Canadian courts have long established that the education provided to minority language groups in Canada (English language in Quebec and French language in the rest of Canada) must be equivalent to that offered to the majority language group.  The Supreme Court of Canada (the “Court”) recently rendered a decision identifying the parameters a court should apply when determining whether or not a minority language school offers educational services equivalent to a majority language school.  In Association des parents de l’école Rose-des-vents v. British Columbia (Education), 2015 SCC 21 (CanLII), the Court applied a pragmatic approach comparing the existing educational choices available to parents in order to determine the applicant’s minority language rights.

Section 23 of the Canadian Charter of Rights and Freedoms provides that certain Canadians are entitled to enroll their children in a minority language school, which provides education in the student’s first language and transmits the culture of the minority language community.  The purpose of section 23 of the Charter was described in Commission des Ecoles Fransaskoises Inc. et al. v. Saskatchewan, (1988) 64 Sask R 123 as “the preservation and enhancement, through education, of Canada’s two official languages and of the cultural identity of each language group.”

Rose-des-vents is a novel interpretation of section 23 and the rights contained therein.  Previous decisions of the Court have, on the basis of a sliding scale, tied the services available to the number of potential minority language rights students who might benefit from the services.  Rose-des-vents, however, asks whether or not the services already being provided by the minority language school are sufficient as compared to what is offered at majority language schools.

Section 23 is remedial in nature.  In other words, it is intended, in part, to correct and prevent the erosion of official language minority groups and to promote the equal partnership between Canada’s two official languages. Historically, this has meant that governments provide substantively equivalent, although not the same, educational services for the two official language groups when the number of potential minority language students justifies the highest level of services on the sliding scale.

Minority language school boards have tended to argue that either their operational funding or capital funding (or both) is insufficient to provide equivalent educational services.  Presently, there are at least seven active legal proceedings with respect to minority language education funding in Canada.

With respect to operational funding, many jurisdictions have funding formulas that are based on a per pupil cost. These funding formulas can include additional funds for minority language school boards, to account for some of their particular expenses. The additional funding is provided to achieve a level of equivalency with majority language school boards. Governments have relied on the additional funding contained in their formulas to demonstrate substantive equality.

In Rose-des-vents, the Court stated that this type of analysis is not sufficient to determine if a province is fulfilling its constitutional obligation to provide equivalent minority language education: “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.”

With respect to capital facilities, the majority language group often benefits from a variety of programs and services that are available as a result of the number of students participating.  The Court in Rose-des-ventsstated that the proper comparator “for the assessment of substantive equivalence of a minority language school will be the neighbouring majority language schools that represent a realistic alternative for rights holders.”

The Court recognized where majority language schools are vastly superior, “that fact could undermine the parent’s desire to have their children educated in the minority language, and thus could lead to assimilation.” But, the Court warned that minority language rights holders cannot expect to have the very best of every aspect of education in their schools to achieve substantive equivalence. Rather, “the comparative exercise is contextual and holistic, accounting for not only physical facilities, but also quality of instruction, educational outcomes, extracurricular activities, and travel times, to name a few factors. Such an approach is similar to the way parents make decisions regarding their children’s education.”

The direction provided by the Court in Rose-des-vents with respect to the equivalency test for section 23 is straightforward and practical. It is a pragmatic approach to minority language education rights. The test, however, now places greater importance on determining the potential number of eligible pupils, given that substantive equality appears to only be applicable when a minority language school finds itself at the upper echelon of the sliding scale of educational programs and services.