“A Bulwark Against Assimilation:” the Supreme Court’s Decision in Conseil scolaire francophone de la Colombie‑Britannique v British Columbia
Lauren Scott, 3L, Volume 79 Executive Editor
Conseil scolaire francophone de la Colombie‑Britannique v British Columbia, 2020 SCC 13 (CanLII) (CSF) represented a powerful commitment to the minority language educational rights guaranteed by s 23 of the Canadian Charter of Rights and Freedoms (Charter). This decision also illuminated many facets of the law: it outlined the approach to determining the level of services guaranteed to rights holders, reviewed the s 1 justification of infringements of language rights, and decided that damages could be awarded to remedy such an infringement (CSF at para 2). While the Supreme Court’s stance will likely influence provincial education policies across Canada, it leaves a few questions unanswered.
Section 23 of the Charter
Citizens who belong to their province’s English or French language minority have a constitutional right to have their children receive primary and secondary instruction in that language (under certain conditions: see Charter, s 23(1)-(2)). Section 23 has three purposes: to prevent the erosion of official language communities, remedy the “inadequacy of the present regime” by promoting the development of those communities, and unify the country (CSF at para 15).
This right is subject to certain limits, however. It only applies “wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction” (Charter, s 23(3)(a)). Mahe v Alberta, [1990] 1 SCR 342 (CanLII) (Mahe) elaborated: if a number of students is sufficient to cross the minimum “numbers warrant” threshold, it is situated on a “sliding scale” that corresponds to the educational services that they are entitled to based on pedagogy and cost (Mahe at 366; CSF at paras 24-25, 52). The language minority is also entitled to an experience that is substantively equivalent to that of the majority (CSF at 26; Association des parents de l’école Rose‑des‑vents v. British Columbia (Education), 2015 SCC 21 (CanLII) (Rose-des-vents) at para 3).
Background
The appellants—the Conseil scolaire francophone de la Colombie-Britannique (British Columbia’s only French-language school board), inter alia—claimed that the Province of British Columbia had infringed the official language minority’s s 23 rights by engaging in systemic underfunding and failing to add or improve schools in 17 communities (CSF at paras 27-28).
The British Columbia Supreme Court applied the Mahe sliding scale analysis and decided that proposals to build or improve schools were not warranted in nine communities (CSF at paras 32-34). In assessing schools’ educational quality, the trial judge held that schools that were smaller than local majority schools need only be proportionately (and not substantively) equivalent, and concluded some were (CSF at paras 36-37). She approached the s 1 justification of the infringements that she identified with a “medium level of deference” (CSF at para 40). She found that several infringements were justified, as the “fair and rational allocation of limited public funds” was a pressing and substantial objective, and the impact on linguistic assimilation was not a particularly strong deleterious effect (CSF at paras 42-44). Finally, she concluded that awarding certain s 24(1) damages under the Ward framework would not be appropriate given Mackin government immunity (CSF at paras 45-46; Vancouver (City) v Ward, 2010 SCC 27 (CanLII) (Ward); Mackin v New Brunswick (Minister of Finance), 2002 SCC 13 (CanLII) (Mackin)). She only awarded damages for a freeze on funding for school transportation (CSF at para 47).
The British Columbia Court of Appeal allowed the appeal in part, setting aside the award of damages on the basis of the Province’s entitlement to immunity under Mackin (CSF at para 49).
The Supreme Court’s Decision
The Majority
Wagner CJ, writing for the majority, clarified the approach that should be taken to determine the level of services and the quality of instruction that students are entitled to under s 23—two separate stages of a s 23 analysis (CSF at para 121).
At the first stage, courts must apply a three-pronged analysis to determine where a given number of students falls on the “sliding scale” that corresponds to the level of services owed them (CSF at para 90). First, the court looks to long-term enrolment projections to identify the number of students who will eventually avail themselves of the service (CSF at para 59). Second, the minority may point to the existence of majority language schools serving a similar number of students to establish a presumption that it would be “appropriate from the standpoint of pedagogy and cost to create a comparably sized school for the minority” (CSF at para 69). The province may rebut that presumption by demonstrating that the identified majority language schools are not appropriate comparators, or that the proposed school does not meet pedagogical or cost requirements (CSF at para 75). At the third step, the court situates the students in question on the “sliding scale” of services (CSF at para 84). If the court found that the number of students is comparable to a majority school, the students will fall at the high end of the scale and will be entitled to a homogenous minority language school (CSF at para 84). If the number is not comparable, the students will be entitled to services appropriate for the middle of the scale, which range from minority language courses to control over part of a shared school (CSF at para 85). Wagner CJ declined to specify which services are at the lower end of the scale (CSF at para 87).
The trial judge had erred in using short-term projections to arrive at the relevant number of students and in using only local comparators to situate them on the sliding scale (CSF at paras 95-97). Comparator majority language schools entitled the appellants to eight of the nine proposed schools that the trial judge had denied; Wagner CJ remanded the ninth for reconsideration with more evidence (CSF at paras 94, 96, 101-103).
The second stage of analysis assesses the substantive equivalence of minority and majority language education (CSF at paras 104-105). The test set out in Rose-de-vents—"whether reasonable parents would be deterred from sending their children to a school of the official language minority because it is meaningfully inferior to an available majority language school”— is applicable to smaller minority schools, with the addition that the reasonable parent is “aware of the inherent characteristics of small schools” (CSF at paras 105, 116). The trial judge had erred in applying a proportionality test—one school was not substantively equivalent, and another was remanded on the basis of insufficient evidence (CSFat paras 117, 125-138).
Wagner CJ also clarified the justification of a s 23 infringement under s 1 (CSF at para 144). Since the s 23 right is a positive obligation, is not subject to the s 33 notwithstanding clause, and has its own internal limit (the “numbers warrant” requirement), the s 1 analysis is subject to a “particularly stringent standard” (CSF at paras 147-151). Here, the s 23 infringements were not justified under s 1 (CSF at para 160). The lower courts erred in deciding that “the fair and rational allocation of limited public funds” was a pressing and substantial objective, in failing to take assimilation into account as a deleterious effect, and in finding that savings resulting from the infringement were a salutary effect (CSF at paras 153-156, 159).
Wagner CJ concluded that damages could be awarded under s 24(1) of the Charter, as the limited government immunity recognized in Ward applied only to acts pursuant to a law, and not government policies (CSF at paras 168-169, 180). He restored the trial judge’s award, adding damages for an infringement that she had erroneously concluded was justified (CSF at paras 180-181).
The Dissent
Brown and Rowe JJ were in “substantial agreement with the Chief Justice,” but dissented in part to highlight a few “reasonably held differences” with his approach to s 23 and Charter damages (CSF at paras 193, 196).
Brown and Rowe JJ concluded that the second step in the majority’s sliding scale framework displaced s 23’s internal limit, the “numbers warrant” analysis (CSF at paras 216, 219). Since this presumption seems difficult to rebut, the existence of a school with comparable numbers anywhere in the province would often result in entitlement to a homogenous school (CSF at para 219). This “fast track” to the high end of the sliding scale eliminates any “middle level” (CSF at paras 224-225). They proposed a two-step approach: after the claimant shows that their claim is pedagogically appropriate, the province may rebut the presumption of cost appropriateness (CSF at para 227). Comparable majority schools would be only one factor relevant to pedagogical appropriateness (CSF at paras 228-229). In applying this approach, the dissenting justices determined that some communities were in the middle of the sliding scale: because smaller majority schools could be excluded as comparators due to their remoteness, these students would instead be granted instruction with access to core facilities (CSF at paras 306-311).
Brown and Rowe JJ maintained that the majority’s province-wide presumption at the first stage of the analysis would establish very small minority language schools that would need similar facilities to local majority language schools to be considered equivalent (CSF at para 244-245). They also emphasized that the substantive equivalence analysis should be global, rather than an “itemized evaluation of services and facilities” (CSF at para 246).
The dissent also preferred a slightly different approach to the s 1 analysis. Instead of affecting the stringency of the Oakes test, s 23’s internal limit meant that s 1 “will have less to do” (CSF at para 255). Brown and Rowe JJ also noted that cost considerations may be a pressing and substantial objective where they are linked to other public policy considerations (CSF at para 259).
Brown and Rowe JJ held that Mackin immunity does apply to government policies, but reached the same decision on the availability of damages by carving out an exception for s 23—because infringing governments have failed to carry out their function, there is no good governance for Mackin to protect (CSF at paras 267-268, 299). A court would nevertheless apply the Ward analysis for the availability of s 24(1) damages, including investigating whether a declaration would be an adequate remedy (CSF at paras 268, 271, 277).
Discussion
CSF’s usefulness lies primarily in its clarified approach to s 23 claims. Wagner CJ’s explanation of the interaction of Mahe’s sliding scale with Rose-des-vents’ more recent ruling on substantive equality helpfully consolidates the current law (CSF at para 121-123). While the sliding scale approach had previously included factors of pedagogy and cost, these can be difficult to apply on their own. The dissent’s approach relies on a contextual evaluation of these factors, and is somewhat amorphous as a result (CSF at paras 228-233). By using similarly-sized schools as indicators of pedagogical and cost appropriateness, the majority has created a framework that is as clear as it intended (CSF at para 70). As the majority points out, a “straightforward and predictable approach” is all the more desirable in the s 23 context, where litigation can result in the denial of two generations of students’ language rights (CSF at para 56).
This framework was designed for practical effect. Although “courts have a crucial role to play” in implementing s 23, Wagner CJ hoped that his approach “might even enable rights holders to avoid, to the extent possible, resorting to litigation” (CSF at paras 16, 56). The Court’s firm defense of language rights provides school boards with significant support.
Still, a few uncertainties remain. The majority declined to identify which services would be required at lowest end of the sliding scale, but indicated that the lower middle range would include “the provision of certain courses in the minority language” (CSF at paras 87, 85). The scale may need recalibrating—this service seems like it must constitute the lowest level of instruction available to a number of students that has surpassed the “minimum threshold” for s 23(3)(a) instruction (CSF at para 24).
It is also unclear how a s 23 infringement similar to those in CSF could ever be justified. The majority held that cost considerations cannot justify an infringement under s 1, as they are taken into account at the “numbers warrant” stage (CSF at para 150). Since provinces often point to financial constraints, a provincial failure to support or create minority language schools may only be justified in exceptional cases (CSF at para 151). It is unclear, however, what exactly would make a given case exceptional.
Finally, the majority’s statement that “there is no government immunity for decisions made in accordance with government policies” may disrupt future Charter litigation (CSF at para 166). The dissent stated that governmental immunity has been consistently framed to encompass policies, and that the Chief Justice’s focus on the vehicle of state action is misplaced (CSF at paras 285-293). It will take time to see how these uncertainties will be clarified.