A Sliding Scale: Minority Language Educational Rights Upheld in Conseil scolaire francophone de la Colombie-Britannique v British Columbia
In June 2020, the Supreme Court of Canada (“the Court”) released a groundbreaking judgment in support of minority language rights. By adopting a broader interpretation of section 23 of the Charter, which guarantees educational rights to English and French linguistic minority populations across Canada, the Court unequivocally affirms that minority language students must receive educational services of “substantive equivalence” to the quality of schooling offered to majority language students. As section 23 cases are only intermittently heard at the Supreme Court level, the Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42 (“Conseil”) decision provides ample guidance to future litigants and fills in legislative gaps to fulfill the remedial purpose of minority language rights enshrined in the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11) (“the Charter”).
Minority Language Rights in Canada: A Historical Overview
The protection of minority language rights within Canada’s constitutional landscape is intrinsically linked to the country’s historical and social context. When Confederation was initially proposed as an initiative to pursue federal union, 32 delegates met at the Quebec Conference in 1864 to discuss the implications of the proposed federal structure. During these negotiations, the protection of minority education rights was a significant concern due to perceived threats of language assimilation (Reference re Secession of Quebec, 2 SCR 217, para 79). To address these concerns about the protection of French culture, French was declared an official language of Canada, while jurisdiction over education was allocated to the provinces (Constitution Act, 1867, s 133). As such, the constitutional principle of minority language rights is largely a product of historical and political compromises, and the culmination of co-existence and struggle between the English and French populations (Reference re Manitoba Language Rights,  1 SCR 721, 731).
These issues continued to challenge courts and legislatures in the 20th century, with various attempts to reconcile diversity with unity. Prime Minister Pierre Trudeau, a strong proponent of federalism, supported the Official Languages Act, RSC 1985 c 31, which afforded equal status to English and French in all federal institutions and educational settings. Overall, this statute is recognized as the legislative cornerstone of Canada’s linguistic duality and commitment to equality (see Hudon).
Canada’s bilingualism was later entrenched in the Canadian Charter of Rights and Freedoms, which consolidated equality and language rights to ensure the protection of each language in provinces where it is not spoken by the majority (Mahe v Alberta,  1 SCR 342 [Mahe]). While section 16 of the Charter establishes French and English as the official languages of Canada, section 23 confirms minority language educational rights for English-speaking children in Quebec and French-speaking children in the rest of Canada, where numbers warrant.
Specifically, three categories of Canadian parents (“section 23 rights holders”) are entitled to have their children educated in the official language minority of the province in which they reside: (1) parents whose mother tongue is that of the English or French linguistic minority population (para 23(1)(a)); (2) parents who received their primary school instruction in the official minority language (para 23(1)(b)); and (3) parents whose child has received or is receiving primary or secondary instruction in the official minority language (para 23(2)).
Ultimately, the constitutional protection of minority language rights seeks to enhance Canada’s bilingualism and maintain an equal partnership between English and French language groups. Not only does this protection aim to prevent the erosion of official language communities, it also seeks to redress past injustices, and is thus remedial in nature. As such, Canadian courts serve a crucial role in ensuring the effectiveness of constitutional minority language rights protections.
Since the advent of the Charter, the Supreme Court has interpreted section 23 of the Charter several times to solidify constitutional principles, clarify procedural mechanisms and enforce minority language rights across the country. The Conseil case provides further guidance for section 23 litigants and affirms that the standard for justifying a breach of minority language rights is a stringent one. The following sections will analyze the case in detail and assess its future implications.
The appellants, Conseil scolaire francophone de la Colombie-Britannique (“CSF”), the Fédération des parents francophones de Colombie-Britannique, and three parents who are rights holders under section 23 of the Charter, brought forward a claim against the province of British Columbia, alleging that the province’s educational funding scheme penalized the French language minority of the province and infringed its section 23 rights. Specifically, the appellants asserted that they lacked funding for building maintenance, school transportation and cultural activities. The central issues were whether the appellant’s section 23 rights were infringed and, if so, whether the alleged infringement was reasonably justified as per section 1 of the Charter.
At trial, the judge adopted the “sliding scale” approach established in Mahe. At the low end, where numbers warrant, section 23 rights holders are entitled to have their children receive instruction in the language of the official language minority. The extent to which the minority exercises control over the level of services increases with the number of children of rights holders (Mahe, para 20). Moreover, the trial judge found that where a number of minority language students is not comparable to the number of majority language students, the equivalence of educational experience should be assessed on a standard of proportionality (i.e. whether facilities are “meaningfully disproportionate” to those offered by the majority), rather than one of substantive equivalence.
Overall, the trial judge assessed several infringements of the appellants’ section 23 language rights that impacted the communities in question, including the absence of core facilities, projected overcrowding, substandard building maintenance and the denial of new homogenous minority language schools. By applying the proportionality analysis from R v Oakes,  1 SCR 103 [Oakes], the trial judge concluded that due to the pressing and substantial objective of fairly allocating limited public funds, most section 23 infringements were justified under section 1, except for the freeze on school transportation funding for students of the linguistic minority. Consequently, $6 million in damages was awarded to the CSF.
The appellants appealed the trial judge’s decision, claiming that the justification of the section 23 infringements under section 1 were erroneous. The appeal was ultimately dismissed, as the BCCA held that Charter did not require the province to finance the schools with public funds. This decision was appealed to the Supreme Court of Canada.
Supreme Court Decision
Writing for a 7-2 majority, Chief Justice Wagner allowed the appeal in part and concluded that the province’s denial to provide more minority language schools within the communities in question constituted an infringement of the appellants’ section 23 rights, which was not reasonably justified under section 1 of the Charter. The Court therefore concluded that the appellants were entitled to eight homogenous schools that were denied by the lower courts.
Overall, the Court emphasized the need to clarify broad principles in Mahe to provide further clarity to section 23 rights holders. In its analysis, the Court highlights the appropriate approach to situate a given number of students on the sliding scale and clarifies the assessment of a section 23 infringement under section 1 of the Charter.
The Sliding Scale Analysis
In Mahe, the Court stressed that “a threshold number of students is required before certain programmes or facilities can operate effectively” to balance the cost of educational services required to accommodate minority language students (Mahe, 385).
To apply the sliding scale framework established in Mahe, Chief Justice Wagner clarifies the following steps that a court must take: (1) establish the relevant number of students in question; (2) employ a comparative approach to determine whether the school contemplated by the minority is appropriate from the standpoint of pedagogy and cost; and (3) determine the level of services that must be provided (Conseil, paras 58-84). When the number of minority language students falls at the high end of the sliding scale, a homogenous school is warranted, whereas at a lower level of the scale, language rights holders may qualify for a range of services, varying from a few hours of classes in its language to the control of premises in a school shared with the majority (Conseil, para 57).
By applying the Mahe framework, the Court notes that the trial judge erroneously applied short-term projections of student enrolment to the sliding scale test. Conversely, the Court accounts for long-term projections (i.e. the number of students who will eventually use the education service) to situate the number of minority language students on a sliding scale. Moreover, while the trial judge decided on a local basis for comparison, the Court concludes that a province-wide comparison is the appropriate approach.
After redressing the analytical errors of the trial judge, the Court determines that the students in question fall at the high end of the sliding scale and concludes that it is appropriate, from the standpoint of pedagogy and cost, for students to receive their instruction in homogenous schools. Furthermore, the Court affirms that all children of rights holders are entitled to an educational experience that is substantively equivalent to the experience at nearby majority language schools.
The Oakes Test
The Court also overviews the Oakes framework to analyze whether a section 23 infringement is justifiable under section 1 of the Charter. Overall, the objective of the measure must relate to “pressing and substantial” concerns in a free and democratic society (Oakes, para 145). The means to attain the objective must also be reasonable, as per the following analysis: (1) the measure must be rationally connected to the objective; (2) the means chosen should minimally impair the freedom; and (3) there must be a proportionality between the effects of the measure and its identified objective.
In applying the Oakes test to the case at hand, the Court notes the linguistic fragility of the British Columbia French minority and the high rate of assimilation of French-speaking students as strong deleterious factors. By noting the remedial purpose of section 23 rights, the Court unequivocally reaffirms the stringent standards of section 23 infringements and asserts that the salutary effects of the infringing measure are not justified under the objective of the rational allocation of public funds.
Overall, in light of Canada’s commitment to the development of minority language communities across the country, the Court highlights that a section 23 infringement is exceedingly difficult to justify and that a very stringent standard is warranted.
The Conseil case is greatly significant in the realm of language rights. The majority judgment, which affirms the stringent standard of section 23 rights, highlights Canada’s commitment to protecting its bilingualism and fostering the development of its two official languages.
In particular, the Court’s re-articulation of the Mahe framework and the Oakes test’s application to section 23 rights provides further guidance to minority language rights holders, while also ensuring efficiency and predictability of future litigation. Despite laudable provisional measures enshrined in the Charter and decades of jurisprudential development following its inception, rights-based litigation is ultimately beyond the financial means of most Canadians. In a recent report from the Department of Justice, many rights holders are unable to access the Canadian judicial system and vindicate their rights-based claims due to lengthy trial proceedings and rising litigation costs. Because of access to justice issues, “deep pockets are required for almost any Charter challenge” which is why many Charter claims are prepared by pro bono counsel or funded by third parties, such as the Court Challenges Program (at 3).
At trial, the case at hand was the longest in British Columbia’s history—lasting 238 days and resulting in a decision of over 1,600 pages. Overall, many interveners highlighted that a clarification of the Mahe framework was indispensable to ensure legal coherence and in effect, diminish lengthy judicial proceedings of minority language rights litigation. In fact, in Conseil, over one decade had elapsed from the initial filing of proceedings to the Supreme Court’s final judgment. As one intervenor of the case aptly pointed out, “ten years of litigation to determine entitlement is simply not viable” (Conseil, para 56). Indeed, lengthy court proceedings caused by legal ambiguities exacerbate access to justice barriers that already impact many Canadians. Despite the interminable judicial proceedings of the Conseil case, the Court’s re-articulation of the Mahe framework provides further clarity to section 23 rights holders and lower courts. Overall, greater predictability and coherence of legal frameworks will certainly diminish both the costs and length of minority language rights litigation proceedings.
Moreover, due to the remedial nature of section 23 rights, the expediency of minority language claims is necessary to fully preserve the rights of minority language rights holders. Even if language rights are eventually upheld by courts, lengthy proceedings (such as the case at bar) would ultimately frustrate the remedial function of minority language rights, contribute to the erosion of minority language communities and deprive generations of students of their language rights. As the Court points out in Conseil, the lengthy trial proceedings of the case at hand denied the language rights of nearly two generations of elementary students (Conseil, para 56). This concern is particularly problematic, as language rights are particularly vulnerable to inaction—in fact, the Court previously found increased likelihood of assimilation with “each passing school year that governments do not meet their obligations under section 23” (Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, para 29). As such, judicial delays not only frustrate access to minority language rights, but also increase likelihoods of cultural erosion for official language minority populations.
Beyond the legal ramifications of this case, the Court implicitly demonstrates the invaluable nature of language development and cultural preservation that ground the general purpose of minority language rights. Indeed, the particular vulnerability of the British Columbia francophone population compels the protection of section 23 rights of communities across the province, and cultural erosion is a pressing factor that cannot be monetarily quantified.
The protection of official language minorities in Canada has attracted public interest and tension since the Confederation. As such, this issue is intrinsically linked to the country’s social and political history. Moreover, minority language education has been described as the “linchpin” of Canada’s commitment to bilingualism and biculturalism (Mahe, 350). Despite the exceptional complexity of the Conseil case, the Supreme Court’s judgment affirms Canada’s commitment to bilingualism by granting minority language rights to French-speaking communities in British Columbia. Further clarity is also provided to section 23 minority language holders by rearticulating and clarifying the Mahe framework. Overall, the establishment of a stringent section 23 standard provides certainty and clarity for forthcoming generations of minority language students who will shape the future of Canada’s cultural mosaic.