Approaching Minority Language Educational Rights Differently: Association des parents de l’école Rose-des-vents v British Columbia (Education)
The case Association des parents de l’école Rose-des-vents v British Columbia (Education), 2015 SCC 21 [Rose-des-Vents] represents an interesting example of a new generation of issues related to minority language educational rights that Canadian courts are brought to resolve on the basis of s.23 of the Charter. This provision is “designed to correct and prevent the erosion of official language minority groups so as to give effect to the equal partnership of Canada’s two official language groups in the context of education” (Rose-des-Vents, para 27). The petition judge’s approach regarding the course of the proceeding and the legal issues – both approved and confirmed by the Supreme Court of Canada (“SCC”) – brings a new light on the protection of these rights.
Synopsis of the Supreme Court Decision
L’école élémentaire Rose-des-vents is the only publicly-funded French-language elementary school for Francophone students living west of Main Street in the city of Vancouver. In 1996, children of minority language rights holders were recognized by the Supreme Court of British Columbia as being entitled to the highest measure of management and control of educational programs and facilities contemplated by s.23 of the Charter. However, in 2010, the Association des parents de l’école Rose-des-Vents and a representative of parents of children enrolled at the school, Rose-des-Vents (“the Parents”), filed a petition against their school board and the government of British Columbia on the grounds that the Parents’ minority language education rights had been breached as the school’s facilities were not equivalent to those of the majority-language schools nearby. Indeed, the school is overcrowded, with an enrollment of 344 students in 2011 yet an operating capacity of 199; the installations are inadequate (lack of storage space, inadequate washrooms, significantly smaller classrooms, classroom with no windows, a small library, etc.); and over two-thirds of the students spend more than 30 minutes per day travelling on the bus, a situation which contrasts greatly with the one prevailing in English-language schools. The right holders also requested for the proceeding to be phased, hoping that obtaining a declaration of a priori violation would suffice to obtain a favourable governmental response.
Basing its reasoning on the principles established in Mahe v Alberta,  1 SCR 342 [Mahe], the SCC concluded that the lack of equivalence between the minority and majority educational services constituted a breach of s.23 of the Charter, and confirmed the declaration issued by the petition judge. The SCC also approved the procedures adopted by the petition judge to manage the proceeding, which was phased in as a means to obtain a declaration assessing the breach, while leaving the questions of responsibility, justification and reparation to later phases. The appeal was therefore allowed, the petition judge’s declaration was reinstated and, if necessary, the matter would be remitted to the Supreme Court of British Columbia for the next phase of the petition.
Assessing the Equivalence of the Educational Experience: A Contextual and Comparative Analysis
This case raises two questions: (1) When is the quality of a minority language school education equivalent to that of the majority language schools?; and (2) What factors go into determining equivalence? (Rose-des-Vents, para 1).
To determine the level of entitlement of the right holders, the SCC relies on the “sliding scale” approach of minority language education rights established in Mahe. In that case, the “numbers warrant the highest level of French-language educational instruction and facilities, which necessarily includes an element of management and control for the rights holders” (Rose-des-Vents, para 34). The right holders are thus entitled to an educational experience of similar quality to the one offered by the majority-language schools.
In order to assess the equivalence of the educational experience, the SCC analyzed whether reasonable parents would be discouraged from enrolling their children in a minority-language school because such a school would be meaningfully inferior to majority-language schools situated in the established comparison group (being nearby Vancouver English-language schools as this geographic scope constitutes the realistic school alternative for the right holders). Following a contextual and holistic comparative exercise meant to replicate the way parents make decisions regarding their children’s education – including criteria like the physical facilities, the quality of instruction, the educational outcomes, the extracurricular activities and the travel times – the SCC agreed with the petition judge that the striking adequacies were affecting the Francophone school compared to English-language schools, and that both the quality of instruction and facilities can represent important elements of comparison. Cost and practicalities, however, were not considered pertinent to the analysis, but may be at the justification and reparation phases.
The SCC thus considered that the petition judge adequately assessed the relevant factors, noting the school’s high quality of instruction and good academic outcomes, but concluding that the programs offered were not superior enough to offset its inadequate facilities, overcrowding and long travel times, a situation conceived as contributing to the assimilation of the involved Francophones. Having concluded that the lack of equivalence between the minority and majority educational services meant that the right holders were not being provided the minority language facilities guaranteed to them by s.23 of the Charter, in accordance with the conclusions of the petition judge, the SCC confirmed the petition judge’s declaration of a breach.
The Phasing of the Proceeding
One of the most interesting issues addressed in Rose-des-Vents is the phasing of the proceeding by the petition judge, who assessed only whether the constitutional standard guaranteed under s.23 was provided to the rights holders; leaving the determination of responsibility between the provincial government and the school board, the potential justification for the breach, and the positive remedy, to a later stage. According to the SCC, quite rightly in my opinion, by ordering such a proceeding, the petition judge took into consideration the efficient use of judicial resources, the special nature of s.23, and the need to facilitate access to justice, as this issue could be dealt with more expeditiously, leaving the more time-consuming or complex issues that might prove unnecessary to engage to later phases (Rose-des-Vents, para 69-71).
Such a treatment of the instance is quite interesting with regard to s.23; the only right guaranteed by the Charter, explicitly placing positive obligations on the State. While the rendering of a declaratory judgment is quite a common remedy to a violation of this provision, the phasing of the proceeding had never been used in a case regarding not only s.23, but any other human rights protected by the Charter.
If Rose-des-vents might seem distinctive due to the unresolved question of the assignation of the responsibility for the failure to meet the constitutional standard between the government and the school board, the resolution of any complex dispute involving the breach of a protected positive right might be facilitated by such a treatment of the proceeding.
Moreover, cases concerning s.23 – and socio-economic rights in general – usually implicate a heavy and complex body of proof. They are often linked to political priorities, and necessitate the deployment of a large amount of time and resources not only for the parties, but also for the State. Phasing the proceeding to only assess the presence of an a priori violation, therefore, appears as an appropriate strategy to deal with such cases, where circumstances warrant of course. Given that the just and appropriate remedy rendered in the event of a non-justified violation to s.23 is usually a declaratory judgment (the same type of declaration granted in Rose-des-Vents), there would be room for the instance to end at this stage if the party, or parties, responsible for the violation were to accept the entitlement of the minority-language Plaintiffs to educational service without wishing to go further with the justification of the breach. Indeed, there is a tradition in Canada that State actors should take Charter declarations seriously (Rose-des-Vents, para 65; Doucet–Boudreau v Nova Scotia (Minister of Education),  3 SCR 3, para 62), and, as mentioned by Justice Karakatsanis: “In the face of competing resource demands and the imperfect realities of day-to-day management of an education system, s. 23 of the Charter requires good faith on the part of all interested parties to ensure substantive equivalence for rights holders” (Rose-des-Vents, para 67).
Rose-des-Vents, in addition to being a relevant example of the application of the principles established in Mahe to a new generation of issues regarding s.23 of the Charter, offers an original take on the treatment of such proceedings. As this constitutional provision constitutes a distinctive right in Canada, not only for its purpose to protect minority language populations from assimilation but also because of the positive obligations it puts on State authorities, this treatment of the instance might offer an convenient option to treat complex minority language right cases in a more expeditious way, respectful of the access to justice, and of the efficient use of judicial resources.