Language Rights of French and English Minorities in Canada

Introduction

Here, you will find all you need to broaden your knowledge about constitutional language rights. All the information is divided into four categories:

  • Communications and services
  • Judiciary
  • Legislative
  • Education

Please note:
This information is general in nature and is intended to explain constitutional language rights as a whole. It does not constitute legal advice, and any questions about the scope and interpretation of the provisions applicable to a particular situation should be addressed to a lawyer for legal advice.

More information can be found in the Legal Framework section of this site.
 
Source of language rights
Source of language rights

 

Language rights and cultural identity

Section 16 of the Canadian Charter of Rights and Freedoms recognizes two official languages of Canada, English and French. It gives them equal status and use, which means that both official languages have the same legal value. It is this constitutional recognition that distinguishes English and French from all other languages spoken in Canada.

Constitutional language rights are based on equality of identity, that is, the fact of belonging to the French-speaking and English-speaking European founding peoples. Cultural identity and the equality of Anglophone and Francophone cultural identity in judicial matters were recognized by the Supreme Court in the 1999 Beaulac case.

In that decision, the Supreme Court asserted that language is a very personal matter that forms an important part of cultural identity. It drew a clear distinction between language rights in a trial and the universal right to a fair trial, which applies to all defendants, regardless of their language.

This recognition of equality imposes an obligation of equal treatment for both official languages. This means that administrative inconvenience is no excuse for a failure to respect obligations and that the exercise of language rights does not constitute a request for accommodation.

“Positive” rights

A right is positive when it obliges the government to act. An example of a positive constitutional right is Section 20 of the Charter which provides that the government must offer services in both official languages. The government must act, that is to say, it must take the necessary steps to ensure it respects its obligations.

In contrast, a negative right prohibits a behaviour or state intervention. Criminal Law is a negative right; for example, it is prohibited to steal.

As emphasized by the Supreme Court in several decisions (Beaulac, Arsenault- Cameron, Doucet-Boudreau, Mahé, etc.), constitutional language rights are distinctive rights and have specific characteristics. What are their characteristics? They are always positive.

We also may refer to these rights as individual rights because they aim to repair past mistakes and any wrongdoing. When we talk about past mistakes and wrongdoing, we are referring to provincial laws that prohibited French-language instruction and assimilation policies that were enacted by different governments. As such, the Supreme Court has established that the interpretation of constitutional language rights must always take into account the historical context.

Communication Services

Definitions - Laws - Services

Your right is enshrined in Section 20 of the Canadian Charter of Rights and Freedoms (Charter).

What is the right to communications and services?

Any member of the public in Canada has the right to:

  • communicate with, and to receive available services from, any head or central office of an institution of the Parliament or Government of Canada in English or French, and
  • communicate with, and to receive available services from, any other office of any such institution where:
    1. there is a significant demand for communications with and services from that office in such language; or
    2. due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

Section 20 of the Charter and Part IV of the Official Languages Act define specific measures concerning services, communications and active offer.

"The Official Languages Act aims to ensure that the federal government of Canada is able to provide services to English- and French-speaking Canadians in the language of their choice. The Official Languages (Communications with and Services to the Public) Regulations set out the rules for determining which offices must provide services in both official languages."

-- Office of the Commissioner of Official Languages

In section 20, what does “communicate with, and to receive […] services from” mean?

This concept’s meaning has not yet fully been defined; however, for your information, the following information is based on concepts recognized by case law.

According to case law, or in other words, court decisions and judgments, the important thing to remember is that “communicate with, and to receive […] services from” means that institutions have an obligation to offer services and communicate in both official languages to meet the linguistic needs of the population.

The obligation to offer includes the obligation to act.This means that the Government’s failure to act violates constitutional rights. Section 20 of the Charter and Part IV of the Official Languages Act defines specific measures concerning services, communications, and active offer.

For more details regarding particular situations where this concept is an issue, please contact a lawyer.

Rights in the official language of my choice

In every province and territory, federal government services and communications must be offered in both official languages under certain conditions. What are these conditions?

There are 4 questions to ask before saying that a federal government service must be offered in both official languages.

Language of my choice

 

Question 1: Is the service provided by a federal institution?

A federal institution is a federal government establishment that is, for example, a department, an organization or an agency. So, how do we know if the requested service is provided by a federal institution?

Here are a few hints that can help you figure out if the service you are requesting is offered by a federal institution:

  • The requested service can be found on a government website whose Internet address ends with “gc.ca”. Example: www.canada.gc.ca.
  • You see the Government of Canada’s symbol (or logo). Example: Canadian flag symbol, the title is written in both official languages, the word “Canada” is accompanied by the Canadian flag, and certain institutions have a coat of arms such as the Office of the Commissioner of Official Languages. 
  • Every federal institution has a web page and is identified on the website of the Government of Canada (see the list of federal institutions that must display the logo of the Government of Canada).
  • The institution can also be a Crown corporation or its subsidiary. For example, the Canadian Broadcasting Corporation (CBC) is a Crown corporation and CBC News Network is a Canadian Broadcasting Corporation subsidiary. So, the Canadian Broadcasting Corporation and the CBC News Network must provide services in both official languages.
  • It is possible that a federal institution may be difficult to identify. In certain cases, consulting a lawyer is the only way to know for sure.

Now you know how to identify a federal institution, but not all federal institution offices must offer services in both official languages. To find out, see question 2.

Question 2: Is the federal institution office located in the national capital (Ottawa and its surroundings)?

  • If so, you have the right to services in both official languages.
  • If not, is this office the headquarters (the office that coordinates federal institution activities)? To find out, you can go on the institution’s website which indicates where the headquarters office is located. You can also check if the words “headquarters” or “head office” are used to describe the office on its signs. The website “Burolis” lists the headquarters of all the institutions. If an office is indeed the headquarters, you have the right to services in both official languages.

Question 3: Is the requested service provided by an institution whose nature dictates the obligation to offer it in both languages?

  • The nature (purpose) of the office can be described as all services needed for public health and safety. For example: emergency services in the Calgary international airport.
  • The office can also be located in a particular place in Canada and must, because of its location, offer services in both official languages. For example: offices located in Canadian national parks.

Quest ion 4: Is there a significant demand for the service I want?

  • A significant demand does not mean that there are a lot of people requesting this service in your neighbourhood or city. On the contrary, the significant demand is based on the number of English-speakers and French-speakers living in a specific region. This number is calculated by Statistics Canada by means of the census data. For example, if census statistics indicate that there is a sufficient number of French-speaking residents in an Anglophone region, services must be offered in French even though Francophone themselves do not ask for it.
  • To find out if an institution provides services in English, visit the “Burolis” website that specifies which offices offer services in both official languages.
How to determine if a federal institution has obligations

Section 20 of the Charter alone does not fully capture the scope of the obligations institutions of Parliament and of the Government of Canada have the duty to ensure in terms of services and communications.

Two tools are available to define the obligations set out in section 20 of the Charter: the Official Languages Act and the Official Languages Regulations.

The Official Languages Regulations specify in which circumstances federal institutions must offer services and communications in both official languages.

Summaries of the Regulations:

For example, Federal government emergency services and telephone numbers beginning with 1-800, because of their nature must offer services in both official languages.

Are the Official Languages Regulations a source of law that cannot be called into question? To find out, complete the following case study on the Regulations:

The Official Languages Act, adopted in 1988, takes Section 20 of the Charter and describes in more practical terms several obligations of the federal institutions and Government regarding services and communications.

To know when the Official Languages Act specifies the enforcement of constitutional language rights, refer to the last column of the following tables summarizing language rights :

Significant demand to obtain the right

Federal institutions must offer services and communications in places where, depending on the situation:

a) There is a significant demand for communications and services in English or French;
b) The nature (purpose) of the office justifies the use of English and French.

The “significant demand” is based upon the number of right-holders (or "ayant droits" in French) and is defined in Part I of the Official Languages Regulations.

The “nature of the office” is defined in Part II of the Official Languages Regulations.

A right-holder is a Francophone or an Anglophone according to the following definition

Definition of an “Anglophone”:

  1. Must know the English language;
  2. Must have English as a mother tongue;
  3. Must speak English at home.

Definition of a “Francophone”:

  1. Must know the French language;
  2. Must have French as a mother tongue;
  3. Must speak French at home.

When all three criteria do not allow the Government to determine the individual’s language, the number of individuals who correspond neither to the Anglophone nor the Francophone definition are equally divided between the English and French population for statistical purposes.

Which federal institutions are subject to obligations in terms of constitutional language rights?

Can you recognize them? Let's see how well you do with these quizzes!

Quizzes Answers
Atlantic Provinces Atlantic Provinces  - Answer Sheet
Quebec Quebec - Answer Sheet
Ontario Ontario - Answer Sheet
Northwestern Canada Northwestern Canada - Answer Sheet

To summarize, section 3 of the Official Languages Act defines federal institutions as:

  • Parliament and Government of Canada institutions;
  • Office, commission, council, etc., responsible for administrative functions under federal law;
  • Federal departments;
  • Government corporations and all their subsidiaries created under federal law.

IMPORTANT: This includes third parties (organizations and other) acting on behalf of a federal institution.

What does “acting on behalf of a federal institution” mean?

Under section 25 of the Official Languages Act, federal institutions must ensure that:

  1. Third parties (people, organizations, associations, etc., other than the Government) that work for them offer services in both official languages, according to section 20 of the Charter;
  2. These third parties do so in Canada as well as abroad.

In the Desrochers case, which went before court from 2005 to 2009 and the Federal Court in 2006, the Federal Court of Appeal established criteria to help determine if a third acting on behalf of a federal institution, and added that other criteria could also apply.

Criteria established by the Federal Court of Appeal in the Desrochers v. Canada, 2006 CAF 374 case are:

  • General control by the Government over the third party offering the services (par. 53 and the following);
  • More than mere financial contribution (par. 54);
  • Obligation to account for funding (par. 57);
  • Departmental control over the way in which the services are provided (par. 62);
  • Minister’s supervisory authority (par. 69);
  • The third party is an integral component of a program established by the Government (par. 70).

This concept of a "third party acting on behalf of a federal institution" is important because, if the third party meets these criteria, you have the right to services and communications in both official languages from this third party.

The terminology “acting on behalf of” can be replaced by “being appointed by.” No matter which terminology is used in a contract signed by the Government and the third party, it is these criteria (like those mentioned earlier) that matter, even if "acting on behalf of" and “being appointed by” are not used in the contract.

For more details regarding particular situations where the third party meets the said criteria, contact a lawyer.

Active offer

Active offer is a proactive linguistic policy to create a favourable environment where clients feel comfortable communicating either in English or in French. 

Bilingual posting, like this image, is ONE element of active offer.

For example, institutions must create an environment leading to the use of French services, with bilingual posters, signs, leaflets, documents, etc., visually offered in English and French. Francais-Anglais

Where there is active offer, Francophones will ask for services in French.

To better understand how the concept of active offer can be applied, complete the following exercise:

Content for this section uses the following references:

 

Specific cases - Services
Quebec

The right to communicate with governments and receive services in both official languages

 

Northwest Territories

The right to communicate with governments and receive services in both official languages

Case funded by the LRSP for alternative dispute resolution (ADR)

This case involves the Fédération franco-ténoise (FFT) and the Government of the Northwest Territories.

The dispute between the FFT and the government concerned:

  • the implementation of the decision of the NWT Supreme Court regarding violations of the NWT Ofiicial Languages Act and
  • the obligations arising out of the decision of the Supreme Court of Canada in the Desrochers case.

Result:

  • Meetings allowed a strategic implementation plan to be drawn up by setting out the essential legal notions required to define the objectives of the NWT Official Languages Act, together with the tasks of the government and its obligations to consult the community it serves. The meetings made it possible, in particular, to explain the context and the possibility of determining service criteria in the field of health.
  • The ADR procedures led to a change in the government’s strategic plan on French-language communications and services as initially drafted and allowed a second phase to be added to the process, that of implementing the strategic plan.

Language rights in the NWT

Table summarizing language rights in the NWT

How to determine if a federal institution in the NWT has linguistic obligations

The following diagrams can help determine if a federal institution in the Northwest Territories has the obligation to actively offer communications and services in both official languages, as stated by the Official Languages Regulations:

Useful links

Ontario

The right to communicate with governments and receive services in both official languages

Case funded by the LRSP for legal remedy

This case involves the Comité SOS CBEF and the CBC.

The dispute between the Comité SOS CBEF and the CBC concerned:

  • Paragraphs 16(1) and 20(1) of the Canadian Charter of Rights and Freedoms, and
  • The shutting down of the French-language programming at the CBC’s CBEF station in Windsor (Ontario) which, the Comité claimed, harmed the development of the Francophone community of Windsor and Southwestern Ontario

Decision:

  • The Superior Court of Justice rejected the application on the grounds that the Broadcasting Act laid down a complete code and that the appropriate recourse was to bring the matter before the Canadian Radio-television and Telecommunications Commission (CRTC).

*Funding from the LRSP was limited to the trial.

What happened afterward?

Following the decision of the Superior Court of Justice, the Office of the Commissioner of Official Languages of Canada filed suit against Radio-Canada in the Federal Court of Canada. The Federal Court found that the Canadian Radio-Television and Telecommunications Commission (CRTC) had concurrent power. As a result, the Court awaited the CRTC’s decision before setting the date of a hearing for the Office of the Commissioner’s application against Radio-Canada.

In spring 2013, the CRTC rendered its decision regarding Radio-Canada’s licensing obligations. Radio-Canada is now obliged to maintain French-language programming in the Windsor region. 

Related information:

Judiciary

Definitions - Laws - Judiciary

Your right is enshrined in the Canadian Charter of Rights and Freedoms (Charter), the Constitution Act of 1867 and the Manitoba Act of 1870.

What is a judicial right?

A judicial right is one that pertains to activities in connection with trials.

The trial may be administrative, judicial or quasi-judicial (meaning that it is both administrative and judicial) in nature. Some rights may apply to all types of courts while others may apply only to judicial courts. 

Constitutional language rights in the judiciary field are written in:

  • Section 133 of the Constitution Act of 1867
  • Section 23 of the Manitoba Act of 1870
  • Section 19 of the Canadian Charter of Rights and Freedoms.

What constitutional documents guarantee judicial rights?

In 1867, Canada was created by the British North America Act, now known as the Constitution Act, 1867. Section 133 of this act guarantees rights in the legislative and judicial areas to Canadian citizens and inhabitants of Québec.

In 1870, the Manitoba Act gave legal status to the province of that name and guaranteed legislative and judicial language rights to its inhabitants.

Then, in 1982, the adoption of the Canadian Charter of Rights and Freedoms guaranteed a number of language rights to the Canadian public, to Canadian citizens as well as to official language communities as stated in Sections 16 to 23 of the Charter. Furthermore, the Charter guarantees constitutional language rights to New Brunswick inhabitants and official language communities in these four areas: legislative, judicial, education and communications and services

For more information, see this table on judicial rights.

Government obligations - Judiciary

Sharing of powers

The sharing of powers  is established by sections 91 to 101 of the Constitution Act, 1867. These sections explain the fields in which the federal government and provincial governments can legislate.

Areas in which the provinces have exclusive powers include the following:

  • provincial prisons;
  • municipalities;
  • the celebration of marriages;
  • property and civil rights;
  • the administration of civil and criminal justice. 

Areas in which the federal government has exclusive powers include the following:

  • copyright;
  • patents;
  • banks;
  • bankruptcy;
  • divorce;
  • employment insurance;
  • criminal justice, where proceedings are governed by criminal law. 

Table summarizing the fields of jurisdiction of the federal government and provincial governments:

Conpetency

 

Language and the sharing of powers

Language is not listed in the sharing of powers set out in the Canadian Constitution. It is “accessory” to the powers of the Parliament and the legislatures set out in sections 91 to 101 of the Constitution Act, 1867. This means that each government can pass laws in its fields of jurisdiction that include provisions on the use of languages, as long as that the obligations set out in the Canadian Constitution are complied with.

The Northwest Territories, Yukon and Nunavut have legislative power that was given to them by the federal government when they were created. The enabling act of each territory states their powers. As a general rule, their powers are similar to those of the provinces, but are not enshrined in the Canadian Constitution.

The language obligations of the territories are set out in the law that created them and are similar to those of the federal government.

  • Northwest Territories: The Northwest Territories initially made up a major part of the Canadian territory. The area of the Northwest Territories was reduced with the creation of the provinces, particularly of Alberta and Saskatchewan in 1905, under the North-west Territories Amendment Act, Statutes of Canada 1905 (v. I-II), c. 27, p. 161-163.
  • Yukon: Canada enacted the Yukon Territory Act in 1898, which designated Yukon as an independent territory with Dawson as its capital. The purpose of the act was to create an administrative body for the entire Yukon territory. Its full title is An Act to provide for the Government of the Yukon District (short title: The Yukon Territory Act), Statutes of Canada 1898 (v. I-II), c. 6, p. 55 -61.
  • Nunavut: The Nunavut Land Claims Agreement Act, which ratified the agreement, and the Nunavut Act, which created the new territory, were both passed on June 10, 1993.

In some cases, powers may be shared: the federal government has the power to adopt a law in a particular field, but the law is administered by the province.

For example, the federal government has exclusive power to amend the Criminal Code and criminal procedures. However, because of their exclusive power to administer justice, the provinces enforce the Criminal Code and criminal procedures during trials. The federal government is then said to have delegated its obligations to the provinces.

Note: Unlike obligations in the areas of education and of communications and services, there is no criterion for the definition of a rights holder in the legislative and judicial areas. This means that rights in these areas are applicable to everybody without any restrictions or conditions.

To find out more on the sharing of powers:

Competency plus

 

The Canadian Constitution includes legislative and judicial rights. These rights are found in:

  • section 133 of the Constitution Act, 1867;
  • sections 2, 17, 18 and 19 of the Charter;
  • section 23 of the Manitoba Act, 1870.

The rights set out in these sections are part of Canadian constitutional language rights.

Obligations and authority regarding constitutional language rights are shared between the federal government and provincial governments in accordance with their fields of jurisdiction: this is known as the “sharing of powers.”

For example, the federal government has the authority or jurisdiction to act in matters arising out of federal laws such as:

These federal laws impose obligations regarding constitutional language rights on Parliament (legislative rights) and federal courts (judicial rights).

Provincial governments have authority or jurisdiction to act, for example, in matters relating to:

  • provincial courts
  • provincial legislatures.

The provinces, then, also have obligations regarding constitutional language rights in connection with provincial courts (judicial rights) and provincial legislatures (legislative rights).

RED ARROW: When a province administers a federal law, obligations regarding constitutional language rights do not disappear; the province is therefore required to comply with the obligations contained in the federal law.

Legislative

Definitions - Laws - Legislative

Your right is enshrined in the Canadian Charter of Rights and Freedoms (Charter), the Constitution Act of 1867 and the Manitoba Act of 1870.

What is a legislative right?

A legislative right is one that pertains to activities related to lawmaking, such as debates in Parliament and legislative assemblies, minutes of proceedings, newspapers, the texts of laws and the drafting of laws.

Constitutional language rights in the legislative field are written in:

What is the Canadian Constitution?

The Canadian Constitution is the supreme law of Canada. All laws passed by the federal government, the provinces and the territories must respect the obligations and powers that the Constitution confers on them. Unlike many countries that have a single constitutional document, such as the United States, Canada has a constitution made up of a number of written and unwritten elements.

The unwritten elements are principles confirmed by decisions of the Supreme Court of Canada. For example, the unwritten principle of the protection of minorities, set out in the Reference re Secession of Quebec, is a legal process that answered questions of rights arising out of the possible secession of Québec.

What effect do unwritten principles have?

Unwritten principles influence the interpretation of legal documents that may affect language rights. This means that the effect of a legal document on minorities must be taken into account in determining its meaning and scope.

Unwritten principles are constitutional principles expressed by the Supreme Court of Canada and implied in written constitutional documents.

Written and unwritten elements are said to be constitutional. Chief among the written elements are the following documents:

  • the Constitution Act, 1867 
  • the Manitoba Act, 1870 
  • the Canadian Charter of Rights and Freedoms
  • treaties

Note: For a treaty to be considered a constitutional document, it must be recognized and confirmed. See section 35 of the Charter on this subject. For example, the Supreme Court of Canada has the power to recognize and confirm a treaty.

The Constitution Act, 1867, formerly known as the British North America Act, is one of the written elements of the Constitution. Constitutional documents set out the powers, rights, and obligations of individuals and governments. Some sections of these documents set out constitutional language rights that the federal government and the provincial and territorial governments must respect in their respective fields of jurisdiction. This means that not all governments have the same obligations.

The constitutional obligations of governments with respect to official languages essentially deal with rights in four areas:

  • legislation; 
  • justice; 
  • communications and services; and
  • education.

What constitutional documents guarantee rights in the judicial area?

In 1867, Canada was created by the British North America Act, now known as the Constitution Act, 1867. Section 133 of this act guarantees rights in the legislative and judicial areas to Canadian citizens and inhabitants of Québec.

In 1870, the Manitoba Act gave legal status to the province of that name and guaranteed legislative and judicial language rights to its inhabitants.

Then, in 1982, the adoption of the Canadian Charter of Rights and Freedoms guaranteed a number of language rights to the Canadian public, to Canadian citizens as well as to official language communities as stated in Sections 16 to 23 of the Charter. Furthermore, the Charter guarantees constitutional language rights to New Brunswick inhabitants and official language communities in these four areas: legislative, judicial, education and communications and services

Government obligations - Legislative

Sharing of powers

The SHARING OF POWERS is established by sections 91 to 101 of the Constitution Act, 1867. These sections explain the fields in which the federal government and provincial governments can legislate.

Areas in which the provinces have exclusive powers include the following:

  • provincial prisons;
  • municipalities;
  • the celebration of marriages;
  • property and civil rights;
  • the administration of civil and criminal justice. 

Areas in which the federal government has exclusive powers include the following:

  • copyright;
  • patents;
  • banks;
  • bankruptcy;
  • divorce;
  • employment insurance;
  • criminal justice, where proceedings are governed by criminal law. 

Table summarizing the fields of jurisdiction of the federal government and provincial governments:

Sharing power - Legislative

 

Language and the sharing of powers

Language is not listed in the sharing of powers set out in the Canadian Constitution. It is “accessory” to the powers of the Parliament and the legislatures set out in sections 91 to 101 of the Constitution Act, 1867. This means that each government can pass laws in its fields of jurisdiction that include provisions on the use of languages, as long as that the obligations set out in the Canadian Constitution are complied with.

The Northwest Territories, Yukon and Nunavut have legislative power that was given to them by the federal government when they were created. The enabling act of each territory states their powers. As a general rule, their powers are similar to those of the provinces, but are not enshrined in the Canadian Constitution.

The language obligations of the territories are set out in the law that created them and are similar to those of the federal government.

  • Northwest Territories: The Northwest Territories initially made up a major part of the Canadian territory. The area of the Northwest Territories was reduced with the creation of the provinces, particularly of Alberta and Saskatchewan in 1905, under the North-west Territories Amendment Act, Statutes of Canada 1905 (v. I-II), c. 27, p. 161-163.
  • Yukon: Canada enacted the Yukon Territory Act in 1898, which designated Yukon as an independent territory with Dawson as its capital. The purpose of the act was to create an administrative body for the entire Yukon territory. Its full title is An Act to provide for the Government of the Yukon District (short title: The Yukon Territory Act), Statutes of Canada 1898 (v. I-II), c. 6, p. 55 -61.
  • Nunavut: The Nunavut Land Claims Agreement Act, which ratified the agreement, and the Nunavut Act, which created the new territory, were both passed on June 10, 1993.

For more information on this subject, see the table of legislative rights.

In some cases, powers may be shared: the federal government has the power to adopt a law in a particular field, but the law is administered by the province.

For example, the federal government has exclusive power to amend the Criminal Code and criminal procedures. However, because of their exclusive power to administer justice, the provinces enforce the Criminal Code and criminal procedures during trials. The federal government is then said to have delegated its obligations to the provinces.

Note: Unlike obligations in the areas of education and of communications and services, there is no criterion for the definition of a right holder in the legislative and judicial areas. This means that rights in these areas are applicable to everybody without any restrictions or conditions.

Which governments have obligations concerning constitutional language rights in the legislative area?

All governments must respect freedom of expression in accordance with section 2b of the Canadian Charter of Rights and Freedoms (Charter). This means that all federal members of Parliament and members of provincial and territorial legislative assemblies have the right to speak in either official language during debates.

Note: To date, jurisprudence has not specified that members of Parliament and members of legislative assemblies must be included.

The provinces of Quebec, Manitoba and New Brunswick have specific additional obligations regarding freedom of expression. Like the federal government, these three provinces have an obligation to write laws, policies and regulations in both official languages. They are also obliged to provide an interpreting service to members of their legislative assemblies to enable them to speak in the official language of their choice during debates and to ensure that they are understood by other members.

To find out more on the sharing of powers:

Sharing power - Legislative - plus

 

The Canadian Constitution includes legislative and judicial rights. These rights are found in:

  • section 133 of the Constitution Act, 1867;
  • sections 2, 17, 18 and 19 of the Charter;
  • section 23 of the Manitoba Act, 1870.

The rights set out in these sections are part of Canadian constitutional language rights.

Obligations and authority regarding constitutional language rights are shared between the federal government and provincial governments in accordance with their fields of jurisdiction: this is known as the “sharing of powers.”

For example, the federal government has the authority or jurisdiction to act in matters arising out of federal laws such as:

These federal laws impose obligations regarding constitutional language rights on Parliament (legislative rights) and federal courts (judicial rights).

Provincial governments have authority or jurisdiction to act, for example, in matters relating to:

  • provincial courts
  • provincial legislatures.

The provinces, then, also have obligations regarding constitutional language rights in connection with provincial courts (judicial rights) and provincial legislatures (legislative rights).

RED ARROW: When a province administers a federal law, obligations regarding constitutional language rights do not disappear; the province is therefore required to comply with the obligations contained in the federal law.

Specific cases - Legislative
Alberta

The right to use both official languages in Parliament and the legislatures

Case funded by the LRSP for an intervention

This case involved Gilles Caron and the Government of Alberta over a traffic ticket that was issued to Mr. Caron, a Francophone, in English only.

Funding was granted to the Association canadienne-française de l’Alberta (ACFA) to intervene in the case before the Court of Queen's Bench and the Court of Appeal of Alberta.

The dispute relating to language rights between Mr. Caron and the Albertan government concerned:

The lawyers in this case argued that Mr. Caron’s constitutional language rights had not been respected when he received a traffic ticket written only in English and that their client had a right to a trial in French in Alberta.

The ACFA intervened in this case on the grounds that cost orders were well founded in a case involving minority official language communities in Alberta and elsewhere in Canada, which had never been done before. Its argument was based on the principles of interpretation arising out of constitutional language rights, in particular section 16 of the Charter

Decision in regards to the intervention:

Mr. Caron was involved in a trial against the Government of Alberta and obtained an order for the Crown to pay his defense fees. This was the first time that such an order was granted before the end of a trial on a matter of constitutional language rights.“Mr. Caron — having run out of money — established to the satisfaction of the provincial court that he was unable to finance the rebuttal evidence necessary to complete the trial unless he were provided with interim costs”, stated the Honorable Justice Binnie in his decision.

Other questions addressed to the court:

Another aspect that was debated during this case was whether or not the laws guaranteeing the use of English and French that were enacted for the territory known as Rupert’s Land in the mid-19th century, which encompassed parts of Western Quebec all the way to Alberta and up to the Northwest Territories, are still valid today.

If the court were to find that these laws are still valid today, then Alberta’s laws would have to be written and published in both official languages. It would also mean that citizens would have the right to a trial in the official language of their choice, which would include speaking that language and being understood by the judge.

History of language rights in Alberta

What is the history of the French-speaking population of Alberta?

Alberta originally formed part of a huge territory ceded to the Hudson’s Bay Company in 1670. Over the course of the succeeding two centuries, Aboriginal peoples, fur traders and missionaries settled there.

According to censuses mentioned on the Statistics Canada website, the Assiniboia region had a population of 2,390 in 1831 and 3,649 in 1835.

What is Rupert’s Land?

*The following information is taken from L’aménagement linguistique dans le monde (website in French only).

In 1867, Rupert’s Land was still part of the territories administered by the Hudson’s Bay Company. It included part of western Quebec, the greater part of northwest Ontario, all of Manitoba, almost all of Saskatchewan and Alberta, and the eastern part of the Northwest Territories. Rupert’s Land stretched from Alaska to Labrador and covered an estimated surface area of 7.2 million square kilometres – 79 % of the current area of Canada.

French and English were the official languages of the government of the time, known as the Council of Assiniboia (Red River Colony). They were also used in the General Court, the court of justice of the period. Laws were drafted in both official languages. In 1838, proficiency in French was a requirement for all positions related to judicial activity. In 1852 and 1863 the Council of Assiniboia enacted laws in English and in French.

When the government of the time was party to a suit brought before the court, the government’s representative was instructed to address the court in both official languages, that is, in French and in English, when Canadian or Métis interests were involved in the suit. In a trial where both parties were Francophone, the proceedings were normally conducted in French, and members of the jury were all Francophone. 

When the parties were Anglophone and Francophone, the trial was bilingual. Bilingual trials were conducted in both languages, with the services of interpreters, and half of the members of the jury were Francophone, the other half Anglophone. It could be said that Rupert’s Land was a “bilingual country” to the greater satisfaction of all its inhabitants.

According to Archives Canada, at the end of the 18th Century, two rival companies were operating in the area: the Hudson’s Bay Company and the North West Company. The former belonged to British interests and the latter to Canadian interests in Montreal. In 1821, the Hudson’s Bay Company and the North West Company merged, keeping the name Hudson’s Bay Company.

On November 19, 1869, the Government of Canada acquired the Northwest Territories and all the territories belonging to the Hudson’s Bay Company, commonly known as Rupert’s Land.

In 1870, the region between the province of Manitoba and the Canadian Rocky Mountains was organized as a territory and was thenceforth known as the Northwest Territories. The arrival of the railway in the mid-1880s opened up this territory to massive settlement. Alberta became a province on September 1, 1905.

The Alberta School Act, enacted in 1905, designated English as the sole language of instruction.

In language matters, the Alberta government was unwilling to enforce the provisions of the Northwest Territories Actproviding for the optional use of French and English in the Legislative Assembly, in the texts of laws, and in court. This Act also made the use of English and French mandatory in the writing of court decisions, laws, minutes and the archives of the Legislative Assembly of the Northwest Territories.

In 1969, the Alberta government amended the Alberta School Act to allow the use of French in bilingual schools from Grade 1 through to Grade 12.

How did the Francophone population mobilize?

In the early 1980s, Franco-Albertans began to demand rights in the judicial, education and legislative domains. For more information on these demands, visit L’aménagement linguistiquedans le monde (site in French only).

With the adoption of the Canadian Charter of Rights and Freedoms in 1982, and more particularly section 23 of the Charter, Francophones finally obtained a guarantee of their right to education in the minority language. Provincial education law must respect the rights set out in section 23 of the Charter.

Have there been new developments regarding the rights of Franco-Albertans?

Yes, the recent Caron case made the headlines in Canada.

In the Caron case, Mr. Caron asked the Court of Appeal of Alberta to recognize the validity of the Royal Proclamation that would oblige the Alberta government to pass its laws and regulations in both official languages.

Language rights in Alberta

Case study

The following case study is meant to help you apply the principles discussed in this section and in the Legislative section of our website.

Useful links 

Education

Definitions - Laws - Education

Your right is enshrined in Section 23 of the Canadian Charter of Rights and Freedoms (Charter).

In many cases, decisions of the courts relative to Section 23 have established:

  • the right to have children receive primary and secondary school instruction in the language of the linguistic minority wherever the number of children warrants, and
  • management rights, in other words, the right to handle the linguistic and cultural aspects of instruction and establishments.

A right holder is a parent who satisfies the criteria listed in Section 23 and has the right to instruction in the minority language for all his or her children.

Management rights have led to the creation of official language minority school boards all over Canada.

Section 23 of the Charter is considered one of the most important provisions for the development of official language communities.

The right to instruction in your area

Each Canadian province and territory grants the right to instruction for the official language minority. However, the extent and application of this right varies across Canada.

Alberta
Overview of the right to instruction

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)

Alberta

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.

British Columbia
Overview of the right to instruction

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

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))

British Columbia

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.

Manitoba
Overview of the right to instruction

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

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)

Manitoba

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.

New Brunswick
Overview of the right to instruction

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

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)

New Brunswick

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.

Newfoundland and Labrador
Overview of the right to instruction

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

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)

Newfoundland and Labrador

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.

Northwest Territories
Overview of the right to instruction

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

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)

Northwest Territories

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 9th, 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. 

Nova Scotia
Overview of the right to instruction

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

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))

Nova Scotia

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.

Nunavut
Overview of the right to instruction

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

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)

Nunavut

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. 

Ontario
Overview of the right to instruction

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

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)

Ontario

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.

Prince Edward Island
Overview of the right to instruction

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

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))

Prince Edward Island

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 1st, 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.

Quebec
Overview of the right to instruction

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

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)

Quebec

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.

Saskatchewan
Overview of the right to instruction

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

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)

Saskatchewan

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.

Yukon
Overview of the right to instruction

Management

The school board of education area #23 has jurisdiction over and administers French-language instruction in the Yukon. (French Language Instruction Regulation, section 10) 

Summary of the law

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)

Yukon

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.

Specific cases - Education
Prince Edward Island

The Arsenault-Cameron case

*This case was not funded by the LRSP, as the LRSP did not exist at the time it unfolded.

In this case, the Supreme Court had to determine if the right to instruction in the official language of the minority includes the right to an educational institution located in the same area where the number of right-holders reside. The Court also had to determine if the Minister of Education had the authority to approve decisions made by the French-language school board.

The dispute between Ms. Cameron-Arsenault and the government of PEI concerned:

Decision:

According to section 23 of the Charter, the French-language school board has management control. This means that the school board has the obligation to offer instruction in French where the number of right-holders justifies it and to determine the location of the required schools.

Summary of the case

Arsenault‑Cameron v. Prince Edward Island, [2000] 1 SCR 3

In this case, the Supreme Court had to determine whether the right to education in the minority language guaranteed by section 23 of the Canadian Charter of Rights and Freedoms (the Charter) includes the right to a school located in the region where right-holders live and the number of right-holders justifies the establishment of a school. It also had to determine whether the Minister of Education had the power to approve the decisions of the French School Board, which are described below. In other words, did the School Act and its regulations contravene section 23 of the Charter?

Facts:

A number of parents asked the French School Board to create a French school for grades 1 to 6 in the Summerside area for the 1995-96 school year.

Finding that the number of eligible children met the requirements set out in the School Act Regulations, the Board decided to offer French first-language instruction at Summerside provided that it was approved by the Minister of Education. 

The Minister of Education refused to approve the Board’s decision to offer French instruction in Summerside. He proposed instead to maintain transportation services to enable francophone pupils to attend the French school in Abram’s Village. The average bus ride from the Summerside area to the school was 57 minutes.

The parents responded to the government’s refusal to approve the Board’s offer by requesting the Court to declare that they had the right to have their children receive French first-language instruction at the primary level in a school situated in Summerside.

In the first instance, the Prince Edward Island Supreme Court granted their request, but the Appeal Court set aside the judgment and reinstated the Minister’s decision.

Decision of the Supreme Court of Canada:

Applicable principles

The Supreme Court of Canada pointed out that section 23 of the Charter was to be interpreted as a remedial provision in order to guarantee the promotion and preservation of the minority language community (on this, see the history of Prince Edward Island). It stated that section 23 requires the application of substantive equality, which means that official-language minorities must be treated differently, if necessary, taking into account their particular circumstances and needs, in order to provide a standard of education equivalent to that of the official-language majority.

Hence, owing to the variety of circumstances encountered in different schools and the demands of a minority-language education, it was necessary to determine the appropriate educational services for the number of pupils concerned and examine the costs of the contemplated service. Educational services provided to the minority do not have to be identical to those provided to the majority.

Conclusions of the Supreme Court of Canada

The Court stated that a school is the single most important institution for the survival of the official-language minority community, which is itself a true beneficiary under section 23 of the Charter.

The Supreme Court concluded that when a minority-language school board is created, it must respect the minority’s management and control rights and enforce provincial educational standards and directives. Thus, under section 23 of the Charter, the French School Board has the power of management and control. This means that the Board has an obligation to offer French-language instruction where numbers warrant and to determine the location of the required classes or schools.

The Court added that the remedial and protective character of section 23 requires that assessment of whether a school is needed must be based on the potential number of right-holders, and not on the current number of applications for admission. In addition, the Court stated that the decision regarding the construction of a school in Summerside should also take into account the fact that children had to make a choice. The choice was to attend a local school offering instruction in the majority language or to attend a less accessible school offering instruction in the minority language – a choice which would have an impact on the assimilation of minority-language children.

The Supreme Court concluded that the Minister’s decision not to offer educational services in Summerside was unconstitutional. Why? Because the provision of classes or of a school came within the exclusive right of management of the minority, which must be exercised by right-holders represented by the French School Board.

Language rights in PEI

History of language rights in PEI

What is the distinction between the terms “Francophone” and “Acadian”?

Note: the term “Francophone population” includes the Acadian population.

An Acadian is Francophone, but a Francophone is not necessarily an Acadian. The distinction is based on the person’s origins.

According to the 2011 census, which can be consulted on the Statistics Canada website, the number of Francophones living on Prince Edward Island is currently close to 5,000 (according to the definition provided in the Official Language Regulation). The number of Francophones identified is affected by the definition given to the word “Francophone.” For example: is someone who speaks French a Francophone?

What is the history of the Francophone population of PEI?

*All the facts and figures given in the following paragraphs are taken from Statistics Canada.

The history of the Acadian population is marked by turbulent events whose effects are still felt today.

In 1752, 2,000 people made up the Anglophone and German population of Prince Edward Island, and there were 2,663 Francophones in 1753. From September to December 1755, 6,000 Acadians from the Peninsula were deported to the United States.

The expropriation of the Acadians of Prince Edward Island, which took place from 1758 to 1765, reduced the majority Francophone population from 6,500 to about 1,400 persons. The expropriated Francophone population largely moved to the other Maritime Provinces. From about 1771, Acadians began to live more at ease and their numbers increased by approximately 2.5% per year.

Was there ever a policy of assimilation?

According to the L’aménagementlinguistiquedans le monde, in addition to deportation and expropriation, the Francophone population diminished as the result of a policy of assimilation that was adopted during the years following Prince Edward Island’s entry into the Confederation as the seventh province on July 1, 1873. Indeed, shortly after the creation of the province, the provincial government passed a law prohibiting French schools. 

What became of the rights of Francophones and Acadians?

Francophones mobilized in response to this policy of assimilation. After complaints and public demands from Francophones, the government agreed to the creation of bilingual schools.

L’Association des instituteursAcadiens de l’Île was created in 1893 for the purpose of encouraging the teaching of French in public schools. La Société Saint-Thomas-d’Aquin (SSTA) was founded in 1919 with the objective of providing services and relevant programs meeting the cultural needs of the Acadian community. Today the SSTA comprises 17 local, regional and provincial associations.

With the adoption of the Canadian Charter of Rights and Freedoms (Charter) in 1982, and more particularly section 23 of the Charter, Francophones finally obtained a guarantee of their right to education in the minority language. Provincial education law must respect the rights set out in section 23 of the Charter.

Have there been new developments regarding the rights of Francophones and Acadians?

Yes. The French Language Services Act was enacted by the Prince Edward Island government on December 14, 2013. This law and its implementing regulations are designed to guarantee the provision of services and communications in French in connection with provincial services that are officially designated as bilingual. The act enables the public to file complaints when the act is not respected.

Is this a constitutional law?

No, because in order to be constitutional, a law must “be part” of the Canadian Constitution.

Related information

Arsenault-Cameron v. Prince Edward Island 

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