B.C. infringed s. 23 rights, Supreme Court rules

The province of British Columbia’s denial of requested funding to a francophone school board infringed s. 23 minority language rights and was not saved by section 1 of the Charter, the Supreme Court of Canada has ruled in a decision released today.

The court rejected the approach of the lower courts in the case, which was based more on a proportionality test than on that of substantive equivalence to the majority.

“This is perhaps the biggest win under s. 23 of the Charter since it came into force in 1982,” Mark Power, counsel for the appellants, told Canadian Lawyer. “This is a really, really big day for minority language rights. It’s the case.”

In a 7/2 decision in Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, the court found that where the number of students was not comparable to the numbers of majority language students in a province, they must nonetheless have “substantive equivalence” in schooling, meaning control of instruction and facilities to access that are of “sufficient quality” and equivalent to what majority language students have.

“This judgment alters the differential in power between minority language school boards on the one hand, and ministries of education on the other,” says Power, of Juristes Power in Vancouver, “and should lead to productive, more fruitful discussions, and to concrete results.”

The court awarded British Columbia’s only French-language school board $6 million for underfunded transportation, $1.1 million for a denied annual facilities grant, and costs throughout. It also found that the French-language school board was entitled to eight homogeneous schools that had been denied by the courts below.

“There still needs to be differential treatment,” Power says, based on size; “if there are fewer kids in a school the school will be smaller. But the school needs to be able to offer the same result. Kids graduating from [a minority-language] elementary or high school need to be just as functioning, just as able to contribute to society.”

The appellants in the case – the Conseil scolaire francophone de la Colombie‑Britannique, the Fédération des parents francophones de Colombie‑Britannique, and three parents who are rights holders – alleged that British Columbia had infringed the minority language educational rights guaranteed by s. 23  of the Charter by underfunding the French-language education system. The appellants claimed that the school board had not received an annual grant for school maintenance and funding, nor funding for improvements of existing schools. The province maintained it could not provide all the services the school board requested, at a cost of over $300 million, and that there were an insufficient number of children to justify the expense.

At trial the appellants were partially successful. The judge declared that some of the province’s administrative procedures for funding minority language education unjustifiably infringed the rights protected by s. 23  of the Charter. She also awarded damages for a  Charter breach based on B.C.’s failure to adequately fund the transportation program for a period of 10 years.

But although she found with respect to several communities that the children of rights holders were entitled to facilities offering substantive equivalence to those of the majority, she drew the opposite conclusion for communities with smaller numbers of children of rights holders.

The appellants’ appeal was dismissed, the province’s cross appeal was allowed, and the damages awarded were set aside.

“In my view, the courts below erred in ruling that ‘the fair and rational allocation of limited public funds’ is a pressing and substantial objective in the case at bar,” wrote Chief Justice Richard Wagner for the majority in today’s decision.

“Public funds are limited by definition,” he wrote. “Every government allocates its funds among its various programs on the basis of certain scales, and as fairly as possible. If merely adding the words ‘fair and rational’ to the word ‘allocation’ sufficed to transform the allocation of public funds into a pressing and substantial objective, it would be disconcertingly easy for any government to intrude on fundamental rights. I cannot accept such a result.”

In conducting the analysis under s. 23, a court must bear in mind that the section has three purposes – preventive, remedial, and unifying in nature – which are “intended not only to prevent the erosion of official language communities, but also to redress past injustices and promote the development of those communities,” Chief Justice Wagner wrote. The unifying purpose is to allow citizens to “move anywhere in the country without fearing that they will have to abandon their language and culture.”

S. 23 is a Charter provision “whose infringement is especially difficult to justify,” the court noted, since i) the framers of the Charter imposed positive obligations on provincial and territorial governments regarding minority language instruction that were intended to avoid the likelihood of assimilation and loss of rights; ii) s. 23 is not subject to the notwithstanding clause in s. 33 of the Charter, reflecting “the importance attached to this right by the framers of the Charter as well as their intention that intrusions on it be strictly circumscribed”; and iii) s. 23 has an internal limit, the ‘numbers warrant’ requirement, according to which the exercise of the right for which the section provides will be warranted if there are a sufficient number of students.

The court also outlined the three steps to take in order to situate a given number of students on the “sliding scale” that determines the level of services to which an official language minority is entitled. A homogenous school, meaning a separate facility under the control of the official language majority, is warranted where such a school is available to a comparable number of majority language students, and so the first step will determine the number of students expected to attend the school.

At the second step, the court determines whether the school being contemplated is appropriate from the standpoint of pedagogy and cost; here, the burden is on the claimants from the official language minority to identify comparator schools.

Finally, the level of services to be provided to the official language minority is determined, with higher numbers of students receiving higher levels of school services: for example, homogenous minority language schools as compared to a few hours of classes elsewhere in one’s own language.

Justices Russell Brown and Malcolm Rowe dissented in part, disagreeing that immunity from Charter damages did not extend to government policies, as well as with the chief justice’s “use of a province‑wide presumption of pedagogical and cost appropriateness in the ‘numbers warrant’ analysis.”

Today’s ruling will apply to school boards across Canada, including in Quebec. In that province, says Power, “there are fewer categories of kids entitled to English-language education in Quebec than there are categories of kids entitled to French-language education outside of Quebec. … The s. 1 discussion, this restrictive approach as to how to justify breaches of Section 23, … that will, beginning today, serve to reassure, I think, to some extent, Quebec’s anglophones as well.”

In a statement sent to Canadian Lawyer, the British Columbia Ministry of Education said that it respected the high court’s “direction and guidance on minority language education rights,” and would “continue to work with the francophone community in B.C. to ensure minority language education rights are respected.”