Mahe v. Alberta

Mahe v. Alberta
Collection
Supreme Court Judgments
Date
1990-03-15
Report
[1990] 1 SCR 342
Case number
20590
Judges
Dickson, Robert George Brian; Wilson, Bertha; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
Alberta
Subjects
Constitutional law
Notes
SCC Case Information: 20590
Decision Content
Mahe v. Alberta, [1990] 1 S.C.R. 342
Jean‑Claude Mahe, Angeline Martel, Paul Dubé and
the Association de l'école Georges et Julia Bugnet Appellants
v.
Her Majesty The Queen in right
of the province of Alberta Respondent
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General for New Brunswick,
the Attorney General of Manitoba,
the Attorney General for Saskatchewan,
the Association canadienne-française de l'Alberta,
the Commissioner of Official Languages for Canada,
Alliance Quebec, Alliance for Languages Communities
in Quebec, the Association canadienne-française de
l'Ontario, the Association française des conseils
scolaires de l'Ontario, the Association des
enseignantes et des enseignants franco‑ontariens,
the Quebec Association of Protestant School Boards,
the Edmonton Roman Catholic Separate School District
No. 7 and the Alberta School Trustees' Association Interveners
indexed as: mahe v. alberta
File No.: 20590.
1989: June 14; 1990: March 15.
Present: Dickson C.J. and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for alberta
Constitutional law ‑‑ Charter of Rights ‑‑ Minority Language Educational Rights ‑‑ Whether the rights which s. 23 of the Canadian Charter of Rights and Freedoms mandates, depending upon the numbers of students, include a right to to "management and control" over the minority language facilities and instruction ‑‑ If so, whether the number of students in the Edmonton area sufficient to invoke this right ‑‑ Meaning of the phrase "management and control".
Constitutional law ‑‑ Charter of Rights ‑‑ Minority Language Educational Rights ‑‑ Whether the Alberta School Act and the regulations passed thereunder inconsistent with s. 23 of the Canadian Charter of Rights and Freedoms ‑‑ If so, whether such inconsistency justifiable under s. 1 of the Charter ‑‑ School Act, R.S.A. 1980, c. S‑3, ss. 13, 158, 159 ‑‑ French Language Regulation, Alta. Reg. 490/82.
Constitutional law ‑‑ Charter of Rights ‑‑ Preservation of rights respecting certain schools ‑‑ Section 23 of the Canadian Charter of Rights and Freedoms conferring upon minority language parents in the Edmonton area the rights to management and control over the minority language facilities and instruction ‑‑ Whether the rights conferred by s. 23 inconsistent with the "right or privilege with respect to separate schools" guaranteed under s. 17 of the Alberta Act ‑‑ Canadian Charter of Rights and Freedoms, ss. 23 , 29 ‑‑ Alberta Act, S.C. 1905, c. 3, s. 17 ‑‑ Constitution Act, 1867, s. 93(1) .
The appellants claim that their rights under s. 23 of the Canadian Charter of Rights and Freedoms are not satisfied by the existing educational system in Edmonton nor by the legislation under which it operates. In particular, the appellants argue that s. 23 guarantees the right, in Edmonton, to the "management and control" of a minority‑language school. At the time of the trial, in the Edmonton area there were approximately 116,800 students enrolled in the public and separate school systems and approximately 2,900 citizens whose first language learned and still understood was French. These citizens had approximately 4,130 children aged from birth to 19 years, of whom 3,750 were between 5 and 19 years of age. In 1984, the Roman Catholic Separate School Board established a Francophone school under the direction of the Edmonton Roman Catholic Separate School District No. 7. By 1985, the enrollment at the school was 242 students from kindergarten to grade 6, with room for more, and 73 students in the grade 7 and 8 immersion program. The appellants brought an action against the province seeking the following declarations: (1) that there is a sufficient number of children of the French linguistic minority in the Edmonton area to warrant publicly‑funded French language instruction and facilities pursuant to s. 23 of the Charter ; (2) that the rights granted pursuant to s. 23 entitle the appellants to have their children educated in facilities which are equivalent to those provided to English speaking children, and to be granted powers equivalent to those granted parents of English speaking children; and (3) that the Alberta School Act and the Regulation 490/82 passed thereunder, in so far as they are inconsistent with s. 23, are of no force or effect. Both the Court of Queen's Bench and the Court of Appeal accepted many of the appellants' general arguments but declined to grant the specific declarations which the appellants requested. In this appeal, the appellants seek to determine whether the educational system in the Edmonton area satisfies the demands of s. 23 . The main issue is the degree, if any, of "management and control" of a French language school which should be accorded to the minority language parents in Edmonton.
Held: The appeal should be allowed.
Section 23 of the Charter
The general purpose of s. 23 of the Charter is to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language flourishes, as far as possible, in provinces where it is not spoken by the majority of the population. The section aims at achieving this goal by granting minority language educational rights to minority language parents throughout Canada. Section 23 is also designed to correct, on a national scale, the progressive erosion of minority official language groups and to give effect to the concept of the `equal partnership' of the two official language groups in the context of education. In order to fulfil the purpose of s. 23 , the section should be viewed as providing a general right to minority language instruction with paras. (a) and (b) of subs. (3) qualifying this general right. Section 23 encompasses a "sliding scale" of requirements, with subs. (3)(b) indicating the upper level of the range of possible institutional requirements which may be mandated by s. 23 (a government may, however, provide more than the minimum required by s. 23 ) and the term "instruction" in subs. (3)(a) indicating the lower level. The "sliding scale" approach guarantees whatever type and level of rights and services is appropriate under s. 23 in order to provide minority language instruction for the particular number of students involved.
Where the numbers warrant, s. 23 confers upon minority language parents a right to management and control over the educational facilities in which their children are taught. Such management and control is vital to ensure that their language and culture flourish. The English and the French versions of s. 23(3)(b), read together, support such an interpretation. The measure of management and control required by s. 23 may, in some circumstances and depending on the numbers of students to be served, warrant an independent school board. An independent school board, however, is not necessarily the best means of fulfilling the purpose of s. 23 . What is essential to satisfy that purpose is that the minority language group have control over those aspects of education which pertain to or have an effect upon their language and culture. So, where the number of s. 23 students does not warrant granting an independent school board (the maximum level of management and control), but is significant enough to warrant moving towards the upper level of the sliding scale, it may be sufficient to require linguistic minority representation on an existing school board. In this latter case: (1) the representation of the linguistic minority on local boards or other public authorities which administer minority language instruction or facilities should be guaranteed; (2) the number of minority language representatives on the board should be, at a minimum, proportional to the number of minority language students in the school district, i.e., the number of minority language students for whom the board is responsible; (3) the minority language representatives should have exclusive authority to make decisions relating to the minority language instruction and facilities, including: (a) expenditures of funds provided for such instruction and facilities; (b) appointment and direction of those responsible for the administration of such instruction and facilities; (c) establishment of programs of instruction; (d) recruitment and assignment of teachers and other personnel; and (e) the making of agreements for education and services for minority language pupils.
Where the above degree of management is warranted, the quality of education provided to the minority language group should in principle be on a basis of reasonable equality with the majority, although it need not be identical, and public funding adequate for this purpose must be provided. The persons who will exercise the measure of management and control are minority language parents or persons such parents designate as their representatives. Finally, other degrees of management and control may be required in situations where the numbers do not justify granting linguistic minority representation on an existing school board. What is required in any case will turn on what the "numbers warrant". The relevant figure for s. 23 purposes is the number of persons who will eventually take advantage of the contemplated program or facility. Two factors should be taken into account in determining what s. 23 demands: (1) the services appropriate, in pedagogical terms, for the number of students involved; and (2) the cost of the contemplated services.
There are sufficient numbers of s. 23 students in the Edmonton area to justify, in both pedagogical and financial terms, the creation of an independent school, such as the one presently existing as well as providing for a continuing course of primary and secondary schooling. The numbers of students likely to attend Francophone schools in Edmonton, however, are insufficient to mandate under s. 23 the establishment of an independent Francophone school board. Accordingly, the minority language parents should enjoy the right to representation on the separate school board and the degree of management and control as specified above. As these rights are not provided at the present time, the Province must enact legislation (and regulations, if necessary) that in all respects is consistent with the provisions of s. 23 of the Charter .
Section 29 of the Charter and Section 17 of the Alberta Act
The rights to management and control conferred by s. 23 of the Charter upon minority language parents do not infringe a "right or privilege with respect to separate schools" as guaranteed under s. 17 of the Alberta Act. The powers of management and control accorded minority language groups do not affect any rights in respect of the denominational aspects of education or related non‑denominational aspects. Rather, the transfer of the powers in respect of management and control amounts only to the regulation of a non‑denominational aspect of education, namely, the language of instruction.
School Act and Regulation 490/82
Sections 13, 158 and 159 of the School Act do not prevent authorities from acting in accordance with the Charter , but neither do they guarantee that such compliance will occur. A declaration of invalidity, however, would not help appellants' position. First, if the legislation is invalidated, the public authorities in Alberta would presumably be temporarily precluded from exercising their powers so as to change the existing system in order to comply with s. 23 . Second, the real obstacle to the realization of appellants' rights is not the existing legislation but the inaction of the public authorities. To date, the legislature of Alberta has failed to discharge its s. 23 obligation. It should delay no longer in putting into place the appropriate minority language education scheme.
Regulation 490/82, which mandates that a minimum of approximately 20 per cent of class time be spent on English language education, may impede the achievement of the purpose of s. 23 . The appellants' rights under s. 23 include a general right for their children to be instructed entirely in the French language. Although a certain amount of mandatory English language instruction may be a reasonable limitation on s. 23 , the respondent has not proven that a full 300 minutes a week of English instruction is necessary in Francophone schools. The Regulation, therefore, is not saved by s. 1 of the Charter .
Cases Cited
Referred to: Reference Re Education Act of Ontario and Minority Language Education Rights (1984), 10 D.L.R. (4th) 491; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66; Lavoie v. Nova Scotia (Attorney General) (1989), 91 N.S.R. (2d) 184; Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness In Education, [1986] 1 S.C.R. 549; Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Commission des Écoles Fransaskoises v. Saskatchewan (1988), 48 D.L.R. (4th) 315; Reference Re Minority Language Educational Rights (P.E.I.) (1988), 69 Nfld. & P.E.I.R. 236; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377; Brophy v. Attorney‑General of Manitoba, [1895] A.C. 202; Ottawa Roman Catholic Separate Schools Trustees v. Mackell, [1917] A.C. 62; Ottawa Roman Catholic Separate Schools Trustees v. Quebec Bank, [1920] A.C. 230; R. v. Mercure, [1988] 1 S.C.R. 234.
Statutes and Regulations Cited
Alberta Act, S.C. 1905, c. 3 [reprinted in R.S.C., 1985, App. II, No. 20], s. 17.
Canadian Charter of Rights and Freedoms, ss. 15 , 23 , 24(1) , 27 , 29 .
Constitution Act, 1867, s. 93(1) .
Constitution Act, 1982, s. 52 .
French Language Regulation, Alta. Reg. 490/82.
School Act, R.S.A. 1980, c. S‑3, ss. 13, 158, 159.
School Act, S.A. 1988, c. S‑3.1, ss. 4, 5, 6.
Societies Act, R.S.A. 1980, c. S‑18.
Authors Cited
Canada. Royal Commission on Bilingualism and Biculturalism. Report of the Royal Commission on Bilingualism and Biculturalism, vol. 2. Ottawa: Queen's Printer, 1968.
APPEAL from a judgment of the Alberta Court of Appeal (1987), 54 Alta. L.R. (2d) 212, 80 A.R. 161, 42 D.L.R. (4th) 514, [1987] 6 W.W.R. 331, 33 C.R.R. 207, affirming a judgment of the Alberta Queen's Bench (1985), 39 Alta. L.R. (2d) 215, 64 A.R. 35, 22 D.L.R. (4th) 24, 22 C.R.R. 90. Appeal allowed.
G. Brent Gawne and Mary T. Moreau, for the appellants.
J. C. Major and B. N. Locke, for the respondent.
E. D. D. Tavender, Q.C., K. M. Eidsvik and Thomas‑Louis Fortin, for the intervener the Attorney General of Canada.
John Cavarzan, for the intervener the Attorney General for Ontario.
Jean‑Yves Bernard and Luc Leblanc, for the intervener the Attorney General of Quebec.
Gabriel Bourgeois, for the intervener the Attorney General for New Brunswick.
Donna J. Miller and Deborah Carlson, for the intervener the Attorney General of Manitoba.
Robert G. Richards, for the intervener the Attorney General for Saskatchewan.
Michel Bastarache and Martine Richard, for the intervener the Association canadienne-française de l'Alberta.
Robert J. Buchan, for the intervener the Commissioner of Official Languages for Canada.
Stephen A. Scott and Kathleen Weil, for the intervener Alliance Quebec.
Paul S. Rouleau, for the interveners the Association canadienne-française de l'Ontario, the Association française des conseils scolaires de l'Ontario and the Association des enseignantes et des enseignants franco‑ontariens.
Colin K. Irving and Allan R. Hilton, for the Quebec Association of Protestant School Boards.
Judith C. Anderson, for the interveners the Edmonton Roman Catholic Separate School District No. 7 and the Alberta School Trustees' Association.
//The Chief Justice//
The judgment of the Court was delivered by
The Chief Justice ‑‑ In this appeal the Court is asked to determine whether the educational system in the city of Edmonton satisfies the demands of s. 23 of the Canadian Charter of Rights and Freedoms . The section reads:
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.
Section 23 is one component in Canada's constitutional protection of the official languages. The section is especially important in this regard, however, because of the vital role of education in preserving and encouraging linguistic and cultural vitality. It thus represents a linchpin in this nation's commitment to the values of bilingualism and biculturalism.
The appellants claim that their rights under s. 23 are not satisfied by the existing educational system in Edmonton nor by the legislation under which it operates, resulting in an erosion of their cultural heritage, contrary to the spirit and intent of the Charter . In particular, the appellants argue that s. 23 guarantees the right, in Edmonton, to the "management and control" of a minority‑language school ‑‑ that is, to a Francophone school run by a Francophone school board. Our task then is to determine the meaning of s. 23 of the Charter .
Constitutional Questions
The following constitutional questions, stated by order of the Court, indicate the range of the issues which this appeal raises:
1.Have the rights of the linguistic minority population in metropolitan Edmonton to minority language educational facilities pursuant to s. 23(3) (b) of the Canadian Charter of Rights and Freedoms been infringed or denied?
2.Does the right to minority language instruction and educational facilities pursuant to s. 23(3) (a) and s. 23(3) (b) of the Charter include management and control by the minority of:
(a)the instruction?
(b)the educational facilities?
If so, what is the nature and extent of such management and control?
3.(a)Are the School Act, R.S.A. 1980, c. S‑3, and the regulations passed thereunder inconsistent with or in contravention of s. 23 of the Charter ?
(b)If so, is such inconsistency or contravention justified under s. 1 of the Charter ?
4.Are the rights guaranteed by s. 23 of the Charter affected by the provisions of s. 93 of the Constitution Act, 1867 , s. 29 of the Charter and s. 17 of the Alberta Act? If so, how?
The Parties and Interveners
The appellants Jean‑Claude Mahe and Paul Dubé are parents whose first language learned and still understood is French. The appellant Angeline Martel is a parent who received her primary school instruction in French. All three have school age children, and thus qualify under s. 23(1) of the Charter as persons who, subject to certain limitations, "have the right to have their children receive primary and secondary school instruction" in the language of the linguistic minority population of the province ‑‑ in this case, the French language. They may therefore conveniently be called "s. 23 parents", and their children "s. 23 students". The fourth appellant, the Association de l'école Georges et Julia Bugnet, is an incorporated society whose prime objective is the encouragement of French language education in the province of Alberta.
A number of interveners were granted status in this appeal: the Attorneys General of Canada, Ontario, Québec, New Brunswick, Manitoba, and Saskatchewan; Alliance Quebec; the Edmonton Roman Catholic Separate School District No. 7; the Alberta School Trustees' Association; the Association canadienne‑française de l'Alberta; the Quebec Association of Protestant School Boards; the Association canadienne-française de l'Ontario; the Association française des conseils scolaires de l'Ontario; the Association des enseignantes et des enseignants franco‑ontariens; and, the Commissioner of Official Languages for Canada.
Facts
The appellants were and still are dissatisfied with the provision of French language education in Alberta, particularly in Edmonton. In 1982 they forwarded a proposal to the Minister of Education of Alberta for a new French‑language public elementary school in Edmonton, which would have the following features: (1) it would instruct Francophone children exclusively in the French language and in a totally "French" environment; (2) it would be administered by a Committee of Parents under the structure of an autonomous French School Board; and (3) it would have a programme reflecting the French linguistic culture.
The appellants were advised that it was a policy of the Province, acting through the Department of Education, to not create any French school jurisdictions. The appellants were encouraged to take their proposal to either the Edmonton Roman Catholic Separate School Board or to the Edmonton Public School Board. The appellants did this, but both Boards rejected their proposal. The Roman Catholic Separate School Board did decide to conduct a study with respect to whether the needs of Francophone students in Edmonton were being met. As a result of that study, in June of 1983 the Roman Catholic Separate School Board directed that a Francophone school, École Maurice Lavallée, be established in September of 1984 under the direction of the Edmonton Roman Catholic Separate School District No. 7.
The evidence relating to the chronology of the development of École Maurice Lavallée is somewhat sketchy. It appears that prior to September 1984, École Maurice Lavallée had been a French immersion school. After that date it continued to offer an immersion programme in grades 7 and 8, but from kindergarten to grade 6 it became a "French only" school, with admission restricted to students of parents who qualified under s. 23 of the Charter . Evidence was presented that as of September 1985, the Roman Catholic Separate School Board District No. 7 intended to commence a Junior High programme at the school and to move its immersion course out of Maurice Lavallée over a two‑year period. After this transition period the school would be comprised entirely of "s. 23 students". At about the same time, the Roman Catholic Board also adopted a motion that they would promote and pursue the establishment of a grade 9 to 12 Francophone programme at a school named École J.H. Picard. It appears that as of the date of the hearing before the Court of Appeal, the Roman Catholic Board had in fact established a Francophone high school at École J.H. Picard, although details of the operation of this school have not been provided to us.
At École Maurice Lavallée, French is the language of instruction and administration, the personnel are all Francophone, and the stated aim of the school is "to primarily reflect the cultural heritage of the French linguistic minority in Alberta." The government emphasized in its argument that the school is not a French immersion school. The respondent also pointed out that non‑residents are granted admission to the school if they qualify under s. 23 of the Charter and that the school has a Parent Advisory Committee which is incorporated pursuant to the Societies Act, R.S.A. 1980, c. S‑18, and which acts as an advisory body to the Board of Trustees.
As a result of the failure of the government to accede to all of their requests, the appellants commenced the action which has culminated in the present appeal. They began the action in October 1983, before the opening of École Maurice Lavallée, but it is clear from the appellants' arguments that they were not and are not satisfied with the system under which École Maurice Lavallée operates. In their statement of claim, the appellants requested that the court make a variety of declarations pursuant to s. 24(1) of the Charter and s. 52 of the Constitution Act, 1982 . Because of their number and the detail of these declarations, it will be helpful to reproduce them verbatim. The appellants asked for declarations stating:
(a). . . that in the metropolitan area of the City of Edmonton there are sufficient numbers of children whose parents are Canadian citizens and whose first language learned and still understood is that of the French minority language in Alberta, and whose parents have received their primary school instruction in Canada in the French language and who reside in Alberta, to warrant out of public funds the provision to their children of French minority language instruction and the right to receive that instruction in French minority language facilities in the Province of Alberta, pursuant to section 23 of the Charter ;
(b). . . that the rights granted pursuant to section 23 of the Charter entitle the plaintiffs to be granted equivalent powers, rights, and duties as those granted to parents of English speaking children in the Province of Alberta and further, and without restricting the generality of the foregoing:
(i)the right to have their children educated in a homogenous French language program lending 100% of the time spent in class to instruction in the French language;
(ii)the power to establish school jurisdictions to administer French language educational facilities;
(iii)the power to collect taxes and otherwise provide revenue for the operation of French language educational facilities;
(iv)the power to hire and fire teachers, and implement curriculum within French language educational facilities;
(v)the power to elect school trustees and hire administrative personnel to supervise the operation of school jurisdictions containing French language educational facilities;
(c). . . that the rights granted pursuant to section 23 of the Charter entitle the plaintiffs to be granted the right to have their children educated in facilities which are equivalent to those provided to English speaking children in the province of Alberta.
(d). . . that The School Act, its seven amendments and regulations thereto, insofar as they are inconsistent with section 23 of the Charter , are of no force or effect. [Emphasis added.]
The statement of defence merely stated two propositions regarding the scope of s. 23 of the Charter . First, that the right to minority language instruction out of public funds arises only where warranted by a sufficient number of "s. 23 students" in an existing school district or division. Second, that there is a further right to receive such instruction in minority language educational facilities provided out of public funds, but only in those school districts or divisions where the number of "s. 23 students" ‑‑ a number higher than that required for minority language instruction alone ‑‑ so warrants. The respondent neither admitted nor denied that there were sufficient numbers of "s. 23 students" to trigger either of these rights in any school district or division within the province of Alberta.
At the heart of this appeal is the claim of the appellants that the term "minority language educational facilities" referred to in s. 23(3) (b) includes administration by distinct school boards. The respondent takes the position that the word "facilities" means a school building. The respondent submits that the rights of the Francophone minority in metropolitan Edmonton have not been denied because those rights are being met with current Francophone educational facilities.
Judgments of the Alberta Courts
Court of Queen's Bench
Purvis J. accepted many of the appellants' general arguments and granted them some declaratory relief: (1985), 22 D.L.R. (4th) 24. However, he declined to grant the specific declarations which the appellants sought. In respect of the central issues of (a) the content of the s. 23 rights, and (b) whether the numbers of French language students in Edmonton warranted granting such rights, Purvis J. held, first, that s. 23 bestows "a degree of exclusive management and control over provision and administration of minority language schools" and, second, that "there is a sufficient number of children of the French linguistic minority" in Edmonton to warrant granting such rights. In his formal judgment he stated that the degree of exclusive management and control required by s. 23 extends to making decisions pertaining to minority language instruction, including:
(a)expenditures of funds provided for such instruction and facilities;
(b)appointment and direction of those responsible for the administration of such instruction and facilities;
(c)establishment of programs of instruction;
(d)recruitment and assignment of teachers and other personnel; and
(e)making of agreements for education and services for minority language pupils;
In his reasons for judgment, Purvis J. also stated that he approved of the Ontario Court of Appeal's judgment in Reference Re Education Act of Ontario and Minority Language Education Rights (1984), 10 D.L.R. (4th) 491, and he noted that the Ontario court had "stated that the necessary degree of control and management might be accomplished if minority representation was guaranteed on local boards or authorities." (Emphasis in original.)
Purvis J. held that his interpretation of s. 23 did not lead to a conflict with the rights of denominational school boards, as guaranteed by s. 17 of the Alberta Act, S.C. 1905, c. 3 (which section replaces, in the case of Alberta, s. 93(1) of the Constitution Act, 1867 , the provision guaranteeing the rights of denominational schools) and protected by s. 29 of the Charter . He stated that the powers of denominational schools which would be affected by s. 23 were not powers "in respect of denominational schools" and, therefore, the constitutional rights of denominational schools did not conflict with s. 23 of the Charter .
With respect to the request for a declaration that Francophone students should enjoy equivalent educational facilities to those enjoyed by English students, Purvis J. stated (at p. 49):
The practicalities imposed by what I have referred to as the two numbers tests [the test for French language instruction and the test for French language facilities] may from time to time result in a minority student, French or English, receiving education in the minority language in facilities which are more or less advantageous than those enjoyed by the majority.
In response to the appellants' demand for a declaration that they possess equivalent powers to those enjoyed by English parents, including those powers with respect to taxing, establishing jurisdictions, electing school trustees, and implementing curriculum, Purvis J. held that s. 23 "does not entitle the plaintiffs to be granted the extensive power and authority they seek" (p. 49). He held that the rights granted under s. 23 are limited to those which he described in his order (quoted above) and, importantly, he added that "these rights have been recognized in timely fashion by the Edmonton Roman Catholic School Division No. 7" (p. 50). As noted by the Court of Appeal, this last finding is not easy to understand in light of Purvis J.'s interpretation of s. 23 and his description of the operation of École Maurice Lavallée. The appellants did not possess the powers which, it appears, they ought to have possessed according to the terms of Purvis J.'s order.
As noted, the appellants also alleged in their statement of claim that certain provisions of the Alberta School Act, R.S.A. 1980, c. S‑3, were in conflict with s. 23 of the Charter . Purvis J. made a general statement to the effect that the School Act is in conflict with the Charter to the extent that it does not recognize s. 23 rights, but he did not invalidate any of the sections of the Act. This holding appeared to be based on the fact that the impugned sections were "permissive" ‑‑ that is, they did not lead to a direct conflict with s. 23 . In respect of the impugned regulation, Regulation 490/82, which requires that approximately 20 per cent of class time be spent teaching English, Purvis J. found that this was a reasonable limitation on the appellants' s. 23 rights.
Court of Appeal
Kerans J.A., speaking for the Court of Appeal, dismissed the appellants' appeal, although, like Purvis J., he did accept a number of the appellants' general arguments: (1987), 42 D.L.R. (4th) 514. Kerans J.A. first discussed the general nature of s. 23 of the Charter . He was of the opinion that the words "instruction" and "educational facilit[ies]" in s. 23 of the Charter "were chosen for their very imprecision" (p. 533). He reached the following conclusion (at pp. 534‑35 and 538‑39):
. . . the two ideas reflected in s. 23 are to offer strong rights to the s. 23 group to prevent assimilation and foster the growth of both official languages everywhere in Canada and, at the same time, interfere as little as possible with provincial legislative jurisdiction over educational institutions. To the extent that these ideas are in conflict, s. 23 is a compromise.
. . .
To me, the compromise lies in the creation of two rights, a compromise that withholds full rights from populations too small to exercise them. The division in s. 23(3) is between the situation where, in a province, a population great enough to warrant independent management of schools exists, and the situation where it does not. The "where numbers warrant" criterion in s. 23(3) (b) provides the line of division.
Throughout his judgment, Kerans J.A. emphasized that s. 23 does "not embrace any particular modality of education" (p. 533) and that "the widest possible discretion is left to the province in terms of institutional arrangements" (p. 534). He said:
I reject, as a result, the argument that s. 23 mandates the modalities of an educational system that henceforth shall apply throughout Canada. I also reject the idea, underlying many arguments on either side of this dispute, that "facility" must mean either a typical local school in the public system, or a local school district. The word is, as I have said, institutionally neutral. [Emphasis in original.]
Kerans J.A. briefly considered s. 23(3) (a). He held that this section "mandates effective language instruction" (p. 535, emphasis in original), which requirement might, in some cases, demand "involvement in the affairs of the school by local s. 23 persons" (p. 535) ‑‑ although Kerans J.A. stated that such involvement would not extend to the governance of the schooling. In the instant case, Kerans J.A. held that the "numbers" requirement for s. 23(3) (a) had been met, but he did not make any specific finding as to what s. 23(3) (a) required in the Edmonton area. He noted that the issue was barely argued before him and that, in any event, the section could not support the declarations which the appellants requested.
Kerans J.A. then turned to the main provision at issue in this appeal, s. 23(3) (b). He held that it is "a cogent extension" of the basic right to instruction guaranteed by s. 23(3) (a), that is, it reinforces "the legal right to schooling by the political right to run schools" (p. 536). With respect to the content of s. 23(3) (b), Kerans J.A. reiterated his holding that "specific forms were not entrenched" (p. 536), adding that most of the proposals offered by the parties and the interveners ran afoul of this rule. He agreed with the appellants that the most effective guarantee against "assimilation" of their children is a facility under their exclusive control, but he held that s. 23(3) (b) does not "necessarily create the right to a francophone local school district". Kerans J.A. stated (at p. 537):
In my view, s. 23(3) (b) guarantees to s. 23 students, where numbers warrant, an educational system (with all its complexity and cost) that not only offers the same quality of education as other systems but is run by the minority language group or its representatives.
and (at p. 539):
I therefore conclude that s. 23(3) (b) offers the minority‑language group the right, where numbers warrant, to establish and control an independent school system, but that a province shall select the institutional means by which that right will be implemented.
Kerans J.A. noted that the rights under s. 23(3) (b) are subject to the rights guaranteed to denominational schools under s. 29 of the Charter , but he did not make any finding on this issue. He stated (at p. 541) that:
None of these issues was canvassed at trial. Moreover, some appropriate parties including, obviously, separate school districts and separate school supporters, are not before the court in this suit. As a result, it is impossible to make any precise determination at this time about the limits on the power contained in s. 23(3) (b). In the end, I can only note that these rights are subject to limits.
On the crucial question of whether the appellants should be awarded the rights provided for under s. 23(3) (b), Kerans J.A. held that the numbers of s. 23 students in the Edmonton area was insufficient to trigger the provision. He stated that the appellants "have not proven that numbers in Edmonton could provide, at reasonable cost, a new system equal to that offered now" (p. 543).
For the foregoing reasons, Kerans J.A. did not grant the appellants the declaratory relief which they sought. He also declined to invalidate any of the provisions of the Alberta School Act. His general view appeared to be that there was no conflict because: (a) the impugned sections of the Act were permissive; and (b) the existing educational arrangements did in fact satisfy s. 23 . Kerans J.A. noted that it was unnecessary for him to consider Regulation 490/82, but he stated that he agreed with the trial judge that the regulation was a reasonable limit on s. 23 of the Charter .
Finally, Kerans J.A. considered a variety of arguments based upon s. 15 of the Charter (the equality provision). Kerans J.A. dismissed all of these arguments, stating, "I cannot see how, in the name of equality, an Albertan can claim for himself the right to establish a school in opposition to the public school" (p. 550).
Analysis
The primary issue raised by this appeal is the degree, if any, of "management and control" of a French language school which should be accorded to s. 23 parents in Edmonton. (The phrase "management and control", it should be noted, is not a term of art: it appears to have been introduced in earlier s. 23 cases and has now gained such currency that it was utilized by all the groups in this appeal.) The appellants appear to accept that, with a few exceptions, the government has provided whatever other se