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THE LITIGATOR

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Supreme Court to decide if French-language school in Vancouver worse than English-language schools

A group of Vancouver parents of children attending a French-language school in Vancouver have persuaded the Supreme Court of Canada to hear their case. At issue is whether or not the school their children attend is so sub-par vis-à-vis its English-language counterparts that their minority under Canadian Charter of Rights and Freedoms have been violated.

In the case of Association des parents de l’école Rose-des-vents and Joseph Pagé, et al. v. Ministry of Education of British Columbia, et al., the of Canada granted leave to appeal a decision of the Court of Appeal, which had itself overturned a trial decision, in which the parents obtained a declaration that the sub-par condition of the school was causing an infringement of their language rights.

Language Rights and the Canadian of Rights and Freedoms

French and English are the two official languages of Canada. The Canadian Charter of Rights and Freedoms says as much:

Official languages of Canada

16. (1) English and French are the official languages of Canada and have equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

The Charter goes on to guarantee minority education rights:

Language of instruction

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.

Background

The Conseil Scolaire Francophone de la Columbia-Britannique (CSF) is the Francophone education authority in British Columbia that offers homogenous French language primary and secondary instruction throughout British Columbia.

The parents of the children at the École Rose-des-vents school filed a petition (motion) in the Supreme Court of British Columbia, the court of first instance, naming as respondents the Ministry of Education, the Province of British Columbia, and the CSF. The petition sought a declaration that the petitioners’ minority language education rights under s. 23 of the Canadian had been breached.

The parents wanted the court to determine whether there were a sufficient number of minority French-language speakers (i.e. Charter “rights-holders”) to warrant the provision of educational facilities in their area, and whether the facilities currently afforded to rights-holders were sufficient to meet the needs of that number of rights-holders.

On October 31, 2012, the judge declared that parents living west of Main Street in the City of Vancouver who had the right to have their children receive primary school instruction in French were not being provided the minority language educational facilities guaranteed to them by s. 23 of the Charter.

The motion judge held that once it was determined that there were numbers sufficient to warrant an elementary school, the rights-holders were entitled to an elementary school that was at least equivalent to that afforded to most Anglophone students on the west side of the City of Vancouver. The motion judge was not concerned that such a standard imposed constraints on the Conseil.

The Constitution requires the provision of full and complete education to minority language students where numbers warrant, not a limited, partial or truncated education, not an inferior or second-class education, the judge held. The requirement that the facilities provided to minority language students be equivalent to those provided to the majority is clearly described in the jurisprudence as the result intended by s. 23 of the Charter.

Inadequate School

The problem with the school in question included growing enrollment, no available flexible space in the school, a very small library, inadequate washrooms, classrooms significantly smaller than those in other schools, narrow hallways, no storage space, a small playground divided into small pieces. It was also probable that the space made available to the school would diminish in the coming years. Moreover, parents have moved to other schools because of crowding, inadequate facilities and long travel times.

The central question for the motion judge was whether, bearing in mind all of the facilities provided to them, a disparity existed between the facilities afforded to minority and majority language students. The evidence, in his view, clearly established such a disparity.

The British Columbia Court of Appeal overturned the decision on procedural grounds. The Court of Appeal ordered a new hearing on the basis that the motion judge improperly struck out from the Province of British Columbia’s response to the Parents’ pleading, certain paragraphs that dealt with other arguable causes for the withdrawal of students from the French-language school and the assimilation into English-language schools alleged by the Parents as well as comparable deficiencies in the English-language schools to those asserted by the Parents.

The Parents contended that once a sufficient number of minority Francophone students were present in a community, the only remaining issue was whether the facilities in the community meet the s. 23 Charter standard for the currently attending population. The motion judge therefore deemed irrelevant any pleadings not directly on point made by the Province, such as those dealing with the costs of providing similar French-language facilities as those that existed for English-language schools.

The Court of Appeal held that cost considerations are still a valid consideration once a sufficient number of minority Francophone students are present in a community. Cost was a factor in at least some s. 23 Charter cases, as could be seen from the reasons of Major and Bastarache JJ. in the Supreme Court of Canada case Arsenault-Cameron v. P.E.I., [2000] 1 S.C.R. 3 at paras. 38 and 41:

[38] Mahe explains that the numbers warrant provision requires that two factors be considered in determining the demands of s. 23. First, it requires a determination of the appropriate services, in pedagogical terms, for the number of students involved. Then it requires an examination of the costs of the contemplated service. In addressing the first concern, pedagogical requirements, it is important to consider the value of linguistic minority education as part of the determination of the services appropriate for the number of students. The pedagogical requirements established to address the needs of the majority language students cannot be used to trump cultural and linguistic concerns appropriate for the minority language students.

[41] The second factor to be considered is the cost of the contemplated services. At the hearing before this Court, the province explained that costs were not a consideration in the Minister’s decision. This is consistent with the fact that the Minister had maintained at trial that the Board’s plan to provide French language instruction locally to such a small group was not pedagogically viable. The trial judge concluded that the Minister had simply decided that a facility in Summerside was not a “practical option”. This conclusion, as mentioned earlier, was based on the availability of space at École Évangéline (pp. 336-37). It can therefore be assumed for the purpose of analysis that the second factor in assessing sufficient numbers in Mahe, i.e. costs, is not at issue in this case.

The Court of Appeal set aside the declaration that the Parents s. 23 Charter rights had been violated and remitted the matter for another hearing in the court below.

British Columbia’s English-Only Courts

Despite Canada having two official languages, both British Columbia cases were argued and decided in English. Only since 1990 in the criminal context have Francophone accused persons in British Columbia had the right to be tried by a judge and jury who speak French. French-speaking jury trials are very rare in British Columbia, with only one, on average, occurring per year.

In the civil context, there are no French-language proceedings in British Columbia. The courts in British Columbia will not even consider exhibits to an affidavit filed in proceedings that are in French unless accompanied by an English translation.

On March 27, 2014, the Supreme Court of Canada agreed to hear the appeal of the British Columbia Court of Appeal decision. It is likely that the appeal will be argued in French by some parties. All Supreme Court of Canada can be heard in either English or French. All decisions of the Supreme Court of Canada are rendered in both languages.

 

Watch an interview with Joseph Pagé, parents and lead applicant in the matter, on Le Téléjournal – Colombie-Britannique starting at the 26:15 minute mark (in French).

Joseph Pagé and Nicolas Rouleau, lawyer for the Association des parents de l’école Rose-des-vents and Joseph Pagé, are graduates of the French Common Law Program at the University of Ottawa.

 

Michael Binetti
Affleck Greene McMurtry LLP

Michael Binetti

Michael Binetti, a partner of the firm, brings a proven litigation background plus extensive experience in arguing both trials and appeals. He has demonstrated his strategic legal capability and expertise in wide-ranging areas of litigation. Michael’s peers and clients have commented that Michael is an “excellent and creative lawyer,” “finds unique solutions to complex problems,” and that “Michael gets it and knows how to win.”

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