In addition, the trustees of the conseil scolaire Francophone are elected by members of the conseils d’école. The Act also stipulates that the cultural, linguistic and educational interests of each school must be represented in the obligations, functions and mission of Francophone conseils d’école. (Schools Act, sections 97(2), 95(1) and 106-108)

Funding

In accordance with the scales established by the Minister, the conseil scolaire receives from the government the resources necessary for the operation and maintenance of French schools, transportation of students, school facilities and other education-related expenses in French first language schools. The conseil scolaire makes recommendations to the Minister regarding the financial needs of French schools and the Minister must follow these recommendations. However, funding required for the construction, extension and equipment of French first language schools must be voted by the Newfoundland and Labrador legislature. (Schools Act, sections 100 and 101)

Close to 300 students attend one of the five Francophone schools of the Conseil scolaire Francophone provincial de Terre-Neuve-et-Labrador (CSFP). 

The beginnings of French-language instruction

For some Francophones in this province, French-language instruction began without any legal recognition in the early 1960s in Labrador City, where a large number of Quebeckers had settled, most of them temporarily. 

While massive assimilation was taking place almost everywhere in the province, the opening in 1975 of an immersion school in Cap-Saint-Georges was seen as a means to help Francophone children from the locality strengthen their connection with their linguistic heritage.

Section 23 of the Charter and school management by Francophones

In 1982, rights to education in the minority language were recognized under section 23 of the Canadian Charter of Rights and Freedoms. Two years later, the first French first language education program was introduced in Grand’Terre. However, it was not until 1991 that the Schools Act adopted the right-holder categories set out in the Charter. Despite the passing of this Act, it was very difficult for Francophones to secure homogeneous schools and control over them. Only after several years of struggle and legal action did the provincial government give Francophones the right to a school council. 

In 1998, the Conseil scolaire Francophone provincial de Terre-Neuve-et-Labrador (CSFP) was created.

The current situation

There is no provincial law specifying the minimum number of students to warrant the creation of a new school. Neither is there any law that sets out the necessary measures that would authorize the enrolment of children whose parents are ineligible under section 23 of the Charter. 

In general, transfers are made with the agreement of the CSFP and the area’s English school council. Children who speak neither French nor English can also obtain authorization to attend a Francophone school. 

With regard to funding, the Department of Education decides on the amount allocated to Francophone schools. The CSFP can make recommendations and, when it is a matter of funds for construction, members of the provincial parliament must vote. 

French first language education is still in its infancy in Newfoundland and Labrador, and it is reasonable to believe that more Francophone schools will be built in the coming years.

Management 

The Education Act divides the province of Quebec into territories and assigns an English school board to each territory. (Charter of the French Language, sections 73, 76, 81, 86 and 86.1)

Summary of the law

• Charter of the French Language, CQLR c C-11
• Regulation respecting requests to receive instruction in English, CQLR c C-11, r 5
• Education Act, CQLR c I-13.3

Right of management and control

In Quebec, at least two persons from the English-language education sector must be part of the Comité d’agrément des programmes de formation à l’enseignement. This teacher training program accreditation committee advises the Minister on various issues related to teacher training programs. (Education Act, chapter VII, section II.I, section 477.14)

School board 

A school board wishing to offer English-language instruction must obtain the prior authorization of the Minister of Education, Recreation and Sports. The Minister will only grant authorization if he considers that it is warranted by the number of pupils. (Charter of the French Language, section 79)

Right-holders

Several criteria must be met for a child to be eligible for English-language instruction, and decisions are taken on a case-by-case basis. The criteria are set out in section 73 of the Charter of the French Language. 

However, a child who has been declared non-eligible may be declared eligible by the Minister upon a “reasoned request” and on the recommendation of an examining committee, where “warranted by serious family or humanitarian situation.” (Charter of the French Language, section 85.1)

Language of instruction 

French is the language of instruction in Quebec unless the conditions of eligibility for English-language instruction provided in the Charter of the French Language are met. Moreover, this Charter expressly prohibits children who are not eligible from receiving instruction in the minority language, unlike the laws of other provinces. (Charter of the French Language, sections 6, 72 and 78.1)

Application

In order for the children to receive instruction in English in Quebec, parents must apply in writing to a school body. These bodies are listed in the Schedule of the Charter of the French Language and also include private educational institutions. (Regulation respecting requests to receive instruction in English, section 1)

Determination of eligibility

The Minister of Education, Recreation and Sports designates and empowers persons to determine the eligibility of children for instruction in English. The government determines the analysis framework used to establish whether the criterion regarding the major part of education is met. (Charter of the French Language, section 75 and Regulation respecting requests to receive instruction in English, sections 13 and 15)

Legal review

Any decision concerning a child's eligibility for instruction in English may be contested before the Administrative Tribunal of Quebec within 60 days of notification of the decision. (Charter of the French Language, section 83.4)

Vocational training centres

Vocational training centres are considered to be schools for the purposes of the application of section 72 of the Charter of the French Language, which means that teaching in the centres is normally given in French. Persons who meet the eligibility criteria for English-language instruction can request that their training be provided in English, where numbers warrant. (Education Act, section 99)

Colleges and university-level institutions 

All institutions providing college instruction that are subsidized and some university level institutions (particularly Anglophone universities) must adopt a language policy. This policy must cover the use and the quality of the French language in the institution. (Charter of the French Language, sections 88.1, 88.2 and 88.3)

The Commission scolaire Francophone des Territoires du Nord-Ouest (CSFTNO) provides French-language instruction for 250 pupils in two homogeneous schools in Yellowknife and Hay River. 

The beginnings of French-language instruction

In the 19th century, French was a major language of education in the Northwest Territories due to the presence of Catholic missions run by Francophones. In 1892, a law made English the official language of the Northwest Territories and the sole permitted language of instruction. It was not until the Canadian Charter of Rights and Freedoms was adopted that some NWT Francophones were able to have access to education in their mother tongue. The French first language education program was introduced in 1989. In the same year, École Allain St-Cyr opened its doors in Yellowknife. It was recognized as homogeneous, although it shared the premises of an English school for some months. 

In 1994, the Conseil scolaire Francophone de Yellowknife was created and given partial management of French-language education. At the turn of the 21st century, Francophones requested and obtained the creation of the Commission scolaire Francophone des Territoires du Nord-Ouest (CSFTNO). 

The current situation

At present, the CSFTNO serves only these communities, because although right-holders in the province are defined under section 23 of the Charter, the Minister of Education decides to which school district the section applies. However, French-language instruction is not limited to CSFTNO schools. 

Francophone parents whose children attend a school run by one of the majority school boards have the right to request creation of a Francophone school council within the Anglophone administration. Other divisional French school boards can be created if the Minister considers that the number of students is sufficient.

In 2012, CSFTNO went to the Northwest Territories Supreme Court because it considered that the condition of its schools did not represent substantive equality with regard to education in the two official-language communities. Justice Charbonneau confirmed that under section 23 of the Charter, both schools needed to be expanded in order to secure substantive equality. She also granted the CSFTNO the right to manage access to its schools. January 9^th, 2015, Justice Charbonneau’s decision was overturned by the NWT Court of Appeal. It is still left to be seen whether this case will be heard by the Supreme Court of Canada. 

Management

A single French school board, the Conseil scolaire acadien provincial (CSAP), has jurisdiction over minority-language instruction throughout Nova Scotia. In general, the CSAP has the same duties and powers as English school boards. Generally, the CSAP conducts its activities in French, but when circumstances warrant, it must communicate in English. (Education Act, section 11(1)-(2) and section 15)

Summary of the law

• Education Act, SNS 1995-96, c 1 
• Governor in Council Education Act Regulations, NS Reg 74/97 

Right-holders

In Nova Scotia, a parent wishing to have a child receive education in the minority language must complete a form and submit it to the CSAP. The Minister has the last word as to a parent’s eligibility. (Governor in Council Education Act Regulations, section 55)

The number criterion

In Nova Scotia, no provision stipulates the number of students that warrants the provision of French first language instruction. (Education Act, section 12 and Governor in Council Education Act Regulations, section 56(1))

Parents not eligible under section 23 

No provision of the Education Act prohibits French school boards from authorizing parents who are not right-holders under section 23 to enrol their child in a French school. It would seem, therefore, that school boards may authorize such parents to enrol their children. 

Creation of a class

The CSAP cannot create a class of students without first “discussing” the matter with the local majority language school board and obtaining the approval of the Minister. (Governor in Council Education Act Regulations, section 56(2))

The Conseil scolaire acadien provincial (CSAP) operates 21 schools attended by over 4,500 students. 

The beginnings of French-language instruction

In the early days of French settlement in Nova Scotia, French education was provided by missionaries. Under the British regime, Francophone schools in Acadia were ineffective in countering assimilation policies and a growing number of Acadians were illiterate. In 1841, a provincial law allowed teaching in French and other minority languages. At that time, the costs of the few Francophone schools were borne by religious communities and by parents. 

After the rise of the Orange movement, the Education Act, or Tupper Law, prohibited Catholic schools and made English the sole language of instruction. Many years later, in 1902, French could be taught up until the third year in public schools and in all grades and private schools. It was not until 1981 that the Education Act (Bill 65) was amended to authorize Acadian schools. However, in some areas, access to French-language instruction is still difficult.

Section 23 of the Charter and school management by Francophones

In 1982, rights to education in the minority language were recognized under section 23 of the Canadian Charter of Rights and Freedoms. At the end of the 1980s, when the Cape Breton School Board prevented the creation of a French school, the Nova Scotia Court of Appeal ruled that under the Charter, Acadians have the right to have their children educated in French. 

By 1990, the majority of Acadian schools were bilingual and, although a French school board existed, it was not recognized by the provincial government and thus had no power. One year later, with the enactment of the School Boards Act, French school boards were permitted and the Conseil scolaire acadien provincial (CSAP) was created. 

In the late 1990s, Acadians demanded the creation of homogeneous secondary schools. At the turn of the century, the case was brought before the courts of the province, and in 2003 the Supreme Court of Canada confirmed that the province must build homogeneous secondary schools in order to fulfil its linguistic obligations under the Charter.

The current situation

In Nova Scotia, the regulation determines those who are entitled to receive French first language education. This corresponds with the right-holder criteria of section 23 of the Charter. 

In order to provide French-language education for children who attend a school operated by another school board, the CSAP must first obtain the authorization of the school board concerned and of the Minister of Education. Francophone schools in Nova Scotia are required to promote Acadian culture and English may be taught only as a subject. The CSAP encourages the participation of the Francophone community as well as of the parents of students.

Management

In Nunavut, the Commission scolaire Francophone has jurisdiction over French-language instruction everywhere in the territory. (Education Act, section 164)

Summary of the law

• Education Act, SNu 2008, c 15

Right-holders

Eligible parents under section 23 of the Charter are entitled to have their children receive French-language instruction. However, this right applies only to areas of Nunavut where French-language instruction is financed by public funds. (Education Act, section 160)

Petitions regarding French-language instruction

Eligible parents may petition the Minister for the provision of French-language instruction provided out of public funds in a French-language school under the jurisdiction of the Commission scolaire Francophone, or in classrooms in a majority school. The petition may be presented directly to the Minister or through the Commission scolaire Francophone. (Education Act, section 161)

Promotion of the French language

The Nunavut Education Act stipulates that teachers and school principals in schools or classrooms under the jurisdiction of the Commission scolaire Francophone must promote fluency in the French language and knowledge of Francophone culture. (Education Act, section 180)

The Commission scolaire Francophone du Nunavut (CSFN) administers one school in Iqaluit which is attended by about 100 pupils. 

The beginnings of French-language instruction

In the territory that is today Nunavut, French-language instruction began on a small scale with Catholic mission schools. 

When the Canadian Charter of Rights and Freedoms was adopted in 1982, Francophones were granted the right to education in French, but they first had to ask the Northwest Territories government to respect this right. This was because Nunavut had not yet been recognized as a separate territory. In the following two years, Francophone parents of Iqaluit attempted to assert their rights. French-language instruction gradually improved until the end of the 20th century: the number of hours, and then the number of school years, increased. 

In 1999, when Nunavut became a territory independent of the Northwest Territories, the new Minister of Education signed a memorandum of agreement showing that he agreed that a French first language school should be built in Iqaluit.

The current situation

The “Language of Instruction” part of the Education Act does not apply to the CSFN, which has the mandate to promote the French language and Francophone culture. Right-holders may, under the Charter, receive education in French, but only in places where French-language instruction is financed with public funds. In addition, Francophone parents may request that French be taught in classes in majority schools and even that a homogeneous school be built if the number of students warrants. 

Management 

The French and English school boards of Ontario are under the jurisdiction of the Ministry of Education and hold exactly the same powers and duties, except with regard to financing. (Education Act, sections 170-173)

Summary of the law

• Education Act, R.S.O. 1990, CHAPTER E.2

Financing

Every school board is financed by property taxes and grants. In addition, the Education Act stipulates that the rules governing financing must be implemented in such a way as to respect the rights conferred by section 23 of the Canadian Charter of Rights and Freedoms. (Education Act, sections 234-235)

Right-holders

In Ontario, eligibility for French-language education is not subject to any number criterion. Thus, all children of parents who are eligible under subparagraph 23(1)a) and paragraph 23(2) of the Charter have the right to be educated in the minority language. (Education Act, section 33 and 36)

Admission of non-Francophone pupils 

It is possible for a child of parents who are not eligible under section 23 to be accepted for French-language education at the request of one of the child’s parents. An admissions committee made up of various members of the Francophone minority can decide to accept the child. (Education Act, section 293)

Ability to submit proposals

In areas of Ontario that do not have a French school board, a group made up of ten Francophone right-holders may submit proposals regarding the educational and cultural needs of the minority to the school authority. (Education Act, section 294)

Teaching of English 

In French-language classes and schools, English must be taught as a subject from the fifth to the eighth grade. It can also be taught at all levels. (Education Act, section 292)

There are eight Catholic French school boards and four French public school boards. The powers of these school boards extend throughout almost the entire province, and they operate 393 schools attended by over 87,000 pupils. 

The beginnings of French-language instruction

The first Francophone schools began to appear at the end of the 18th century. Much later, United Canada decided to protect the educational rights of religious minorities. Catholic schools thus became “separate schools.” This protection lasted only a few decades, because in 1885, English became the mandatory language of instruction and the use of French was restricted to the early years of primary school. 

Between 1912 and 1927, French-language education was seriously threatened. Regulation 17 made English the sole language of communication and instruction in schools, both public and separate. Throughout Ontario, primary school teachers resisted by continuing to teach French, but the government threatened them with dismissal. 

Subsequently, the Scott-Marchand-Côté Report, published in 1927, declared that French must be used as a main language of instruction in elementary schools. The following years were much easier for Francophones, since Regulation 17 was abandoned. Then, at the end of the 1960s, the government attempted to tackle school dropout rates of young Franco-Ontarians. With Bill 122, it subsidized public French-language secondary schools. 

Section 23 of the Charter and school management by Francophones

In 1982, the right to education in the minority language was recognized in section 23 of the Canadian Charter of Rights and Freedoms. In the following year, the Ontario Reference on Education gave school boards the power to decide the minimum number of children to warrant education in French. Although Francophones participated in the operation of the schools, they did not begin to obtain school boards until the late 1980s. 

In 1997, Bill 104 was enacted and 12 French-language school boards were created. However, it was not until January 1, 1998 that Franco-Ontarians were granted complete management of schools operated by their school boards.

The current situation

Eligibility criteria for French-language schools are the same as those defined in the Charter. However, other children may be accepted with the authorization of an advisory committee made up of members of the French school board. In Ontario, French is one of the two official languages of education and Francophone schools, both Catholic and public, are fully financed by the provincial government. In addition, Ontario has had a language development policy for French-language education since 1994.

Management

Prince Edward Island’s French school system is administered by a single school board across the province, the Commission scolaire de langue française (French Language School Board). 

Summary of the law

• School Act, RSPEI 1988, c S-2.1  
• School Act French First Language Instruction Regulations 

Right-holders

Parents in Prince Edward Island who wish to assert that they belong to one of the three eligible categories must file a declaration which is approved by the CSLF. The Minister can verify a declaration and has the last word on a parent’s eligibility. (School Act French First Language Instruction Regulations, section 3)

The CSLF can authorize parents who are not eligible for the rights provided under section 23 to enrol their children in French schools. However, the children of parents who are not right-holders under section 23 must be “released” by the local English school board. (Education Act, section 114(d); School Act French First Language Instruction Regulations, section 10(1)-(2))

The number criterion

There must be a threshold of 15 children over two consecutive grade levels in order for French first language instruction, or transportation to an area where such instruction is given, to be provided. (School Act, section 112; School Act French First Language Instruction Regulations, sections 1(f) and section 5)

Opening of a new class

The opening of a new class requires authorization from the Minister, who determines whether the project is reasonable. (School Act French First Language Instruction Regulations, section 6(2)-(3))

The Commission scolaire de langue française (CSLF) is responsible for six schools attended by more than 800 students. 

The beginnings of French-language instruction

The first Francophone schools appeared at the start of the 19th century. Before Prince Edward Island joined the Canadian Confederation in 1873, there were a number of Francophone Catholic schools spread throughout the province. Some years later, in 1877, Catholic schools were abolished under the Public School Act. French-language instruction was in jeopardy. Francophones encouraged French-language education in public schools. 

By the mid-20th century, Francophones had succeeded in obtaining bilingual Acadian schools in which French was the main language of instruction until sixth grade. However, for many years these schools did not receive the same funding as English-language schools. From the 1950s onwards, consolidation of the education system resulted in the disappearance of many small schools and the building of larger ones. By the end of the 1970s, there remained only one Francophone school, in the Évangeline area.In 1980, the School Act was amended to authorize French first language education programs. 

Section 23 of the Charter and school management by Francophones

A committee of parents sought legal remedy and, in 1987, the province’s Court of Appeal ruled that the School Act did not comply with the Canadian Charter of Rights and Freedoms. The School Act was amended in light of section 23 of the Charter, but a minimum of 25 students was required to justify the creation of a French-language class. On July 1^st, 1990, the Commission scolaire de langue française (CSLF) officially obtained the power to manage French-language education everywhere in the province. In 1996, the Fédération des parents de l'Île-du-Prince-Édouard demanded the construction of a Francophone school in Summerside to receive students from the area. This case, known as the Arsenault-Cameron case, went to the Supreme Court of Canada which, in 2000, ruled in favour of the parents. 

The current situation

In order for their children to study at one of these schools, parents must complete a declaration attesting to the fact that they are right-holders under section 23 of the Charter. It is not impossible, however, that other children could be authorized to attend a Francophone school. A minimum of 15 children in two consecutive classes is required to justify French-language instruction or transportation to a Francophone school. The CSLF can request additional funding through property taxes if required.

Management 

The Education Act divides the province of Quebec into territories and assigns an English school board to each territory. (Charter of the French Language, sections 73, 76, 81, 86 and 86.1)

Summary of the law

• Charter of the French Language, CQLR c C-11
• Regulation respecting requests to receive instruction in English, CQLR c C-11, r 5
• Education Act, CQLR c I-13.3

Right of management and control

In Quebec, at least two persons from the English-language education sector must be part of the Comité d’agrément des programmes de formation à l’enseignement. This teacher training program accreditation committee advises the Minister on various issues related to teacher training programs. (Education Act, chapter VII, section II.I, section 477.14)

School board 

A school board wishing to offer English-language instruction must obtain the prior authorization of the Minister of Education, Recreation and Sports. The Minister will only grant authorization if he considers that it is warranted by the number of pupils. (Charter of the French Language, section 79)

Right-holders

Several criteria must be met for a child to be eligible for English-language instruction, and decisions are taken on a case-by-case basis. The criteria are set out in section 73 of the Charter of the French Language. 

However, a child who has been declared non-eligible may be declared eligible by the Minister upon a “reasoned request” and on the recommendation of an examining committee, where “warranted by serious family or humanitarian situation.” (Charter of the French Language, section 85.1)

Language of instruction 

French is the language of instruction in Quebec unless the conditions of eligibility for English-language instruction provided in the Charter of the French Language are met. Moreover, this Charter expressly prohibits children who are not eligible from receiving instruction in the minority language, unlike the laws of other provinces. (Charter of the French Language, sections 6, 72 and 78.1)

Application

In order for the children to receive instruction in English in Quebec, parents must apply in writing to a school body. These bodies are listed in the Schedule of the Charter of the French Language and also include private educational institutions. (Regulation respecting requests to receive instruction in English, section 1)

Determination of eligibility

The Minister of Education, Recreation and Sports designates and empowers persons to determine the eligibility of children for instruction in English. The government determines the analysis framework used to establish whether the criterion regarding the major part of education is met. (Charter of the French Language, section 75 and Regulation respecting requests to receive instruction in English, sections 13 and 15)

Legal review

Any decision concerning a child's eligibility for instruction in English may be contested before the Administrative Tribunal of Quebec within 60 days of notification of the decision. (Charter of the French Language, section 83.4)

Vocational training centres

Vocational training centres are considered to be schools for the purposes of the application of section 72 of the Charter of the French Language, which means that teaching in the centres is normally given in French. Persons who meet the eligibility criteria for English-language instruction can request that their training be provided in English, where numbers warrant. (Education Act, section 99)

Colleges and university-level institutions 

All institutions providing college instruction that are subsidized and some university level institutions (particularly Anglophone universities) must adopt a language policy. This policy must cover the use and the quality of the French language in the institution. (Charter of the French Language, sections 88.1, 88.2 and 88.3)

There are nine English school boards serving various regions of Quebec. 

The beginnings of English-language instruction 

Shortly after the conquest, Anglophones founded their first schools with the help of Protestant clergy. In 1801, the first education act was passed by the legislative assembly, making education free, all expenses being borne by the state. Confessional schools were however permitted and became private. In 1869, with amendments to the Acte pour modifier les lois concernant l'éducation en cette province, education became entirely confessional. For close to a century, there were two school systems: one Catholic, the other Protestant. 

Things changed in 1963 when the government of Quebec took back control of education and standardized teaching programs for all schools. In 1974, the Loi sur la langue officielle was enacted. It made French the sole official language of Quebec and restricted access to English school for new arrivals. 

Subsequently, the Charter of the French Language (Bill 101), passed in 1977, permitted English-language education only to children whose parents or sibling had attended English primary school in Quebec.

The Canadian Charter of Rights and Freedoms and school management 

In 1982, rights to education in the minority language were recognized under section 23 of the Canadian Charter of Rights and Freedoms. One year later, the Superior Court of Quebec ruled that Bill 101 did not comply with the Canadian Charter. Under section 23, children having a parent who has been educated in English elsewhere in Canada can also be admitted to English-language schools in Quebec. 

In 1997, section 93 of the Canadian Constitution was amended, allowing the National Assembly of Quebec to enact Bill 118 2-D to secularize and create school boards based on language rather than religion.

The current situation

Since the early 2000s, English schools have been facing numerous challenges, including dispersion of pupils, financial problems, and a shortage of teachers. However, the greatest challenge is that of access to education in English. In Quebec, subparagraph 23(1)a) of the Canadian Charter has not entered into force. It is therefore much more difficult for immigrants to receive English-language education. 

In 2002, Quebec passed Bill 104, amending the Charter of the French Language. This Bill was designed to close a “loophole” by prohibiting pupils from gaining access to English-language public schools by studying for less than a year in non-subsidized English schools. The Nguyen case contested Bill 104 before the Supreme Court of Canada, and in 2009 the Court invalidated Bill 104.

Management

The Conseil des écoles fransaskois (CÉF), also named Conseil scolaire fransaskois under the terms of the Act, is responsible for French-language instruction throughout the province. (Education Act, 1995, section 40)

Summary of the law

• Education Act, 1995, SS 1995, c E-02
• The Conseil scolaire fransaskois Election Regulations, RSS Reg 4/1998

Fransaskois school

The act defines “fransaskois school” as a school that is in a Francophone education area and is under the jurisdiction of the conseil scolaire and in which courses are taught primarily in French, the language of communication with pupils and parents is predominantly French, and where the French language is used and developed as the first language of communication and in school activities. (Education Act, 1995, section 2)

Proposal for Francophone education area

Parents can ask the CÉF to create a Francophone education area, a fransaskois school, or to establish a French-language instruction program. (Education Act, 1995, sections 43, 43.1, 44, 47, 48 and 181)

The Act lists 10 specific factors that the CÉF must consider in evaluating a proposal. (Education Act, 1995, section 43.1(3))

Right holders

The Saskatchewan Education Act basically uses the same categories of eligible parents as section 23 of the Charter. Under the Act, children of a “minority language adult” are entitled to attend a fransaskois school in the Francophone education area in which they are resident.(Education Act, 1995, section 143(1)) 

Ineligible parents

In the definition of “minority language adult”, the Act excludes parents who received their education in a French immersion program, meaning that these parents are not considered as being eligible for the purposes of subparagraph 23(1)b) and paragraph 23(2) of the Charter.(Education Act, 1995, section 2)

Parents who are not minority-language adults under the terms of the Act can nevertheless have their children educated in a fransaskois school if this is agreed to by the CÉF and the education board of the school division where these children would otherwise attend school. (Education Act, 1995, section 144)

Over 1,800 students attend 15 Francophone schools in regions that come under the jurisdiction of the Conseil des écoles fransaskoises (CÉF).

The beginnings of French-language instruction

The first Francophone schools in Saskatchewan were founded as early as 1860. Later, the Northwest Territories Act, 1875 gave Catholics the right to create school districts, regardless of the language of instruction. The following years were much more difficult, because in 1886 an ordinance made English the only language of instruction permitted from the third year of study. In 1892, another decree deprived religious communities of the right to administer their schools. At the start of the 20th century, all the endeavours of Francophones were hampered by the rise of the Orange movement, which sought to prohibit the use of foreign languages in the province’s schools. In 1929, the Anderson government decreed that French could be taught for only one hour per day. In 1944, Francophones lost the right to manage their small districts, which were amalgamated with large educational bodies.

At the end of the 1960s, the Thatcher provincial government gradually restored the rights of the province’s Francophones. In 1968, it passed an amendment enabling schools to be designated in which French could be used as the language of instruction. This designation was subsequently modified by the School Act in 1979, in order to differentiate Francophone schools from immersion schools. Nevertheless, whether Francophone or not, students can enrol in either of these types of schools. 

Section 23 of the Charter and school management by Francophones

In 1982, rights to education in the minority language were defined under section 23 of the Canadian Charter of Rights and Freedoms. But since assimilation rates remained alarming, Francophones wished to obtain the right to manage and control their own schools. Since the government of the time refused to grant this right to Saskatchewan Francophones, they took the matter in front of the Court of Queen’s Bench. In 1988, Justice Ross Wimmer confirmed that the School Act did not comply with section 23 of the Charter and that Francophones may attend and manage separate schools. But it was not until Bill 39 was enacted in 1993 that Francophones gained control of Franco-Saskatchewan schools. 

The current situation

Under the Education Act, 1995, in order to attend a Francophone school in Saskatchewan, children must have one minority-language parents or obtain authorization from the CÉF and the English school board of the region.

The CÉF budget comes from subsidies, but from 2008, it has requested assistance from the provincial government to cope with a financial crisis. After several years of negotiation, the Council returned to the Court of Queen’s Bench in May 2013 and in August 2014 to demand more funds before the start of the school year.

Management

The Francophone school board has jurisdiction over and administers French-language instruction in the Yukon. (French Language Instruction Regulation, section 10) 

Summary of the law

• Educationact, LRY 2002, c 61
• French Language Instruction Regulation, YOIC 1996/99

French-language instruction in areas outside Whitehorse

Where numbers warrant, the school board has the power to provide French-language instruction classes in areas outside the city of Whitehorse. (French Language Instruction Regulation, section 10)

Right Holders

The Yukon Education Act stipulates that children whose parents are right-holders under section 23 of the Charter are entitled to education in French. In addition, children whose parents would have the right if they were Canadian citizens or if the application of section 23 of the Charter were not limited to Canada are also entitled to French-language instruction.(Education Act, section 56; French Language Instruction Regulation, section 2)

Immersion programs and French as a second language programs

In the Yukon, persons who have received French-language instruction through French immersion programs, French as a second language programs and French adult classes are not considered eligible under the terms of section 23 of the Charter. (French Language Instruction Regulation, section 2)

More than 200 Whitehorse pupils attend a primary school, École Émilie-Tremblay, and a secondary school, Académie Parhélie. The Education Act recognizes the right to French-language instruction and uses the same eligibility criteria as the Charter. 

The beginnings of French-language instruction

Although the Francophone presence in the Yukon dates back to the 19th century, it was not until the Canadian Charter of Rights and Freedoms was adopted that Franco-Yukoners began pushing for the creation of a French mother tongue educational program. They very quickly obtained support from half of the school committees of schools in Whitehorse and the assistance of the Department of Education.

In 1984, the core French program for Francophone pupils in the territorial capital was created. By the end of the 1980s, the core program was offered from kindergarten through to ninth grade and officially became École Émilie-Tremblay. But it was not until the start of the 1990 school year that the school had its own premises and became homogeneous.

The Commission scolaire Francophone du Yukon (CSFY) was created in 1996, but Francophones still do not have full management of their school. 

The current situation

In the Yukon, many immigrants may enrol in Francophone schools. Apart from Francophones from Whitehorse, there are many other right-holders elsewhere in the Territory.

The powers of the CSFY are not limited to the territorial capital and, where numbers warrant, it may provide Francophone education in other areas. In 2009, the issue of full management by the CSFY had still not been settled and the organization took legal action against the territory. Two years later, Justice Ouellette of the Yukon Supreme Court found in favor ofthe CSFY. The territorial government, believing that the judge had not been impartial, took the matter to the Appeal Court. In winter 2014, the Court confirmed the judge’s bias and overruled her decision.

The case is now before the Supreme Court of Canada as the CSFY continues its fight for full management of its schools. In the meantime, there is a lack of space in the premises shared by the two Francophone schools and portable constructions have become necessary to receive all the students.