III. Minority Language Education Rights
Page 6 of 42
1.Community-based Schools
The Supreme Court had occasion to elaborate upon the importance of institutions to the vitality of minority communities in a recent case from Prince Edward Island14 pertaining to minority official language education rights under section 23 of the Charter.
Arsenault-Cameron v. Prince Edward Island
The case originated in a dispute about the lack of minority language education opportunities in local communities. Gaining access to minority language instruction close to home, as opposed to busing children to more distant schools, can have important consequences for parents who seek to exercise constitutional rights under section 23. In effect, the absence of community-based schools and the prospect of busing inevitably act as a deterrent to the enrolment of children in programs offering minority official language instruction. This is particularly true at the primary or elementary level of education.
While determining where minority language instruction should be offered involves the weighing of several factors, none is more important than a careful consideration of the management and control rights of parents under section 23. As the Arsenault case illustrates, differences may very well arise between those charged with the responsibility to manage the delivery of minority language education and provincial education officials. Where disagreements arise, the respective powers and responsibilities of each party must be weighed (including section 23 rights), and the criteria used in reaching decisions must be scrutinized against a backdrop of constitutional standards.
In Prince Edward Island, management rights inherent in section 23 have been implemented generally by legislative and regulatory provisions establishing a French-language school board with province-wide jurisdiction and endowed with the same powers and responsibilities as school boards controlled by the English-speaking majority.15 While sections 49 and 50 of the School Act set out broad powers of management for all school boards, such powers are in fact qualified by the pre-eminent role of the Minister of Education and by standards and procedures set out in regulations or contained in ministerial directives.
With respect to an offer of minority language instruction, regulations under the School Act define a threshold number of 15 eligible students over two consecutive grade levels who can reasonably be assembled for that purpose.16 No similar numerical threshold is given regarding the establishment of a separate or free-standing educational facility. It should be noted, however, that the authority to establish a French school is given to the Minister under the regulations. In exercising that discretionary power, the Minister is required to consider three factors: a) the number of students; b) the number of grade levels; and c) the reasonable assembly of students in one location.17 As to what constitutes a French school, the regulations define it as “a building or part of a building” designated by the Minister and “used, during school hours, to provide French language instruction to classes over several grade levels.”18
The location where French language instruction will be offered is further conditioned by regulations that stipulate that the French school board shall provide such instruction in a particular area by offering classes or by offering transportation to an area that already has a class.19 Regulations also provide that, in making preliminary plans to start a new class in any area, the French school board shall “take into consideration the proximity of existing classes or facilities, projected number of section 23 children, and other relevant factors.”20 Even though the French school board has significant obligations to provide French language instruction, it must nonetheless obtain the approval of the Minister of Education before making a conditional offer of instruction in a given area. Ministerial approval is specifically required with respect to the projected numbers and whether they can be reasonably assembled for a class.21
On the facts in Arsenault-Cameron, the French school board had concluded that there were enough eligible elementary-aged students in Summerside and the immediate area to justify the provision of French language instruction at that location. Among other things, this conclusion was supported by the results of a preregistration that indicated that a total of 34 children would have enrolled in six elementary grades if such instruction had been offered. Fifteen students would have registered for the first two grades. While busing to a fully operational French-language school in another community 30 kilometres away was routinely offered to minority language parents in Summerside, this was viewed by many as inadequate. Indeed, a significant proportion of parents preferred to enrol their children in French immersion programs in their own community, rather than accept the offer of transportation to a much more distant location. The French school board thus sought ministerial approval of its decision to offer French language instruction in Summerside, such approval being required under the School Act and regulations.
