III. Minority Language Education Rights
Page 7 of 42
Arsenault-Cameron v. Prince Edward Island (cont.)
The Minister of Education rejected the proposal of the French school board. He took the view that it would be problematic to establish a school for a small number of students who were already being offered transportation to an existing and well-established program in an adjacent community (30 kilometres away). He reiterated that transportation would continue to be offered. While he was in agreement that the estimated number of students in Summerside was sufficient to trigger the right to French language instruction, he felt that the offer of transportation to an existing school fulfilled his constitutional responsibilities under section 23 of the Charter as well as requirements under the School Act and regulations. Legal action challenging the validity of the Minister’s decision commenced soon afterward.22
Although the plaintiffs were successful before the trial division of the Prince Edward Island Supreme Court, the decision in their favour was reversed by the provincial Court of Appeal.
In overturning the decision of the Prince Edward Island Court of Appeal, the Supreme Court of Canada returned to basic principles of interpretation that must be borne in mind when dealing with section 23 cases. First, section 23 is remedial in nature and “was designed to correct, on a national scale, the historically progressive erosion of official language groups and to give effect to the equal partnership of the two official language groups in the context of education.”23 Language rights must also be understood as intertwined with concerns for the culture associated with the use of language. It is therefore important to consider carefully the historical and social context of any given group of section 23 rights holders, as the trial judge in Arsenault-Cameron had done, and to recognize the importance of official minority language schools to the development of official language communities.
The remedial aspect of section 23 must not be narrowed by arguments based on the proposition that language rights arise inherently from political compromise. Such compromise is not unique to language rights and does not constitute a reason to depart from a purposive interpretation that gives full effect to the remedial purposes of section 23 of the Charter, as clearly set out in the Court’s decision in Beaulac. In the context of these basic principles of interpretation, the Supreme Court concluded that the Minister of Education had failed, in reaching his decision regarding the proposed offer of French language instruction in Summerside, “to give proper weight to the preservation of minority language culture.”24
Also fundamental to the interpretation of section 23 is the notion of equality. On this point, the Supreme Court underscored that substantive equality for section 23 rights holders cannot be achieved by a rigid adherence to “a formal vision of equality that would focus on treating the majority and minority official language groups alike.” It further emphasized that “[s]ection 23 is premised on the fact 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.”25 This means that objective standards formulated as a function of the pedagogical needs of majority language students should not be applied automatically to assess the needs of minority language children.
As the level of educational services mandated under section 23 varies with the number of minority language students in any area, the Supreme Court also addressed the manner in which numbers should be calculated. Although the numbers standard under section 23 must be worked out over time by reference to the particular facts of each case that might come forward, the Supreme Court reiterated that “[t]he relevant number is the number who will potentially take advantage of the service, which can be roughly estimated as being somewhere between the known demand and the total number of persons who could potentially take advantage of the service.”26 The assessment of potential is clearly related to demographic facts, most often established by the testimony of expert witnesses.
Once the potential number of students who will eventually take advantage of minority language education has been established, the further question of whether such numbers are sufficient to justify a separate, homogeneous school (as opposed to classrooms in a shared school) must be addressed. In this regard, the Supreme Court ruled that pedagogical considerations relevant to a minority community must include a weighing of the importance of linguistic and cultural realities to minority communities. Differential treatment might very well be needed in order to achieve substantive equality for a minority community. As the Court ruled: “[t]he 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.”27 Although the Minister had testified that in his view a small school generally faced difficulties in meeting curriculum requirements, no actual evidence had been presented to indicate that pedagogical standards could not be met, nor that the education provided would be inferior. Indeed, the Supreme Court pointed out that there was evidence “that a number of English language schools with fewer than 100 students existed in the Eastern school district, but the Minister was not willing to close them or to say they did not meet the department’s pedagogical standards.”28
