Minority Language Education Entitlements & The Meaning of Substantive Equality under Section 23 of the Charter

Ass’n des parents de l’école Rose-des-vents v. British Columbia, 2015 SCC 21 [Rose-des vents] opens up a new series of questions surrounding minority language education rights guaranteed under Section 23 of the Charter. Section 23 guarantees minority language rights holders the right to have their children receive primary and secondary school instruction in English or French, giving effect to the equal partnership of Canada’s two official language groups in the context of education. It was designed to correct the erosion of official language minority groups and to counteract assimilation, which may occur when the children of rights holders attend majority language schools.

This case is unique because, unlike the previous decisions, which focused mainly on the issues of initial entitlement to a given level of minority language educational services, it focuses instead on evaluating whether or not the minority group is actually receiving the services it is entitled to under Section 23.

The decision clarifies the scope of the constitutional rights awarded to linguistic minorities in Canada with regard to education, and provides clear guidelines for measuring equivalence.

The Facts

L’ecole elementaire Rose-des-vents (“RDV”) is the only publicly-funded French-language elementary school for children living west of Main Street in Vancouver.

RDV is small, with narrow hallways, a very small library, inadequate washrooms and no available flexible space. While the Francophone population in the relevant area warrants the provision of elementary school facilities capable of accommodating approximately 500 students, the operating capacity of the school is only 199 students. The school is overcrowded, as its current enrolment constitutes 344 students. In addition, roughly 85 per cent of students attending RDV are transported to school by bus and over two-thirds of those have bus trips longer than 30 minutes per trip. By contrast, the English-language schools in RDV’s catchment area are larger, with bigger classrooms and playing fields, and more spacious libraries. Most students attending English-language schools in the area live within one kilometer of their school. The comparably more difficult learning conditions deter parents from sending their children to RDV, the minority language school, and make them give up on passing on their language, culture, and identity to their children.

In 2010, parents of children attending RDV filed a petition naming as respondents the Province and the French-language School Board (“CSF”), seeking a declaration that their minority language education rights under Section 23 of the Charter had been breached. The grounds for the petition were that the educational services, particularly the school facilities, provided to their children at RDV were not equivalent to those of the English-lanugage schools in the area. The parents requested that the legal proceedings be phased so that they could obtain a declaration, while leaving the question of responsibility for the alleged inadequacies to a later stage if necessary. They hoped that obtaining a declaration alone would be sufficient to obtain a favourable government response.

Lower Courts’ Decisions

The petition judge determined that the overall educational programs offered at RDV were of a good quality. However, these programs did not offset the school’s inadequate facilities, overcrowding, and long travel times. He concluded that the disparity between the minority and majority language schools was to such an extent as to limit enrolment and contribute to assimilation. Accordingly, the petition judge issued a declaration that the parents were not being provided the minority language educational facilities guaranteed to them by Section 23 of the Charter. He also accepted the parents’ request to phase the proceedings and did not assign responsibility for the failure to meet the constitutional standard. He made this decision in view of the possibility that the outcome of the first phase (i.e., declaratory relief) might lead to the resolution of the dispute. In addition, prior to undertaking the first phase dealing with determining equivalency, the judge struck certain parts of the Province’s pleadings regarding costs and practicalities on the grounds that they were not relevant to the first phase of the proceedings.

The Province appealed, taking the position that costs and practicalities are part of every entitlement related decision under Section 23 and should enter into the analysis of whether the existing facilities are equivalent. Also, the Province argued that because the petition judge failed to assign responsibility, his decision was not the equivalent finding of the breach of Section 23.

The Court of Appeal allowed the appeal brought by the Province and set aside both the order striking some of the Province’s pleadings and the declaration.

The Supreme Court’s Assessment of Equality Under Section 23

Substantive vs. Formal Equality

The Supreme Court cautioned against adopting the view that the majority and minority official language groups should be treated alike. It noted that “Section 23 is premised on the fact that substantive equality requires that official language minorities be treated differently, if necessary, according to their particular circumstances and needs in order to provide them with a standard of education equivalent to that of the official language majority” (Rose-des vents, para 33). Thus, the Supreme Court emphasized that the focus in giving effect to Section 23 rights should be on substantive equivalence as opposed to formal equivalence. This means that the comparative exercise must account not for such formal markers of equivalence as per capita costs, but for varied factors that reasonable parents use to assess equivalence.

The Test for Substantive Equality

The Supreme Court set out what is essentially a three-part test for determining equivalence under Section 23. The first step is to determine the entitlement of the parents, the holders of the right. This requires assessing what level of service the number of rights holders in a given community warrants. The Supreme Court noted that “Section 23 guarantees a ‘sliding scale’ of minority language education rights” (Rose-des vents, para 29). At the upper limit of the sliding scale, the rights-holders are entitled to full educational facilities that are meaningfully similar to those found in the majority language schools in the relevant catchment area. The second step is to determine the comparator group that is appropriate for the assessment of equivalence of minority language school. Generally, when considering which school their child should attend or whether to withdraw their child from a minority language school, the parents will look to nearby majority language schools as alternatives. Therefore, the appropriate comparator group should be the nearby majority language schools. Finally, the factors that are considered in assessing equivalence should mirror the factors that reasonable parents consider when making decisions regarding their children’s education, such as physical facilities, quality of instruction, educational outcomes, extracurricular activities, travel times, and so on.

The Supreme Court further noted that the comparative exercise must be contextual and holistic. All the relevant factors must be considered together in assessing whether the overall educational experience is inferior in a way that could discourage rights holders from enrolling their children in a minority language school. If, on balance, the experience is equivalent the requirements of Section 23 will be met.

A Note on the Issues of Costs and Practicalities

Regarding the issues of costs and practicalities, the Supreme Court clarified that they do not constitute a part of the inquiry into equivalence, because they are usually considered in the determination of the level of educational services  a group of rights holders is entitled to on the sliding scale. Accordingly, it would undermine the equality analysis to consider the costs and practicalities again after the appropriate level of educational services has already been determined. However, the Supreme Court maintained that costs and practicalities will be relevant when the responding party attempts to justify a breach of Section 23, or when fashioning an appropriate remedy for the breach.

The SCC Decision

The Supreme Court decided that the petition judge applied the correct test to assess equivalence. He reasonably held that although the parents were satisfied with the quality of the instruction their children were receiving, this does not offset the school’s  inadequate facilities, overcrowding, and long travel times. The Supreme Court noted that there was no error in principle in the petition judge’s conclusion that the disparity between the minority and majority language schools was such as to limit enrolment and contribute to assimilation and thus constitute a breach of Section 23.

Further, the Supreme Court held that although the petition judge’s failure to establish responsibility for the breach of Section 23 in this case constitutes an incomplete finding of a Charter violation, the declaration nonetheless represents the equivalent of a declaration of a prima facie breach of Section 23 . It was not necessary to assign responsibility because the Province did not attempt to justify the absence of equivalence under Section 1 and the complainant did not seek any remedies.

The Supreme Court justified its choice to support declaratory relief and phasing of the proceedings by noting that there is a tradition in Canada of state actors taking Charter declarations seriously and the governments will usually comply with the declaration promptly and fully. In addition, the declaratory relief defers to the parties, allowing them to determine among themselves the best course of action to remedy the lack of equivalence. The Supreme Court also pointed out that properly structured phasing facilities access to justice providing expeditious resolution of urgent issues, while leaving more time-consuming or complex issues to a later phase, particularly where it may prove unnecessary to engage the later stages.

Finally, the Supreme Court reviewed the portions of the Province’s pleadings struck by the petition judge and determined that those pleadings were not related to the inquiry of equivalence. As such, it was open to the petition judge to strike those portions from the Province’s pleadings and the petition judge’s declaration was reinstated.