Emily Stopps
Queens University, Kingston
Juris Doctor, 2009
General Counsel
Introduction
Section 23 of the Canadian Charter of Rights and Freedoms constitutionally guarantees minority language education rights. This guarantees French minority language education rights to French-speaking communities in English-speaking areas (primarily outside of Quebec), and guarantees English minority language education rights to English-speaking communities in French-speaking areas.
This is a positive right; one which can require government action to uphold the constitutionally guaranteed right to minority language education. It is a right that can require positive intervention.
The minority language education referred to by this right is different than immersion or bilingual language education, where half of the subjects are taught in one language, half in the other. It is more of a full language instruction, where all subjects and activities, aside from other language instruction, are carried out in the language of the official language minority.
Section 23 entitles parents - parents falling under this right are entitled to have their children educated in a minority language education facility, for both their primary and secondary instruction.
There are 3 categories of entitled parents recognized by s. 23; the burden of proving that they fall into one of these categories falls on the parents.
The first category is enumerated under s. 23(1)(a) . It includes parents whose first language learned and still understood is that of the official minority language population of the province in which they reside. The linguistic proficiency here refers to the linguistic proficiency of the parent, not the children.
The second category of entitled parents is included under s. 23(1)(b). It includes parents who 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 linguistic minority.
The third category of entitled parents is included under s. 23(2), parents 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 of their children receive primary and secondary school instruction in the same language. Basically, this clause does not allow for inequity among siblings.
One additional issue that needs to be considered is that the minority language education rights provided for in s. 23 of the Charter apply to Canadian citizens only. For those individuals who are not citizens, but otherwise meet the s. 23 criteria, acquiring citizenship would seem to automatically bring them under this right.
So, why is section 23 important?
Minority language education is essential to the survival of a minority language community. This is about the survival of the language itself, as well as the preservation of the culture of the minority language community.
Concern about assimilation (both linguistic and cultural) is one of the main motivations behind this Charter right.
There is evidence that receiving education in the minority language acts against the pressures of assimilation for minority language communities.
As well, it has been stated that providing education to the minority language community in their own language provides a better education, as children are taught in the language they best understand, and in a culture they share.
The Supreme Court of Canada found schools to be "the single most important institution for the survival of the official language minority.", as they act as community centres, cultural hubs and strongholds for linguistic vitality.
Interpretation of Section 23
The purpose of Charter rights, including s. 23, is key to determining the correct interpretation and so, to applying the law.
The Courts who have examined section 23 of the Charter, most notably the Supreme Court of Canada, have made several main observations about the purpose:
1. The general purpose of s. 23 is to preserve and promote the two official languages of Canada and their cultures. Through promoting and supporting minority language education, and addressing perceived educational inequities, the vitality of the language and the culture will be bolstered.
2. Section 23 is designed to fix an existing problem in Canada. It is meant to be remedial and help Canada move towards "the concept of the 'equal partnership' of the two official language groups in the context of education." The Supreme Court of Canada stated in the Mahe case that the historical and contextual situation has to be understood in order to be redressed, with a goal of providing the official language minority with equal access to high quality minority language education.
Finally, s. 23 has always been given a large and liberal interpretation by the Supreme Court of Canada.
The Supreme Court also determined that different interpretive approaches may be required in considering issues in different jurisdictions and areas, due to the focus on the historical context of language and culture.
Section 23 is about promoting equality in official language education. The equality guaranteed is a substantive equality, and does not require the exact same education, facilities or resources as is provided to the official language majority. In some cases, providing education for a minority language group may require different or even greater resources.
Section 23 deals with the right to be educated in the official minority language.
There are four major parts to this right: First the right to instruction. Minority language education is more than an immersion or bilingual program, it is a full language instruction.
The Supreme Court of Canada found that this encompasses all activities and classes, including extra-curricular activities and activities on the playground, as well as the in-class portions.
Two and three are a right to facilities and a right to a measure of management and control.
Subsection 23(3) provides for the application of the right of the parents who are entitled under subsections (1) and (2), where the numbers warrant.
The Supreme Court of Canada has adopted a "sliding scale" approach to determine this matter. This is interpreted from subsections 23(3)(a) and (b). Subsection (a) provides the lower end of this spectrum, requiring minority language instruction; while (b) provides the higher end of this spectrum, requiring minority language educational facilities.
Adopting a "sliding scale" approach allows the threshold to remain flexible and take into account different contexts and circumstances from case to case and place to place.
The idea is that s. 23 guarantees the type and level of services appropriate to provide minority language instruction to the number of students.
Subsection 23(3) has been interpreted by the Supreme Court of Canada as also giving a degree of "control and management" of the facilities to the minority language parents or their representatives.
The Supreme Court of Canada determined in the Arsenault-Cameron case that where the numbers warrant minority language instruction in a community, it must be provided in a facility located in the community in which the children reside. The location of educational facilities must be determined on a case to case basis.
Facilities may be separate (which is preferable) or may be shared, depending on the circumstances, but the minority community must be able to have a measure of management and control over the facility and program of instruction. This includes, at minimum, control over the instruction program and the daily administration of this program, which requires that the facilities be distinct from those of the majority.
The fourth major part of this right, is the right to an education that is substantively equitable to that provided to the majority. Section 23 is about providing substantive equality to minority language rights holders.
The Supreme Court stated, in the Arsenault-Cameron case, 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."
Instruction programs, facilities and other services must be of a quality comparable to those of the majority. Minority language education may even require, in some circumstances, a greater amount of funding per student than is given to the majority.
This is only a brief overview of s. 23 of the Charter, and the legal issues surrounding minority language education and Charter rights. It is very important for individuals to understand their rights and the rights of others .
