Association des parents de l’école Rose‑des‑vents v. British Columbia (Education)

Association des parents de l’école Rose‑des‑vents v. British Columbia (Education)
Collection
Supreme Court Judgments
Date
2015-04-24
Neutral citation
2015 SCC 21
Report
[2015] 2 SCR 139
Case number
35619
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Rothstein, Marshall; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément
On appeal from
British Columbia
Subjects
Constitutional law
Notes
SCC Case Information: 35619
Decision Content
SUPREME COURT OF CANADA
Citation: Association des parents de l’école Rose-des-vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139
Date: 20150424
Docket: 35619
Between:
Association des parents de l’école Rose-des-vents, Joseph Pagé, in his name and in the name of all citizens of Canada residing west of Main Street in the city of Vancouver whose first language learned and still understood is French, or who have received their primary school instruction in Canada in French, or of whom any child has received or is receiving primary or secondary school instruction in French in Canada, and Conseil scolaire francophone de la Colombie-Britannique
Appellants
and
Minister of Education of British Columbia and Attorney General of British Columbia
Respondents
- and -
Attorney General for Saskatchewan, Attorney General of Alberta, Attorney General of the Northwest Territories, Attorney General of the Yukon Territory, Commissioner of Official Languages of Canada, Commission scolaire francophone, Territoires du Nord-Ouest, Fédération nationale des conseils scolaires francophones, Conseil des écoles fransaskoises and Commission scolaire francophone du Yukon
Interveners
Coram: McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ.
Reasons for Judgment:
(paras 1 to 90)
Karakatsanis J. (McLachlin C.J. and Abella, Rothstein, Moldaver, Wagner and Gascon JJ. concurring)
Association des parents de l’école Rose-des-vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139
Association des parents de l’école Rose-des-vents,
Joseph Pagé, in his name and in the name of all citizens of
Canada residing west of Main Street in the city of Vancouver
whose first language learned and still understood is French, or
who have received their primary school instruction in Canada
in French, or of whom any child has received or is receiving
primary or secondary school instruction in French in Canada, and
Conseil scolaire francophone de la Colombie-Britannique Appellants
v.
Minister of Education of British Columbia and
Attorney General of British Columbia Respondents
and
Attorney General for Saskatchewan,
Attorney General of Alberta,
Attorney General of the Northwest Territories,
Attorney General of the Yukon Territory,
Commissioner of Official Languages of Canada,
Commission scolaire francophone, Territoires du Nord-Ouest,
Fédération nationale des conseils scolaires francophones,
Conseil des écoles fransaskoises and
Commission scolaire francophone du Yukon Interveners
Indexed as: Association des parents de l’école Rose-des-vents v. British Columbia (Education)
2015 SCC 21
File No.: 35619.
2014: December 2; 2015: April 24.
Present: McLachlin C.J. and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ.
on appeal from the court of appeal for british columbia
Constitutional law — Charter of Rights — Minority language educational rights — Substantive equality — Manner in which court should assess whether children of rights holders are provided with educational experience equivalent to that provided in schools of linguistic majority of province or territory — Are issues of costs and practicalities relevant to equivalence analysis? — Whether a finding of lack of equivalence amounts to Charter breach — Whether it is necessary to determine responsibility as between province or territory and school board prior to finding prima facie breach of s. 23 of Canadian Charter of Rights and Freedoms .
Constitutional law — Charter of Rights — Procedure — Hearing — Procedural fairness — Phasing of proceedings — Relevance of pleadings — Petition judge phasing proceedings, leaving determination of responsibility for Charter breach to later phase — Petition judge striking portions of province’s pleadings as irrelevant to first phase — Whether procedures adopted by petition judge procedurally unfair.
L’école élémentaire Rose-des-vents (“RDV”) is the only publicly-funded French-language elementary school for children living west of Main Street in the city of Vancouver. The school is overcrowded and enrollment is growing. RDV is small and the classrooms are significantly smaller than those in other schools. Some have no windows and only three classrooms meet the recommended size for classrooms. The library is very small, the washrooms are inadequate and there is no available flexible space in the school. Roughly 85 percent of students attending RDV are transported to school by bus and over two-thirds of those have bus trips of more than 30 minutes per trip. By contrast, the English-language schools in RDV’s catchment area are larger, with larger classrooms, larger and better playing fields, and more spacious libraries. Most students attending English-language schools in the area live within one kilometre of their schools.
In 2010, parents of children attending RDV challenged their school board and the provincial government, seeking a declaration that the educational services made available to their children were not equivalent to those of the English-language schools in the area and that their minority language education rights under s. 23 of the Charter had been breached. They 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 phase, if necessary. Their hope was that obtaining a declaration would be sufficient to obtain a favourable government response.
The petition judge accepted the request to phase the proceedings, deciding to first assess only whether the children of rights holders were being provided with instruction and facilities equivalent to majority language schools, as guaranteed under s. 23 of the Charter . Prior to undertaking this initial phase of the proceedings, the judge struck certain parts of the province’s pleadings on the grounds that they were not relevant to that phase. At the conclusion of the first phase of the proceedings, the judge issued a declaration that the parents are not being provided the minority language educational facilities guaranteed to them by s. 23 of the Charter . He did not assign responsibility for the failure to meet the constitutional standard. The Court of Appeal allowed the appeal brought by the province. It set aside both the order striking some of the province’s pleadings, and the declaration.
Held: The appeal should be allowed and the petition judge’s declaration reinstated. The award of special costs issued by the petition judge is restored. The matter should be remitted to the Supreme Court of British Columbia for the next phase of the petition, if necessary. Special costs are awarded to the appellants for the appeal proceedings.
Section 23 of the Charter guarantees a “sliding scale” of minority language education rights. At the upper limit of the sliding scale, rights holders are entitled to full educational facilities that are distinct from, and equivalent to, those found in the schools of the majority language group. The focus in giving effect to s. 23 rights should be on substantive equivalence, not on per capita costs and other markers of formal equivalence. What is paramount is that the educational experience of the children of s. 23 rights holders at the upper end of the sliding scale be of meaningfully similar quality to the educational experience of majority language students.
When assessing substantive equivalence, a purposive approach requires a court to consider the educational choices available from the perspective of s. 23 rights holders. The comparator group that will generally be appropriate for that assessment will be the neighbouring majority language schools that represent a realistic alternative for rights holders. The question to be examined is whether reasonable rights-holder parents would be deterred from sending their children to a minority language school because it is meaningfully inferior to an available majority language school. If so, the remedial purpose of s. 23 is threatened. If the educational experience, viewed globally, is sufficiently superior in the majority language schools, that fact could undermine the parents’ desire to have their children educated in the minority language, and thus could lead to assimilation.
The comparative exercise must be alive to the varied factors that reasonable parents use to assess equivalence. The exercise is contextual and holistic, accounting for not only physical facilities, but also quality of instruction, educational outcomes, extracurricular activities, and travel times, amongst other factors. Such an approach is similar to the way parents make decisions regarding their children’s education. The extent to which any given factor will represent a live issue in assessing equivalence will be dictated by the circumstances of each case. The relevant factors 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. If, on balance, the experience is equivalent, the requirements of s. 23 will be met.
Issues of costs and practicalities are considered in the determination of the level of educational services a group of rights holders is entitled to on the sliding scale. It would undermine that analysis to consider costs and practicalities again, after the appropriate level of educational services has already been determined. Accordingly, it is not appropriate for provincial or territorial governments to invoke issues of practicality or cost as part of the inquiry into equivalence. Costs and practicalities may, however, be relevant in attempts to justify a breach of s. 23 , and in attempts to fashion an appropriate and just remedy for a breach.
In the present case, the petition judge applied the correct test to assess equivalence. He comprehensively and holistically assessed the relevant factors and compared RDV to the English-language schools in the relevant catchment area in Vancouver. In the determination of overall substantive equivalence, he concluded that the programs offered at RDV were not so superior as to offset its inadequate facilities, overcrowding and long travel times. In his opinion, the disparity between the minority and majority language schools was such as to limit enrollment and contribute to assimilation. There is no error in principle in the petition judge’s analysis.
The declaration issued by the petition judge represents the equivalent of a declaration of a prima facie breach of s. 23 , subject to the future determination of responsibility, justification for the breach (if applicable), and positive remedy. Where the children of s. 23 rights holders are entitled to an educational experience equivalent to that of majority language children, there is no difference between a finding of a lack of equivalence and a finding that the rights holders have not received the services to which they are entitled under s. 23 . However, since responsibility for the breach has not yet been assigned ― and leaving open the possibility that the responsible party or parties may seek to justify the breach ― it cannot be said that the judge’s declaration constitutes a complete finding of a Charter violation.
Where a proceeding has been formally phased to separate the question of substantive equivalence from other elements of the s. 23 analysis, evidence that does not assist in answering that question would normally not be relevant. Considered from this perspective, the petition judge was entitled to strike the portions of the province’s pleadings as they were not relevant to the inquiry into substantive equivalence.
Cases Cited
Applied: Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; discussed: Mahe v. Alberta, [1990] 1 S.C.R. 342; referred to: Assn. des Parents Francophones (Colombie-Britannique) v. British Columbia (1996), 27 B.C.L.R. (3d) 83; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6, [2006] 1 S.C.R. 256; Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201; Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87; Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303; British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; Victoria (City) v. Adams, 2009 BCCA 563, 100 B.C.L.R. (4th) 28; Arsenault-Cameron v. Prince Edward Island (1997), 149 Nfld. & P.E.I.R. 96; Marchand v. Simcoe County Board of Education (1986), 12 C.P.C. (2d) 140.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 23 , 24(1) .
Authors Cited
Bastarache, Michel. “Education Rights of Provincial Official Language Minorities (Section 23)”, in G.-A. Beaudoin and E. Ratushny, eds., The Canadian Charter of Rights and Freedoms , 2nd ed. Toronto: Carswell, 1989, 687.
Canada. Royal Commission on Bilingualism and Biculturalism. Report of the Royal Commission on Bilingualism and Biculturalism, Book II, Education. Ottawa: Queen’s Printer, 1968.
Doucet, Michel. “L’article 23 de la Charte canadienne des droits et libertés ” (2013), 62 S.C.L.R. (2d) 421.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp. Toronto: Thomson/Carswell, 2007 (updated 2014, release 1).
Landry, Rodrigue, and Réal Allard. “L’exogamie et le maintien de deux langues et de deux cultures: le rôle de la francité familioscolaire” (1997), 23 Revue des sciences de l’éducation 561.
Power, Mark, and Pierre Foucher. “Language Rights and Education”, in G.-A. Beaudoin and E. Mendes, eds., Canadian Charter of Rights and Freedoms , 4th ed. Markham, Ont.: LexisNexis Canada, 2005, 1095.
APPEAL from judgments of the British Columbia Court of Appeal (Saunders, Bennett and Hinkson JJ.A.), 2013 BCCA 407, 49 B.C.L.R. (5th) 246, 342 B.C.A.C. 251, 585 W.A.C. 251, 367 D.L.R. (4th) 387, 291 C.R.R. (2d) 106, 44 C.P.C. (7th) 122, [2014] 1 W.W.R. 1, [2013] B.C.J. No. 2057 (QL), 2013 CarswellBC 2799 (WL Can.); and 2014 BCCA 40, 54 B.C.L.R. (5th) 79, 350 B.C.A.C. 142, [2014] 4 W.W.R. 528, 58 C.P.C. (7th) 230, [2014] B.C.J. No. 155 (QL), 2014 CarswellBC 225 (WL Can.), setting aside decisions of Willcock J., 2011 BCSC 1495, 21 C.P.C. (7th) 111, [2011] B.C.J. No. 2096 (QL), 2011 CarswellBC 3303 (WL Can.); 2012 BCSC 1614, 39 B.C.L.R. (5th) 144, 270 C.R.R. (2d) 220, [2013] 2 W.W.R. 528, [2012] B.C.J. No. 2247 (QL), 2012 CarswellBC 3373 (WL Can.); and 2013 BCSC 1111, 49 B.C.L.R. (5th) 189, [2013] 10 W.W.R. 602, 40 C.P.C. (7th) 274, 61 Admin. L.R. (5th) 310, [2013] B.C.J. No. 1352 (QL), 2013 CarswellBC 1871 (WL Can.). Appeal allowed.
Nicolas M. Rouleau and Joseph Pagé, for the appellants Association des parents de l’école Rose-des-vents et al.
Robert W. Grant, Q.C., Jean-Pierre Hachey, Mark C. Power and David P. Taylor, for the appellant Conseil scolaire francophone de la Colombie-Britannique.
Leonard T. Doust, Q.C., Karrie Wolfe and Warren B. Milman, for the respondents.
Alan F. Jacobson and Barbara C. Mysko, for the intervener the Attorney General for Saskatchewan.
Randy Steele, for the intervener the Attorney General of Alberta.
François Baril, for the intervener the Attorney General of the Northwest Territories.
Maxime Faille, Guy Régimbald and Pippa Lawson, for the intervener the Attorney General of the Yukon Territory.
Christine Ruest Norrena and Isabelle Bousquet, for the intervener the Commissioner of Official Languages of Canada.
Roger J. F. Lepage and Francis P. Poulin, for the interveners Commission scolaire francophone, Territoires du Nord-Ouest, Fédération nationale des conseils scolaires francophones, Conseil des écoles fransaskoises and Commission scolaire francophone du Yukon.
The judgment of the Court was delivered by
[1] Karakatsanis J. — This appeal reflects a new generation of issues for minority language education rights. When is the quality of a minority language school education equivalent to that of the majority language schools? What factors go into determining equivalence?
[2] These questions lie at the heart of this appeal. They engage s. 23 of the Canadian Charter of Rights and Freedoms , the minority language education provision that guarantees minority language rights holders the right to have their children receive primary and secondary school instruction in English or French. While this Court has considered this Charter right on several occasions over the past 30 years, the present appeal illustrates the evolution of minority language education disputes since the adoption of the Charter : rather than focusing on a group’s initial entitlement to a given level of minority language educational services, this appeal asks how a court may determine whether a group is, in fact, receiving its entitlement.
[3] It is well established that where the number of children of minority language rights holders warrants the highest level of services envisioned by s. 23 , those rights holders are entitled to instruction and educational facilities equivalent in quality to that provided to the official language majority of the province or territory. This Court’s past jurisprudence has recognized that, because of the remedial nature of s. 23 rights, equality may mean something different than formal equality. It requires substantive equality. In this appeal, we are called upon to give guidance on how to measure this equivalence. We are also asked to determine the significance of a finding of lack of equivalence, and whether it amounts to a breach of s. 23 of the Charter .
[4] In this case, the parents of children attending a French-language elementary school challenged their school board and the provincial government, and sought a declaration that the educational services were not equivalent to those of the English-language schools in the area. In my view, they were entitled to that declaration. As a result, I would allow the appeal and restore the declaration of the petition judge.
I. Facts
[5] L’école élémentaire Rose-des-vents (RDV) is the only publicly-funded French-language elementary school for students living west of Main Street in the city of Vancouver. It was established in 2001, five years after the Supreme Court of British Columbia ruled that the number of children of rights holders in the geographic area of Vancouver/Lower Mainland and Victoria warranted the highest measure of management and control contemplated under s. 23 (Assn. des Parents Francophones (Colombie-Britannique) v. British Columbia (1996), 27 B.C.L.R. (3d) 83). The court concluded that the B.C. legislature could no longer delay putting in place an appropriate minority language education scheme.
[6] As the petition judge held, enrollment at RDV has increased since 2001 and the school, which currently shares facilities with a French-language secondary school, has become increasingly overcrowded. In 2012, RDV had a nominal capacity of 215 students and an operating capacity of 199 students. Enrollment in 2011 was 344 students, and enrollment is growing.
[7] RDV is small, with narrow hallways and no coat hooks or lockers. There is a lack of storage space. This is said to have contributed to the spread of lice among students. There is no available flexible space in the school. The washrooms are inadequate. The library is very small, and the classrooms are significantly smaller than those in other schools. Only three classrooms meet the recommended size for classrooms. Two classrooms have no windows. The playground is divided into small sections. Due to the space sharing arrangement with the secondary school, the space made available to RDV will likely diminish in the coming years.
[8] By contrast, the English-language schools in RDV’s catchment area are larger, with larger classrooms, larger and better playing fields, and more spacious libraries.
[9] Of the 344 students attending RDV in 2012, 293 were transported to school by bus. None of those elementary school students live within the one kilometre “walk limit”. Over two thirds of these students spend more than 30 minutes per bus trip. By contrast, most students attending English-language schools in the area live within one kilometre of their schools.
[10] The B.C. Minister of Education has acknowledged that RDV is operating “over capacity”. The construction of a new French-language school in Vancouver has been a “high priority” of the Ministry of Education at least since 2008 (A.R., vol. II, at p. 104). The Conseil scolaire francophone de la Colombie-Britannique (CSF), the French-language school board that oversees RDV, acknowledges the overcrowding, the substandard facilities, and the long bus rides.
[11] In 2010, the Association des parents de l’école Rose-des-vents and Joseph Pagé, on his own behalf and as a representative of parents of children enrolled at RDV (“the Parents”), filed a petition naming as respondents the Minister of Education, the Attorney General of British Columbia (collectively, “the Province”), and the CSF.[1] The petition sought a declaration that the Parents’ minority language education rights under s. 23 of the Charter had been breached. The Parents argued that the RDV school facilities were not equivalent to those of the English-language schools in the area. However, they sought to avoid the question of assigning responsibility for the alleged inadequacies during the first stage of the proceedings. They hoped that a declaration at the first stage would be sufficient to obtain a favourable government response.
[12] The CSF agrees with the Parents that the facilities available to rights holders in the RDV catchment area are inadequate. However, it blames the inadequacies on insufficient funding from the Province, which funds capital expenditures separately from regular operating expenditures. The Province denies that the RDV facilities are deficient, but argues that if they are, the CSF, as the agency charged with exercising management and control of the minority language education system on behalf of rights holders, bears responsibility for any inadequacies.
[13] In a separate action commenced later in 2010, the CSF, the Fédération des parents francophones de Colombie-Britannique,[2] and 33 individual parents initiated proceedings against the Province, alleging province-wide breaches of s. 23 of the Charter and raising systemic challenges to the capital funding system put in place by the Ministry of Education as it applies to minority language education. While that action is not a subject of this appeal, it may resolve some of the outstanding issues raised in this petition.
II. Judicial History
A. Supreme Court of British Columbia
[14] The present matter constitutes the first phase of what may be a multi-phase proceeding. Justice Willcock, then of the Supreme Court of British Columbia, presided over the petition. He decided to phase the proceedings in light of the declaratory nature of the relief sought by the Parents, and the possibility that the outcome of the first phase might lead to a resolution of the dispute (2011 BCSC 1495, 21 C.P.C. (7th) 111). In doing so, he took into consideration the efficient use of judicial resources and the critical need for timely compliance in s. 23 cases to avoid the risks of assimilation caused by delay, relying on this Court’s decision in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 29.
[15] This appeal concerns the first phase. The judge was to assess whether the Parents were being provided with instruction and facilities equivalent to majority language schools, as guaranteed under s. 23 of the Charter . Prior to undertaking this first phase, the judge struck certain parts of the Province’s pleadings on the grounds that they were not relevant to the first phase of proceedings (2011 BCSC 1495). As well, during the course of the hearing, the Province sought an adjournment in order to bring further evidence on various points, including responsibility for any breach of s. 23 . The judge denied this adjournment request (2012 BCSC 1206).
[16] In his reasons for judgment at the conclusion of the first phase of proceedings, the judge found a lack of equivalence between the school facilities afforded to the Parents and the facilities available to majority language students in the same area (2012 BCSC 1614, 39 B.C.L.R. (5th) 144). He found that, despite the good quality of instruction and academic outcomes, the RDV facilities are inadequate, and that the long travel times of many students are not offset by superior facilities or programs. He found that the disparity limited enrollment and contributed to assimilation. He concluded that the facilities are inadequate to meet the standard of equivalence required by s. 23 of the Charter . He did not assign responsibility for the failure to meet the constitutional standard.
[17] The judge issued “a declaration in favour of the parents . . . that they are not being provided the minority language educational facilities guaranteed to them by s. 23 of the Canadian Charter of Rights and Freedoms ” (para. 160). He also retained jurisdiction over the litigation to hear further applications, should the outcome of the first phase of the proceedings be insufficient to facilitate the resolution of the issues between the parties.
[18] The judge awarded special costs to the Parents throughout, and to the CSF in relation to all proceedings on or after November 4, 2011 (2013 BCSC 1111, 49 B.C.L.R. (5th) 189). Though he did not find the Province’s conduct worthy of reproof or rebuke, the judge concluded that the petitioners and the CSF were entitled to special costs as public interest litigants.
B. Court of Appeal for British Columbia
[19] The Court of Appeal for British Columbia allowed the appeal brought by the Province. Hinkson J.A. (Saunders and Bennett JJ.A. concurring) concluded that certain paragraphs struck by the judge should not have been struck, as they were not clearly irrelevant to the first phase of proceedings (2013 BCCA 407, 49 B.C.L.R. (5th) 246). The Court of Appeal was of the view that issues of costs and practicalities may be relevant to the equivalence analysis performed as part of the first phase. The Court of Appeal, relying on the judge’s March 2012 clarification of his 2011 phasing order, also concluded that the reasons for judgment went beyond what the judge said he intended to resolve as part of the first phase of the proceedings. This had the effect of unfairly precluding the Province from obtaining further evidence to support its defence that any disparity in the facilities did not amount to a breach of the Parents’ s. 23 rights.
[20] The Court of Appeal set aside the order striking certain paragraphs of the Province’s pleadings. It also set aside Justice Willcock’s declaration dated October 31, 2012, and ordered that the petition be remitted to the Supreme Court of British Columbia. The Court of Appeal also set aside the award of special costs (2014 BCCA 40, 54 B.C.L.R. (5th) 79).
III. Issues
[21] This appeal raises both substantive and procedural issues.
[22] First, how should a court assess the substantive equivalence of a minority language school facility as compared to majority language school facilities, for the purpose of determining whether the minority language facility complies with s. 23 of the Charter ? In particular, are issues of costs and practicalities relevant to the s. 23 equivalence analysis? Is it necessary to determine responsibility, as between a province or territory and a school board, prior to finding a prima facie breach of s. 23 ?
[23] Second, were the procedures adopted by the petition judge in managing the proceedings procedurally unfair?
IV. Analysis
A. Equivalence Under Section 23 of the Charter
(1) Basic Principles and Interpretation of Section 23
[24] Section 23 of the Charter guarantees minority language rights holders the right to have their children educated in English or French, as the case may be:
23. (1) Citizens of Canada
(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or
(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,
have the right to have their children receive primary and secondary school instruction in that language in that province.
(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.
(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province
(a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and
(b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.
[25] Section 23 is a remedial right that differs from many other Charter rights. The provision is an important marker of Canada’s commitment to bilingualism, and to the bicultural founding character of this country. It imposes a constitutional duty on the provinces and territories to provide minority language education to children of s. 23 rights holders where numbers warrant. This commitment sets Canada apart among nations, as Justice Vickers of the Supreme Court of British Columbia explained in Assn. des Parents Francophones:
From its genesis, Canada brings to the world a unique history and culture of cooperation and tolerance. It is rooted in the commitment of French and English people, who had earlier been separated by geography, a history of divisive disputes, language and culture, to live together, to work together and to share the resources of a new nation. Section 23 restates a fundamental part of that commitment relating to language and culture and acknowledges the vision and faith of our nation’s pioneers. Our distinct place in the world’s family of nations is dependent on governments honouring the commitment entered into more than two centuries ago which has been reaffirmed by this generation of Canadians through the enactment of particular provisions of the Canadian Charter of Rights and Freedoms . [para. 24]
[26] Section 23 is concerned with the preservation of culture as well as language. As the Royal Commission on Bilingualism and Biculturalism noted, “[l]anguage and culture are not synonymous, but the vitality of the language is a necessary condition for the complete preservation of a culture” (Report of the Royal Commission on Bilingualism and Biculturalism, Book II, Education (1968), at p. 8). As this Court noted in Mahe v. Alberta, [1990] 1 S.C.R. 342, at p. 362, “any broad guarantee of language rights, especially in the context of education, cannot be separated from a concern for the culture associated with the language. Language is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it”: see also M. Bastarache, “Education Rights of Provincial Official Language Minorities (Section 23)”, in G.-A. Beaudoin and E. Ratushny, eds., The Canadian Charter of Rights and Freedoms (2nd ed. 1989), 687, at p. 695.
[27] Section 23 was 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: Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at para. 26; Mahe, at p. 364. Minority language education is crucial to the maintenance of that partnership:
For a minority group, equal partnership means the possibility of preserving its linguistic and cultural identity. . . . The gradual loss of the mother tongue is inevitable without some institution to give formal instruction in the language and to enhance its prestige by according it some social recognition. At the same time, minority-language schools can adapt the curriculum to stress the cultural heritage of the minority group. [Report of the Royal Commission, at pp. 8-9]
Indeed, in minority language communities, schools are a primary instrument of linguistic, and thus cultural, transmission: Mahe, at pp. 362-63. In many such communities, demographic changes and the shifting role of religious establishments have turned local minority language schools into vital community centres (M. Power and P. Foucher, “Language Rights and Education”, in G.-A. Beaudoin and E. Mendes, eds., Canadian Charter of Rights and Freedoms (4th ed. 2005), 1095, at pp. 1100-1101).
[28] One distinctive feature of s. 23 is that it is particularly vulnerable to government inaction or delay. Delay in implementing this entitlement or in addressing s. 23 violations can result in assimilation and can undermine access to the right itself. As this Court has noted before, for every school year that governments do not meet their obligations under s. 23, there is an increased likelihood of assimilation and cultural erosion (Doucet-Boudreau, at para. 29). Left neglected, the right to minority language education could be lost altogether in a given community. Thus, there is a critical need both for vigilant implementation of s. 23 rights, and for timely compliance in remedying violations.
(2) “Numbers Warrant” and the “Sliding Scale” of Section 23 Rights
[29] The s. 23 right to equivalent educational facilities for minority language rights holders where numbers warrant provides a means to counteract the assimilation that occurs when the children of rights holders attend majority language schools. In Mahe, this Court explained that s. 23 guaranteed a “sliding scale” of minority language education rights (p. 366). At the upper limit of the sliding scale, numbers will warrant the provision of the highest level of services to the minority language community. In such cases, rights holders are entitled to full educational facilities that are distinct from, and equivalent to, those found in the schools of the majority language group (Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839, at pp. 854-55; Mahe, at p. 378). These facilities must be accessible and, where possible, located in the community where the children reside (Arsenault-Cameron, at para. 56). The upper threshold of the sliding scale can include separate minority language school boards (Mahe, at p. 374).
[30] In Mahe, this Court held that costs and practicalities are relevant to the determination of where, on the sliding scale of s. 23 rights, a given minority language community falls, although pedagogical concerns will generally assume more weight (pp. 384-85). Once it is determined that the number of children mandates the highest level of services, s. 23 requires that the quality of services be substantively equivalent to that offered to the majority language students. It is also imperative that minority language parents possess a measure of management and control over the educational facilities in which their children are taught (pp. 371-72). This management and control is vital to ensuring that the minority language and culture flourish in the educational setting.
[31] As this Court noted in Mahe, “it should be self-evident that in situations where the [highest] degree of management and control is warranted the quality of education provided to the minority should in principle be on a basis of equality with the majority” (p. 378). That being said, the education provided need not be identical. Section 23 is not meant to adopt a formal vision of equality that would focus on treating the majority and minority official language groups alike. In Arsenault-Cameron, this Court cautioned against applying to a s. 23 analysis the accessibility and pedagogy standards that apply to the majority language group, given the importance of s. 23 rights to the flourishing and preservation of the minority language and culture (paras. 39-40 and 49-51).
(3) What Is the Test for Equivalence?
[32] As noted above, a central aim of s. 23 is “to correct, on a national scale, the historically progressive erosion of official language groups”: Arsenault-Cameron, at para. 26; see also Mahe, at p. 364. Because of the remedial nature of s. 23, and the specific challenges relating to the protection of minority language and culture and the prevention of assimilation, equivalence in the context of s. 23 may mean something other than formal equivalence.
[33] The focus in giving effect to s. 23 rights, then, should be on substantive equivalence, not on per capita costs and other markers of formal equivalence. In the present case, there is evidence that the CSF receives a 15% premium in its operational funding from the Province, as compared to other school boards in the province. Given economies of scale, higher per capita costs for a minority language board or school are not unexpected (Mahe, at p. 378). However, there is no particular per capita number that will satisfy the requirements of s. 23 in any given instance. Rather, what is paramount is that the educational experience of the children of s. 23 rights holders at the upper end of the sliding scale be of meaningfully similar quality to the educational experience of majority language students. As this Court noted in Arsenault-Cameron, “[s]ection 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” (para. 31).
(a) What Analytical Perspective Is Relevant in Assessing Equivalence?
[34] The first step in any s. 23 analysis is to determine the entitlement of the parents, who are the holders of the right. This requires assessing what level of service the number of rights holders in a given community warrants. In the present case, a court has previously determined, and the parties accept, that 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. This being established, the issue in this case is how to determine whether the Parents have, in fact, been provided the substantive equivalence to which they are entitled.
[35] When assessing equivalence, a purposive approach requires a court to consider the educational choices available from the perspective of s. 23 rights holders. Would reasonable rights-holder parents be deterred from sending their children to a minority language school because it is meaningfully inferior to an available majority language school? If so, the p