Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia

Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia
Collection
Supreme Court Judgments
Date
2020-06-12
Neutral citation
2020 SCC 13
Report
[2020] 1 SCR 678
Case number
38332
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah; Kasirer, Nicholas
On appeal from
British Columbia
Subjects
Constitutional law
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678
Appeal Heard: September 26, 2019 Judgment Rendered: June 12, 2020 Docket: 38332
Between:
Conseil scolaire francophone de la Colombie-Britannique, Fédération des parents francophones de Colombie-Britannique, Annette Azar-Diehl, Stéphane Perron and Marie‑Nicole Dubois
Appellants
and
Her Majesty The Queen in Right of the Province of British Columbia and Minister of Education of British Columbia
Respondents
- and -
Attorney General of Nova Scotia, Attorney General of Prince Edward Island, Attorney General of Saskatchewan, Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Attorney General of the Northwest Territories, Commissioner of Official Languages of Canada, Quebec Community Groups Network, David Asper Centre for Constitutional Rights, Association des juristes d’expression française du Nouveau-Brunswick inc., Association des enseignantes et enseignants francophones du Nouveau-Brunswick inc., Fédération nationale des conseils scolaires francophones, Association des parents de l’école Rose-des-Vents, Association des parents de l’école des Colibris, Canadian Association for Progress in Justice, Société de l’Acadie du Nouveau-Brunswick, Fédération des conseils d’éducation du Nouveau-Brunswick, Assembly of Manitoba Chiefs, Commission nationale des parents francophones, Conseil scolaire francophone provincial de Terre-Neuve-et-Labrador and Canadian Francophonie Research Chair in Language Rights
Interveners
Official English Translation: Reasons of Wagner C.J.
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
Reasons for Judgment: (paras. 1 to 187)
Wagner C.J. (Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ. concurring)
Joint Reasons Dissenting in Part: (paras. 188 to 348)
Brown and Rowe JJ.
Conseil scolaire francophone de la Colombie‑Britannique,
Fédération des parents francophones de Colombie‑Britannique,
Annette Azar‑Diehl,
Stéphane Perron and
Marie‑Nicole Dubois Appellants
v.
Her Majesty The Queen in Right of the Province of British Columbia and
Minister of Education of British Columbia Respondents
and
Attorney General of Nova Scotia,
Attorney General of Prince Edward Island,
Attorney General of Saskatchewan,
Attorney General of Alberta,
Attorney General of Newfoundland and Labrador,
Attorney General of the Northwest Territories,
Commissioner of Official Languages of Canada,
Quebec Community Groups Network,
David Asper Centre for Constitutional Rights,
Association des juristes d’expression française du
Nouveau‑Brunswick inc., Association des enseignantes
et enseignants francophones du Nouveau‑Brunswick inc.,
Fédération nationale des conseils scolaires francophones,
Association des parents de l’école Rose‑des‑Vents,
Association des parents de l’école des Colibris,
Canadian Association for Progress in Justice,
Société de l’Acadie du Nouveau‑Brunswick,
Fédération des conseils d’éducation du Nouveau‑Brunswick,
Assembly of Manitoba Chiefs,
Commission nationale des parents francophones,
Conseil scolaire francophone provincial de Terre‑Neuve‑et‑Labrador and
Canadian Francophonie Research Chair in Language Rights Interveners
Indexed as: Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia
2020 SCC 13
File No.: 38332.
2019: September 26; 2020: June 12.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of rights — Minority language educational rights — Provincial funding of minority language education system — Sliding scale — Substantive equivalence — Justification of infringements — Approach to take in order to situate given number of students on sliding scale so as to determine level of services that must be provided to them — Whether test used to assess quality of educational experience provided to official language minorities varies with number of minority language students — Whether infringements of this right are justified –– Canadian Charter of Rights and Freedoms, ss. 1 , 23 .
Constitutional law — Charter of rights — Remedy — Damages — Trial judge deciding that province had to pay damages to school board to make up deficit it had run because of freeze on funding for school transportation — Whether limited government immunity from damages awards applies to decisions made in accordance with government policies that are found to be contrary to s. 23 of the Charter .
The Conseil scolaire francophone de la Colombie‑Britannique (“CSF”) is the sole French‑language school board in British Columbia. Its territory covers the entire province, and it has 37 schools. In June 2010, the CSF, the Fédération des parents francophones de Colombie‑Britannique and three parents who are rights holders under s. 23 of the Charter (“linguistic minority representatives”) filed a notice of civil claim against the province, submitting that several aspects of the funding of the education system penalized the official language minority and infringed its rights under s. 23 of the Charter . The alleged infringements can be divided into two categories: the first involved systemic claims (among other things, the fact that the CSF had not received an annual grant for building maintenance, the formula used to set priorities for capital projects, a lack of funding for school transportation and a lack of space for cultural activities), and the second involved claims for the purpose of obtaining new schools or improvements to existing schools in 17 communities.
The trial judge set out an approach to be taken in order to situate the number of students in a given community on the sliding scale, which serves to determine the level of services to which an official language minority is entitled and is used to decide whether the minority is entitled to a homogeneous school, to educational facilities shared with the majority or to another appropriate solution. Applying her analytical framework, the trial judge issued declarations concerning the right to educational facilities in several communities. She then outlined the test that is to be applied in determining the quality of the educational experience that must be provided to official language minorities. She concluded with respect to several communities that the children of rights holders are entitled to facilities that provide them with an educational experience that is substantively equivalent to the experience of the majority, but she found with respect to other communities that the numbers of children of rights holders warranted not a substantively equivalent educational experience, but one that is proportionately equivalent to the educational experience provided to the majority. Discussing the principles of interpretation that must inform the analysis of infringements of s. 23 under s. 1 of the Charter , the trial judge then concluded that several infringements of the rights holders’ language rights were justified under s. 1. Finally, she concluded that awarding damages would not be appropriate for most of the claims of the linguistic minority representatives, but she found that the freeze on funding for school transportation at a time when the number of students of the linguistic minority was rising constituted an infringement of s. 23, and she awarded $6 million in damages to the CSF. On the other hand, the trial judge declined to award damages to the CSF in compensation for its having been denied the Annual Facilities Grant Rural Factor.
The linguistic minority representatives appealed the trial judge’s judgment, arguing that she had made several errors of law in analyzing the alleged infringements of s. 23 of the Charter , including in the approach she had taken in order to situate a given number of students on the sliding scale and in the test she had applied in order to assess the quality of the educational experience provided to official language minorities; in reviewing the justification of the infringements under s. 1; and in granting the remedies being sought. The Court of Appeal dismissed the appeal but allowed the province’s cross appeal and set aside the award of damages for inadequate funding of school transportation.
Held (Brown and Rowe JJ. dissenting in part): The appeal should be allowed in part.
Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ.: The courts below adopted an inordinately narrow interpretation of s. 23 of the Charter and its role in the Canadian constitutional order. Section 23 has a remedial purpose related to promoting the development of official language minority communities and changing the status quo. In accordance with an interpretation of that section that takes its remedial purpose fully into account, and in light of the trial judge’s findings of fact, the appeal should be allowed in part.
In Mahe v. Alberta, [1990] 1 S.C.R. 342, the Court explained that situating a given number of students on the sliding scale requires that the analysis focus on (1) the services appropriate, in pedagogical terms, for the number of students involved; and (2) the cost of the contemplated services. However, the Court did not provide an exhaustive definition of these two factors. The approach to be taken in order to situate a given number of students on the sliding scale must therefore be clarified.
The analysis of the first factor, pedagogical needs, is concerned with whether, in light of the number of students at issue, the level of services proposed by the minority will make it possible to meet all curriculum requirements, that is, those related to the knowledge and skills the students must acquire while in school. The second factor in the analysis, cost, is less important than the first. It comprises the cost of building a new school or launching a program, and the associated operating costs. As a general rule, pedagogical considerations and cost considerations are interlinked and can be assessed simultaneously.
The approach to be taken in order to situate a given number of students on the sliding scale is based on the premise that a homogeneous school, that is, a separate facility under the control of the official language minority, is warranted where such a school is available to a comparable number of majority language students. The first step is to determine how many students will eventually avail themselves of the contemplated service on the basis of long‑term projections. That number lies between the known demand and the total number of children of s. 23 rights holders. The burden of proof is on the claimants from the official language minority.
At the second step, the court must take a comparative approach in order to determine whether the school contemplated by the minority is appropriate from the standpoint of pedagogy and cost. The approach is intended for the determination of whether the number of students in question from the official language minority is comparable to the numbers of students in the majority language schools. The burden is on the claimants from the official language minority to identify comparator schools. It is necessary to be flexible in determining what constitutes a comparable number. Comparable does not mean identical. If the court finds that the number of minority language students is comparable to the numbers of students in local majority language schools, there is no doubt that the number of minority language students falls at the high end of the sliding scale and that the minority is entitled to a homogeneous school. In other cases, a province-wide comparative exercise is required to ensure fair treatment across the province.
The existence of majority language schools that serve a given number of students, regardless of where they are located in the province, supports a presumption that the province considers maintaining those schools to be appropriate from the standpoint of pedagogy and cost, and thus that it is appropriate to create a comparably sized homogeneous school for the minority. The province can rebut this presumption by showing on a balance of probabilities either that the majority language schools used as comparators are not appropriate for that purpose or that the school proposed by the minority is not appropriate from the standpoint of pedagogy or cost.
At the third step, the level of services to be provided to the official language minority must be determined. If the court has found at the second step that the number of students is comparable and that the presumption has not been rebutted, that number is at the high end of the sliding scale and the minority is therefore entitled to have its children receive instruction in a homogeneous school. If the result of the province‑wide comparison is that there is no comparable number, the number of minority language students falls below the high end of the sliding scale, that is, at the low end or in the middle. A minority at the lower levels of the scale can qualify for a range of services varying from a few hours of classes in its language to the use and control of premises in a school shared with the majority. In such a situation, the court must show deference to the level of services proposed by the minority language school board in determining whether that level of services is appropriate from the standpoint of pedagogy and cost.
When this approach is applied in this case to the claims of the linguistic minority representatives for new schools or for the expansion of existing schools, they are entitled to eight homogeneous schools that were denied by the courts below. The schools in question are warranted by the numbers of minority language students in the communities in question. The trial judge found that the number of minority language students in the communities of Abbotsford (elementary component for children of rights holders in the community of Abbotsford and secondary component for children of rights holders in the communities of the Central Fraser Valley), Burnaby, Northeast Vancouver, East Victoria and West Victoria will in the long term warrant the creation of homogeneous schools. Given that the long‑term projections are the relevant numbers, these communities are therefore entitled to homogeneous schools.
For the communities of North Victoria, Whistler, Chilliwack and Pemberton, the trial judge decided on a local basis for comparison even though the comparison must take schools located across the province into account. The appropriate comparative approach requires that the number of students who will eventually avail themselves of the service — 98 for North Victoria, 85 for Whistler, 60 for Chilliwack and 55 for Pemberton — be compared with the numbers of students attending the small schools located across the province that were retained by the trial judge and for which there is no evidence in the record capable of rebutting the presumption that it is appropriate to create a school of comparable size for the minority. Enrolment in these majority language schools ranges from 66 to 73 students. The relevant numbers for North Victoria, Whistler and Chilliwack are comparable to the numbers of students attending these comparator majority language schools. These communities are therefore entitled to homogeneous schools. As for Pemberton, it is difficult to compare the number of students in question there with the numbers of students at the majority language schools located elsewhere in the province that were retained by the trial judge. Given that the available evidence is limited and that additional submissions might be necessary, the question of the level of services warranted by this number of students should therefore be remanded to the court of original jurisdiction for reconsideration.
The test used to assess the quality of the educational experience provided to official language minorities does not vary with the number of minority language students. Section 23 gives an official language minority the right to instruction that is equivalent in quality to the instruction provided to the majority. Children of s. 23 rights holders must therefore receive an educational experience that is substantively equivalent to the experience provided to the majority, regardless of the size of the school or program in question. The essentials of the approach from Association des parents de l’école Rose‑des‑vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139, which allows for a holistic assessment of the quality of the educational experience provided to the official language minority, do not need to be adapted in a situation in which the schools of the official language minority are small, aside from the fact that a reasonable parent must take into account the inherent characteristics of attendance at a small school. Accordingly, where a minority language school is not comparable in size to nearby majority language schools, what must be considered is whether reasonable parents who are aware of the inherent characteristics of small schools would be deterred from sending their children to a school of the official language minority because the educational experience there is meaningfully inferior to the experience at available majority language schools. Even where the number of students falls at the low end of the sliding scale, such that there is a right to instruction alone, the factors listed in Rose‑des‑vents must be taken into account in assessing the quality of the educational experience from a program of instruction; the right to instruction cannot be entirely severed from the overall educational experience. In the case of a heterogeneous school or a program of instruction, the analysis based on the substantive equivalence test serves to determine whether the instruction over which the minority has control and the facilities to which it has access are of sufficient quality.
In light of these comments, the approach adopted by the courts below in this case where the number of students was not comparable to the numbers of majority language students must be rejected, because that approach was based on what was called a proportionality test rather than on that of substantive equivalence. The trial judge’s conclusions are therefore varied to reflect the conclusion that all rights holders whose children attend CSF schools or participate in its programs are entitled to an educational experience that is substantively equivalent to the experience at nearby majority language schools.
For the schools in the communities of Nelson, Chilliwack and Mission, the quality of the educational experience must be assessed from the perspective of a reasonable parent who is aware of the inherent characteristics of a small school. When the substantive equivalence test and the proper approach are applied for the CSF school in Nelson, the trial judge’s finding that the educational experience of the minority language students is equivalent to the experience provided to the majority language students should be accepted. As for the CSF school in Chilliwack, a balancing of the advantages and disadvantages shows that the quality of the educational experience provided there is meaningfully inferior to that of the experience at the majority’s schools. This means that the children of rights holders in Chilliwack do not receive an educational experience of the quality guaranteed to them by s. 23 of the Charter . In the case of the CSF school in Mission, the situation is concerning, but the evidence that was adduced is insufficient for the purpose of making the holistic assessment required by the test of a reasonable parent who is aware of the inherent characteristics of a small school. The question of the quality of the educational experience and the impact of the Facility Condition Driver on this situation must therefore be remanded to the court of original jurisdiction.
The fact that the province compels the CSF to prioritize the capital projects the latter submits, even in response to infringements of s. 23, does not infringe the right of management guaranteed by s. 23 of the Charter . How much time the province has to remedy the infringements of s. 23 will have to be addressed on a case‑by‑case basis, but the infringements must nonetheless be remedied in a timely fashion.
Where an infringement of s. 23 is established, a court must take the approach established in R. v. Oakes, [1986] 1 S.C.R. 103, while applying a particularly stringent justification standard. This very stringent standard is appropriate for three reasons. First, the framers of the Charter imposed positive obligations on the provincial and territorial governments in s. 23, and these obligations must be fulfilled in a timely fashion in order to avoid the likelihood of assimilation and of a loss of rights. Second, s. 23 is not subject to the notwithstanding clause in s. 33 of the Charter , which reflects the importance attached to this right and the intention of the framers that intrusions on it be strictly circumscribed. Third, 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. In adopting this limit, the framers sought to take account of practical considerations, including cost and pedagogical needs, related to the number of students who might benefit from the right in question. Where the government concerned advances a financial argument to justify an infringement of s. 23, the s. 1 analysis will then in some respects duplicate the numbers warrant analysis that has already been completed. For an infringement of s. 23 to be justified under s. 1, it must not therefore be supported by considerations that have already been taken into account at the numbers warrant stage.
At the second stage of the approach established in Oakes — proportionality between the effects of the measure that is responsible for limiting the right and the objective that has been identified as important —, it is necessary to take assimilation fully into account as a deleterious effect when the right under s. 23 is infringed. The purpose of s. 23 is not only to ensure the sustainability of the country’s linguistic communities, but also to make it possible for those communities to develop in their own language and culture in the present. In this sense, even though the evidence shows that s. 23 has not been able to counter or slow the process of assimilation, the fact remains that citizens from official language minority communities still have a right to achieve fulfillment in their own language in everyday life. In addition, a court must bear in mind that s. 23 has an individual dimension and that minority language schools have a definite impact on the likelihood of assimilation of French speakers who attend them. Finally, cost savings linked to an infringement of s. 23 cannot be considered a relevant factor in the balancing of the salutary and deleterious effects of the infringing measure.
In the case at bar, the courts below erred in ruling that the fair and rational allocation of limited public funds is a pressing and substantial objective that can justify infringements of s. 23 in accordance with the Oakes test. The fair and rational allocation of limited public funds represents the daily business of government. The mission of a government is to manage a limited budget in order to address needs that are, for their part, unlimited. There is accordingly no pressing and substantial objective here that can justify an infringement of rights and freedoms in this case. The justification for the infringements therefore fails at the first stage of the analysis. Without a valid objective, the province cannot justify the infringements of s. 23.
As a result, the infringement of s. 23 found by the trial judge on the basis that the CSF had been denied $1.1 million by not having benefited from the Annual Facilities Grant Rural Factor is not justified, and the CSF is entitled to damages in that amount.
The limited government immunity from damages awards does not apply to decisions made in accordance with government policies that are found to be contrary to s. 23. Although damages can be awarded against a government where they are an appropriate and just remedy in the circumstances, it may avoid such an award by raising concerns for effective governance, including where a law has been declared to be invalid after the act that caused the infringement. However, the government does not have immunity in relation to government policies that infringe fundamental rights. The possibility of damages being awarded in respect of Charter ‑infringing government policies in this context is unlikely to have a chilling effect on government actions and thereby undermine their effectiveness; on the contrary, it helps ensure that government actions are respectful of fundamental rights. While it is appropriate to give the government immunity in respect of a well‑defined instrument such as a law, the same is not true in respect of undefined instruments with unclear limits, such as government policies.
In the case at bar, because the freeze on school transportation funding was a government policy, the trial judge’s order awarding damages for the inadequate funding of school transportation should be restored.
Per Brown and Rowe JJ. (dissenting in part): Unlike most Charter rights, s. 23, which confers the right to minority language education, imposes positive duties on governments to act. It is preventative, remedial, and unifying, and must be interpreted in light of these objectives. The framing of s. 23 as a positive right is particularly significant. The right expresses its own internal limit, the “numbers warrant” criterion, which reflects a carefully struck constitutional bargain between the federal and provincial governments. This numerical threshold ensures that the positive obligations on the provinces are reasonable and reflect what is practical while at the same time providing the appropriate level of services for minority language students. Both the text of s. 23 and its particular nature require courts to give the provision its proper and intended effect, in line with settled jurisprudence. Striking the right balance recognizes that it is possible to breathe life into the s. 23 right, albeit with caution.
The analysis to be applied to s. 23 claims follows two main steps. First, a court must determine the level of services warranted by the number of rights holders in a given area (the “numbers warrant” analysis). This entails ascertaining the relevant number of rights holders, then placing that number on a sliding scale of entitlement in order to decide what level of service is warranted.
The relevant figure for the purposes of this analysis is the number of persons who will eventually take advantage of the contemplated program or facility. This figure is an estimate that will fall somewhere between the known demand for the service and the total number of persons who potentially could take advantage of the service. The goal is not to establish how many students will take advantage of the facility or program when it is first launched, but rather to forecast how many will do so in the future.
After determining the relevant number, the court must then establish, using the sliding scale approach, what level of services is warranted, pedagogically, given the number of minority language students, and the cost of such service. The right to minority language education is internally limited to the services that can be justified, pedagogically and financially, by the number of children of rights holders. To trigger the obligation to publicly fund minority language education, a claimant must demonstrate that this limit is accounted for. The burden of proving all elements of the s. 23 breach rests on the person asserting the breach. This ensures that s. 23’s own internal qualifications and method of internal balancing are fulfilled. The operation of the sliding scale gives effect to this internal limit because the content of the right expands as the numbers increase, thereby ensuring that rights holders receive a level of service that is appropriate to their number. Proper placement on the sliding scale is critical. It ensures that governments will deploy the resources necessary to meet their obligations under s. 23, and that the internal limit to those obligations is accounted for. Furthermore, just as a failure to give effect to the rights conferred by s. 23 can be detrimental to the flourishing of minority languages, improper placement on the scale can also be harmful to minority students. There would be no point, for instance, in having a school for only ten students in an urban centre, as it would deprive the students of the numerous benefits of studying and interacting in larger numbers.
To determine the level of service that is warranted for a given group of rights holders, a claimant must first demonstrate, on a balance of probabilities, that the level of service claimed is pedagogically appropriate for the number of children. To assess the pedagogical appropriateness of a given level of service, the existence of majority schools or programs built for similar numbers elsewhere in the province can be a relevant indicator that a homogeneous school or program would be pedagogically appropriate for the number of rights holders’ children. However, the existence of a small school anywhere in the province is not determinative. Courts need to first assess whether the school or program is a relevant comparator, taking into account factors such as whether it is in a rural or urban area, whether it serves a remote or isolated community, whether the school continues to operate at the capacity for which it was built, and whether the school operates as a result of supplementary private funding. As a general rule, because s. 23 calls for publicly funded minority language education, an appropriate comparator would also need to be publicly funded. This approach entails considering the context of schools used in the comparison to ensure that the circumstances are relevant and comparable to the proposed school or service. The assessment of relevant comparators must take into account that there need not be perfect correspondence of pedagogical appropriateness between the minority and the majority language education. At this stage of the analysis, there is no principled reason to constrain comparator schools locally, and the views of school boards are entitled to a measure of deference with respect to particular services among the range of potentially available services that are most pedagogically appropriate below the upper end of the sliding scale, consistent with the principle that minority language groups should have control over those aspects of education which pertain to their language and culture.
If successful in showing pedagogical appropriateness, a presumption then arises to the effect that the level of service is also appropriate as to cost. The burden in turn shifts to the province or territory to rebut the presumption, which is suitable given that it is better placed to adduce such evidence. Throughout, the burden for demonstrating pedagogical appropriateness rests with the claimant, who has the onus of establishing a Charter breach. This approach is consistent with the fact that cost appropriateness is usually subsumed within the assessment of pedagogical appropriateness. It is particularly important to circumscribe the entitlement within the s. 23 analysis given the limited application of s. 1 of the Charter in cases of s. 23 infringements. Considerations of pedagogy and cost are thus seriously taken into account within the s. 23 analysis itself. Though cost is not usually a factor in determining whether an individual is to be accorded a right under the Charter , in the specific case of s. 23, such a consideration is mandated.
Applying a province‑wide presumption of pedagogical and cost appropriateness at the “numbers warrant” stage, as a majority of the Court suggests, affects key elements of the s. 23 analysis and leads to a compression of the middle of the sliding scale. Considerations of pedagogy and cost are effectively withdrawn, regardless of the particular context that may explain the continued relevance of a school elsewhere in the province. A right to a homogeneous school, which is the highest level of entitlement on the scale, is immediately presumed, thereby shifting the claimant’s burden to the province from the outset. How a province could successfully rebut this presumption is unclear, transforming the presumption effectively into a rule. This operates as a fast track to the upper end of the sliding scale, eliminating any middle level. Such an approach is inconsistent with the Court’s past refusal to adopt a view of s. 23 as encompassing only two rights, that is, one with respect to instruction and one with respect to facilities. This view was rejected by the Court in favour of the sliding scale approach, which allows for a progressive increase in entitlement as the number of rights holders increases.
At the second step of the s. 23 analysis, courts must determine whether the quality of services granted to the rights holders is substantively equivalent to the quality of services provided to local majority language students (the “substantive equivalence” analysis). A purposive interpretation of s. 23 requires that substantive equivalence apply throughout the sliding scale. This approach recognizes that the quality of official minority language education cannot be meaningfully inferior to that of the majority. The use of a “proportionality” norm at this stage of the s. 23 analysis would mean that the minority’s relative weight to that of the majority will be taken into account not once but twice, each time diminishing the quality and level of the minority’s constitutional entitlement. As such, it must be rejected.
A purposive interpretation of s. 23 emphasizes its true purpose of redressing past injustices and providing the official language minority with equal access to high quality education in its own language, in circumstances where community development will be enhanced. A purposive interpretation of s. 23 may be achieved only by applying substantive equivalence as the appropriate norm at the second stage of the s. 23 analysis, irrespective of where a community falls on the sliding scale. The rationale for applying substantive equivalence is further rooted in the broader principle of protecting minority rights, a fundamental underlying principle to the Constitution.
The “substantive equivalence” analysis under s. 23 seeks to evaluate the quality of services provided to minority rights holders. The analysis is circumscribed by comparing the quality of the level of services that is warranted for the number of minority language students with the quality of that same level of services provided to neighbouring schools. The analysis must remain global and contextual and must be mindful that instruction cannot be dissociated from the facilities in which it is provided. Multiple factors may be considered, including the quality of instruction, teachers, physical facilities, educational outcomes, extracurricular activities, and travel time. The relevant factors, as dictated by the circumstances of each case, are 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. These considerations are applied from the standpoint of the reasonable rights holder parent, comparing the minority language school with the local majority schools that represent realistic alternatives for them.
The effect of combining a legal presumption of pedagogical and cost appropriateness at the first stage of the s. 23 analysis, as suggested by a majority of the Court, with recourse to substantive equivalence as the proper comparative norm at the second stage, leads to a strained application of substantive equality. This combination will result in the establishment of very small minority language schools being compared to local majority language schools, which are typically larger and equipped with more or better services, thereby lifting local minority groups to the top of the sliding scale. Such an approach departs from the notion of a sliding scale of warranted services that gradually increases based on the number of children that may benefit from them.
The analysis under s. 1 of the Charter provides that the rights and freedoms in the Charter are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. To demonstrably justify a reasonable limit, the state must show that the objective of the proposed measure is pressing and substantial, and that the means by which the measure is achieved are proportionate. The assessment of the objective is a threshold requirement, analyzed without considering the limit’s scope, the means employed or the effects of the measure. The proportionality requirement will be satisfied where the means are rationally connected to the ends; the measure minimally impairs the right at issue; and the salutary effects of the measure outweigh its deleterious effects.
The fact that s. 23 is internally limited has an important effect on how the justification analysis should proceed. Rather than affecting the stringency of the s. 1 analysis, as suggested by a majority of the Court, the internal limit of s. 23 results in s. 1 having less to do in practice. If done properly, the analysis under s. 23 will account for many of the considerations that would normally arise under s. 1. Applying cost considerations under the s. 23 analysis does not mean that they will never be relevant under s. 1. Although such instances may be rare in the context of a s. 23 Charter right, costs may be a pressing and substantial objective under s. 1 where they are linked to other public policy considerations. However, a measure whose sole purpose is financial, and which infringes Charter rights, can never be justified under s. 1. Decisions about the fair and rational allocation of limited public funds are the bread and butter of government functions and are purely financial. As such, they are not a valid pressing and substantial objective under s. 1.
The first and most important remedy for Charter breaches is a declaration of invalidity. In the context of s. 23, courts must pay particular attention to whether a declaration will be an adequate remedy for a breach. A declaration often strikes the right balance between vindicating Charter rights and affording governments flexibility to meet their s. 23 obligations. This primary remedy is supplemented by Charter damages, which are available where appropriate and just, but are not presumed. Trial judges have significant discretion in determining the appropriate remedy for a Charter breach. However, this discretion is not unfettered, and what is appropriate and just will depend on the circumstances. An award of damages must be fair not only to th