III. Minority Language Education Rights
Page 8 of 42
Arsenault-Cameron v. Prince Edward Island (cont.)
In the Supreme Court’s view, the statutory discretion of the Minister to designate a French school must be exercised in light of minority educational rights set out in section 23 of the Charter. In failing to give proper weight to the effect of his decision on the promotion and preservation of the French language community of Summerside, the Minister had failed to respect fully the remedial purpose of section 23. While the cost of establishing a French school in Summerside was a factor to consider in light of the number of students who will eventually enrol, the Minister indicated throughout that this was not a consideration that had influenced his decision. Accordingly, the Supreme Court concluded that costs were not an impediment to the establishment of a French school in Summerside.
The Minister’s discretionary power with respect to the establishment of a French school clearly has an impact on the exercise of constitutional rights related to the management and control of minority language instruction and facilities. That members of minority official language communities have such rights is beyond dispute, although the scope of such rights varies as a function of the sliding scale approach set out by the Supreme Court in previous judgments.
Where cultural and linguistic dimensions are not integrated into pedagogical (and even financial) considerations used to make ministerial decisions regarding the delivery of minority language education, disagreement will inevitably arise between a minister and a minority language school board. Thus it was that the Minister of Education of Prince Edward Island applied pedagogical considerations, relevant to the quality of education dispensed by small schools serving the majority, to the needs of the minority French language community of Summerside, without realizing the negative impact this could have on the minority community.
A similar error occurred with respect to travel considerations applied by the Minister, for in applying them he had failed to consider that the French language community had specific needs that were not experienced by similarly situated members of the English majority. As the Supreme Court pointed out: “unlike majority language children, s. 23 children were faced with a choice between a locally accessible school in the majority language and a less accessible school in the minority language. The decision of the Minister fostered an environment in which many of the s. 23 children were discouraged from attending the minority language school because of the long travel times. A similar disincentive would not arise in the circumstances of the majority.”29 Furthermore, the absence of a local minority language school increased the probability of assimilation of the minority language children, a cultural impact not faced by members of the majority who relied on busing to send their children to school.
The Court confirmed that provincial governments “should have the widest possible discretion in selecting the institutional means by which its s. 23 obligations are to be met” although that discretion is subject “to the positive obligation on government to alter or develop ‘major institutional structures’ to effectively ensure the provision of minority language instruction and facilities and parental control on the scale warranted by the relevant number of children of the minority.”30 More specifically, the Court declared: “The province has a legitimate interest in the content and qualitative standards of educational programs for the official language communities and it can impose appropriate programs in so far as they do not interfere with legitimate linguistic and cultural concerns of the minority. School size, facilities, transportation and assembly of students can be regulated, but all have an effect on language and culture and must be regulated with regard to the specific circumstances of the minority and the purpose of s. 23.”31
In the case at bar, there was a lack of provincial norms and regulations that applied to the issue of whether an offer of classes or facilities in the minority language at a given location should be accepted. However, the role of the French school board in the delivery of French language education was clearly set out in provincial law and regulations. As a result, the selection of the area where minority language instruction would be offered fell within the “minority’s exclusive powers of management and control over minority language instruction and facilities, subject to objective provincial norms and guidelines that are consistent with s. 23.”32 There was nothing in provincial law or regulations that was inconsistent with the decision of the French board to offer French language instruction in Summerside. In refusing this offer and continuing to propose busing to another community, the Minister had not applied objective norms or guidelines that integrated or reflected the requirements of section 23.33
From a more general perspective, the Supreme Court also observed that section 23 requirements are not neutral but favour community development. This argues in favour of an important role for minority communities in determining the areas where minority language education should be offered, since these communities are in the best position to appreciate complex historical, social and geographical factors. Accordingly, the Supreme Court has recognized that decisions regarding the location of minority language instruction and facilities are part of the exclusive powers of management of the minority over minority language instruction and facilities, although this management prerogative is subject to appropriate provincial regulation by means of pedagogical and financial norms that are consistent with section 23 of the Charter.
