Mahe v. Alberta, [1990] 1 SCR 342

Mahe v. Alberta, [1990] 1 S.C.R. 342

 

Jean‑Claude Mahe, Angeline Martel, Paul Dubé and

the Association de l'école Georges et Julia Bugnet                                                       Appellants

 

v.

 

Her Majesty The Queen in right

of the province of Alberta  Respondent

 

and

 

The Attorney General of Canada,

the Attorney General for Ontario,

the Attorney General of Quebec,

the Attorney General for New Brunswick,

the Attorney General of Manitoba,

the Attorney General for Saskatchewan,

the Association canadienne-française de l'Alberta,

the Commissioner of Official Languages for Canada,

Alliance Quebec, Alliance for Languages Communities

in Quebec, the Association canadienne-française de

l'Ontario, the Association française des conseils

scolaires de l'Ontario, the Association des

enseignantes et des enseignants franco‑ontariens,

the Quebec Association of Protestant School Boards,

the Edmonton Roman Catholic Separate School District

No. 7 and the Alberta School Trustees' Association                                                      Interveners

 

indexed as:  mahe v. alberta

 

File No.:  20590.

 

1989:  June 14; 1990:  March 15.

 

Present:  Dickson C.J. and Wilson, La Forest, L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.

 

on appeal from the court of appeal for alberta

 

    Constitutional law ‑‑ Charter of Rights  ‑‑ Minority Language Educational Rights ‑‑ Whether the rights which s. 23  of the Canadian Charter of Rights and Freedoms  mandates, depending upon the numbers of students, include a right to to "management and control" over the minority language facilities and instruction ‑‑ If so, whether the number of students in the Edmonton area sufficient to invoke this right ‑‑ Meaning of the phrase "management and control".

 

    Constitutional law ‑‑ Charter of Rights  ‑‑ Minority Language Educational Rights ‑‑ Whether the Alberta School Act and the regulations passed thereunder inconsistent with s. 23  of the Canadian Charter of Rights and Freedoms  ‑‑ If so, whether such inconsistency justifiable under s. 1  of the Charter  ‑‑ School Act, R.S.A. 1980, c. S‑3, ss. 13, 158, 159 ‑‑ French Language Regulation, Alta. Reg. 490/82.

 

    Constitutional law ‑‑ Charter of Rights  ‑‑ Preservation of rights respecting certain schools ‑‑ Section 23  of the Canadian Charter of Rights and Freedoms  conferring upon minority language parents in the Edmonton area the rights to management and control over the minority language facilities and instruction ‑‑ Whether the rights conferred by s. 23 inconsistent with the "right or privilege with respect to separate schools" guaranteed under s. 17 of the Alberta Act ‑‑ Canadian Charter of Rights and Freedoms, ss. 23 , 29  ‑‑ Alberta Act, S.C. 1905, c. 3, s. 17 ‑‑ Constitution Act, 1867, s. 93(1) .

 

    The appellants claim that their rights under s. 23  of the Canadian Charter of Rights and Freedoms  are not satisfied by the existing educational system in Edmonton nor by the legislation under which it operates.  In particular, the appellants argue that s. 23 guarantees the right, in Edmonton, to the "management and control" of a minority‑language school.  At the time of the trial, in the Edmonton area there were approximately 116,800 students enrolled in the public and separate school systems and approximately 2,900 citizens whose first language learned and still understood was French.  These citizens had approximately 4,130 children aged from birth to 19 years, of whom 3,750 were between 5 and 19 years of age.  In 1984, the Roman Catholic Separate School Board established a Francophone school under the direction of the Edmonton Roman Catholic Separate School District No. 7.  By 1985, the enrollment at the school was 242 students from kindergarten to grade 6, with room for more, and 73 students in the grade 7 and 8 immersion program.  The appellants brought an action against the province seeking the following declarations:  (1) that there is a sufficient number of children of the French linguistic minority in the Edmonton area to warrant publicly‑funded French language instruction and facilities pursuant to s. 23  of the Charter ; (2) that the rights granted pursuant to s. 23 entitle the appellants to have their children educated in facilities which are equivalent to those provided to English speaking children, and to be granted powers equivalent to those granted parents of English speaking children; and (3) that the Alberta School Act and the Regulation 490/82 passed thereunder, in so far as they are inconsistent with s. 23, are of no force or effect.  Both the Court of Queen's Bench and the Court of Appeal accepted many of the appellants' general arguments but declined to grant the specific declarations which the appellants requested.  In this appeal, the appellants seek to determine whether the educational system in the Edmonton area satisfies the demands of s. 23.  The main issue is the degree, if any, of "management and control" of a French language school which should be accorded to the minority language parents in Edmonton.

 

    Held:  The appeal should be allowed.

 

Section 23  of the Charter 

 

    The general purpose of s. 23  of the Charter  is to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language flourishes, as far as possible, in provinces where it is not spoken by the majority of the population.  The section aims at achieving this goal by granting minority language educational rights to minority language parents throughout Canada.  Section 23 is also designed to correct, on a national scale, the progressive erosion of minority official language groups and to give effect to the concept of the `equal partnership' of the two official language groups in the context of education.  In order to fulfil the purpose of s. 23, the section should be viewed as providing a general right to minority language instruction with paras. (a) and (b) of subs. (3) qualifying this general right.  Section 23 encompasses a "sliding scale" of requirements, with subs. (3)(b) indicating the upper level of the range of possible institutional requirements which may be mandated by s. 23 (a government may, however, provide more than the minimum required by s. 23) and the term "instruction" in subs. (3)(a) indicating the lower level.  The "sliding scale" approach guarantees whatever type and level of rights and services is appropriate under s. 23 in order to provide minority language instruction for the particular number of students involved.

 

    Where the numbers warrant, s. 23 confers upon minority language parents a right to management and control over the educational facilities in which their children are taught.  Such management and control is vital to ensure that their language and culture flourish.  The English and the French versions of s. 23(3)(b), read together, support such an interpretation.  The measure of management and control required by s. 23 may, in some circumstances and depending on the numbers of students to be served, warrant an independent school board.  An independent school board, however, is not necessarily the best means of fulfilling the purpose of s. 23.  What is essential to satisfy that purpose is that the minority language group have control over those aspects of education which pertain to or have an effect upon their language and culture.  So, where the number of s. 23 students does not warrant granting an independent school board (the maximum level of management and control), but is significant enough to warrant moving towards the upper level of the sliding scale, it may be sufficient to require linguistic minority representation on an existing school board.  In this latter case:  (1) the representation of the linguistic minority on local boards or other public authorities which administer minority language instruction or facilities should be guaranteed; (2) the number of minority language representatives on the board should be, at a minimum, proportional to the number of minority language students in the school district, i.e., the number of minority language students for whom the board is responsible; (3) the minority language representatives should have exclusive authority to make decisions relating to the minority language instruction and facilities, including:  (a) expenditures of funds provided for such instruction and facilities; (b) appointment and direction of those responsible for the administration of such instruction and facilities; (c) establishment of programs of instruction; (d) recruitment and assignment of teachers and other personnel; and (e) the making of agreements for education and services for minority language pupils.

 

    Where the above degree of management is warranted, the quality of education provided to the minority language group should in principle be on a basis of reasonable equality with the majority, although it need not be identical, and public funding adequate for this purpose must be provided.  The persons who will exercise the measure of management and control are minority language parents or persons such parents designate as their representatives.  Finally, other degrees of management and control may be required in situations where the numbers do not justify granting linguistic minority representation on an existing school board.  What is required in any case will turn on what the "numbers warrant".  The relevant figure for s. 23 purposes is the number of persons who will eventually take advantage of the contemplated program or facility.  Two factors should be taken into account in determining what s. 23 demands:  (1) the services appropriate, in pedagogical terms, for the number of students involved; and (2) the cost of the contemplated services.

 

    There are sufficient numbers of s. 23 students in the Edmonton area to justify, in both pedagogical and financial terms, the creation of an independent school, such as the one presently existing as well as providing for a continuing course of primary and secondary schooling.  The numbers of students likely to attend Francophone schools in Edmonton, however, are insufficient to mandate under s. 23 the establishment of an independent Francophone school board.  Accordingly, the minority language parents should enjoy the right to representation on the separate school board and the degree of management and control as specified above.  As these rights are not provided at the present time, the Province must enact legislation (and regulations, if necessary) that in all respects is consistent with the provisions of s. 23  of the Charter .

 

Section 29  of the Charter  and Section 17 of the Alberta Act

 

    The rights to management and control conferred by s. 23  of the Charter  upon minority language parents do not infringe a "right or privilege with respect to separate schools" as guaranteed under s. 17 of the Alberta Act.  The powers of management and control accorded minority language groups do not affect any rights in respect of the denominational aspects of education or related non‑denominational aspects.  Rather, the transfer of the powers in respect of management and control amounts only to the regulation of a non‑denominational aspect of education, namely, the language of instruction.

 

School Act and Regulation 490/82

 

    Sections 13, 158 and 159 of the School Act do not prevent authorities from acting in accordance with the Charter , but neither do they guarantee that such compliance will occur.  A declaration of invalidity, however, would not help appellants' position.  First, if the legislation is invalidated, the public authorities in Alberta would presumably be temporarily precluded from exercising their powers so as to change the existing system in order to comply with s. 23.  Second, the real obstacle to the realization of appellants' rights is not the existing legislation but the inaction of the public authorities.  To date, the legislature of Alberta has failed to discharge its s. 23 obligation.  It should delay no longer in putting into place the appropriate minority language education scheme.

 

    Regulation 490/82, which mandates that a minimum of approximately 20 per cent of class time be spent on English language education, may impede the achievement of the purpose of s. 23.  The appellants' rights under s. 23 include a general right for their children to be instructed entirely in the French language.  Although a certain amount of mandatory English language instruction may be a reasonable limitation on s. 23, the respondent has not proven that a full 300 minutes a week of English instruction is necessary in Francophone schools.  The Regulation, therefore, is not saved by s. 1  of the Charter .

 

Cases Cited

 

    Referred to:  Reference Re Education Act of Ontario and Minority Language Education Rights (1984), 10 D.L.R. (4th) 491; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66; Lavoie v. Nova Scotia (Attorney General) (1989), 91 N.S.R. (2d) 184; Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness In Education, [1986] 1 S.C.R. 549; Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Commission des Écoles Fransaskoises v. Saskatchewan (1988), 48 D.L.R. (4th) 315; Reference Re Minority Language Educational Rights (P.E.I.) (1988), 69 Nfld. & P.E.I.R. 236; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377; Brophy v. Attorney‑General of Manitoba, [1895] A.C. 202; Ottawa Roman Catholic Separate Schools Trustees v. Mackell, [1917] A.C. 62; Ottawa Roman Catholic Separate Schools Trustees v. Quebec Bank, [1920] A.C. 230; R. v. Mercure, [1988] 1 S.C.R. 234.

 

Statutes and Regulations Cited

 

Alberta Act, S.C. 1905, c. 3 [reprinted in R.S.C., 1985, App. II, No. 20], s. 17.

 

Canadian Charter of Rights and Freedoms , ss. 15 , 23 , 24(1) , 27 , 29 .

 

Constitution Act, 1867 , s. 93(1) .

 

Constitution Act, 1982 , s. 52 .

 

French Language Regulation, Alta. Reg. 490/82.

 

School Act, R.S.A. 1980, c. S‑3, ss. 13, 158, 159.

 

School Act, S.A. 1988, c. S‑3.1, ss. 4, 5, 6.

 

Societies Act, R.S.A. 1980, c. S‑18.

 

Authors Cited

 

Canada.  Royal Commission on Bilingualism and Biculturalism.  Report of the Royal Commission on Bilingualism and Biculturalism, vol. 2.  Ottawa:  Queen's Printer, 1968.

 

    APPEAL from a judgment of the Alberta Court of Appeal (1987), 54 Alta. L.R. (2d) 212, 80 A.R. 161, 42 D.L.R. (4th) 514, [1987] 6 W.W.R. 331, 33 C.R.R. 207, affirming a judgment of the Alberta Queen's Bench (1985), 39 Alta. L.R. (2d) 215, 64 A.R. 35, 22 D.L.R. (4th) 24, 22 C.R.R. 90.  Appeal allowed.

 

    G. Brent Gawne and Mary T. Moreau, for the appellants.

 

    J. C. Major and B. N. Locke, for the respondent.

 

    E. D. D. Tavender, Q.C., K. M. Eidsvik and Thomas‑Louis Fortin, for the intervener the Attorney General of Canada.

 

    John Cavarzan, for the intervener the Attorney General for Ontario.

 

    Jean‑Yves Bernard and Luc Leblanc, for the intervener the Attorney General of Quebec.

 

    Gabriel Bourgeois, for the intervener the Attorney General for New Brunswick.

 

    Donna J. Miller and Deborah Carlson, for the intervener the Attorney General of Manitoba.

 

    Robert G. Richards, for the intervener the Attorney General for Saskatchewan.

 

    Michel Bastarache and Martine Richard, for the intervener the Association canadienne-française de l'Alberta.

 

    Robert J. Buchan, for the intervener the Commissioner of Official Languages for Canada.

 

    Stephen A. Scott and Kathleen Weil, for the intervener Alliance Quebec.

 

    Paul S. Rouleau, for the interveners the Association canadienne-française de l'Ontario, the Association française des conseils scolaires de l'Ontario and the Association des enseignantes et des enseignants franco‑ontariens.

 

    Colin K. Irving and Allan R. Hilton, for the Quebec Association of Protestant School Boards.

 

    Judith C. Anderson, for the interveners the Edmonton Roman Catholic Separate School District No. 7 and the Alberta School Trustees' Association.

 

//The Chief Justice//

 

    The judgment of the Court was delivered by

 

    The Chief Justice ‑‑ In this appeal the Court is asked to determine whether the educational system in the city of Edmonton satisfies the demands of s. 23  of the Canadian Charter of Rights and Freedoms .   The section reads:

 

    23. (1)  Citizens of Canada

 

(a)whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or

 

(b)who have 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 English or French linguistic minority population of the province,

 

have the right to have their children receive primary and secondary school instruction in that language in that province.

 

    (2)  Citizens of Canada 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 their children receive primary and secondary school instruction in the same language.

 

    (3)  The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province

 

(a)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; and

 

(b)includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

 

    Section 23 is one component in Canada's constitutional protection of the official languages.  The section is especially important in this regard, however, because of the vital role of education in preserving and encouraging linguistic and cultural vitality.  It thus represents a linchpin in this nation's commitment to the values of bilingualism and biculturalism.

 

    The appellants claim that their rights under s. 23 are not satisfied by the existing educational system in Edmonton nor by the legislation under which it operates, resulting in an erosion of their cultural heritage, contrary to the spirit and intent of the Charter .  In particular, the appellants argue that s. 23 guarantees the right, in Edmonton, to the "management and control" of a minority‑language school ‑‑ that is, to a Francophone school run by a Francophone school board.  Our task then is to determine the meaning of s. 23  of the Charter .

 

Constitutional Questions

 

    The following constitutional questions, stated by order of the Court, indicate the range of the issues which this appeal raises:

 

1.Have the rights of the linguistic minority population in metropolitan Edmonton to minority language educational facilities pursuant to s. 23(3)( b )  of the Canadian Charter of Rights and Freedoms  been infringed or denied?

 

2.Does the right to minority language instruction and educational facilities pursuant to s. 23(3)( a )  and s. 23(3)( b )  of the Charter  include management and control by the minority of:

 

(a)the instruction?

 

(b)the educational facilities?

 

If so, what is the nature and extent of such management and control?

 

3.(a)Are the School Act, R.S.A. 1980, c. S‑3, and the regulations passed thereunder inconsistent with or in contravention of s. 23  of the Charter ?

 

(b)If so, is such inconsistency or contravention justified under s. 1  of the Charter ?

 

4.Are the rights guaranteed by s. 23  of the Charter  affected by the provisions of s. 93  of the Constitution Act, 1867 , s. 29  of the Charter  and s. 17 of the Alberta Act?  If so, how?

 

The Parties and Interveners

 

    The appellants Jean‑Claude Mahe and Paul Dubé are parents whose first language learned and still understood is French.  The appellant Angeline Martel is a parent who received her primary school instruction in French.  All three have school age children, and thus qualify under s. 23(1)  of the Charter  as persons who, subject to certain limitations, "have the right to have their children receive primary and secondary school instruction" in the language of the linguistic minority population of the province ‑‑ in this case, the French language.  They may therefore conveniently be called "s. 23 parents", and their children "s. 23 students".  The fourth appellant, the Association de l'école Georges et Julia Bugnet, is an incorporated society whose prime objective is the encouragement of French language education in the province of Alberta.

 

    A number of interveners were granted status in this appeal:  the Attorneys General of Canada, Ontario, Québec, New Brunswick, Manitoba, and Saskatchewan; Alliance Quebec; the Edmonton Roman Catholic Separate School District No. 7; the Alberta School Trustees' Association;  the Association canadienne‑française de l'Alberta; the Quebec Association of Protestant School Boards;  the Association canadienne-française de l'Ontario;  the Association française des conseils scolaires de l'Ontario; the Association des enseignantes et des enseignants franco‑ontariens; and, the Commissioner of Official Languages for Canada.

 

Facts

 

    The appellants were and still are dissatisfied with the provision of French language education in Alberta, particularly in Edmonton.  In 1982 they forwarded a proposal to the Minister of Education of Alberta for a new French‑language public elementary school in Edmonton, which would have the following features:  (1) it would instruct Francophone children exclusively in the French language and in a totally "French" environment; (2) it would be administered by a Committee of Parents under the structure of an autonomous French School Board; and (3) it would have a programme reflecting the French linguistic culture.

 

    The appellants were advised that it was a policy of the Province, acting through the Department of Education, to not create any French school jurisdictions.  The appellants were encouraged to take their proposal to either the Edmonton Roman Catholic Separate School Board or to the Edmonton Public School Board.  The appellants did this, but both Boards rejected their proposal.  The Roman Catholic Separate School Board did decide to conduct a study with respect to whether the needs of Francophone students in Edmonton were being met.  As a result of that study, in June of 1983 the Roman Catholic Separate School Board directed that a Francophone school, École Maurice Lavallée, be established in September of 1984 under the direction of the Edmonton Roman Catholic Separate School District No. 7.

 

    The evidence relating to the chronology of the development of École Maurice Lavallée is somewhat sketchy.  It appears that prior to September 1984, École Maurice Lavallée had been a French immersion school.  After that date it continued to offer an immersion programme in grades 7 and 8, but from kindergarten to grade 6 it became a "French only" school, with admission restricted to students of parents who qualified under s. 23  of the Charter .  Evidence was presented that as of September 1985, the Roman Catholic Separate School Board District No. 7 intended to commence a Junior High programme at the school and to move its immersion course out of Maurice Lavallée over a two‑year period.  After this transition period the school would be comprised entirely of "s. 23 students".  At about the same time, the Roman Catholic Board also adopted a motion that they would promote and pursue the establishment of a grade 9 to 12 Francophone programme at a school named École J.H. Picard.  It appears that as of the date of the hearing before the Court of Appeal, the Roman Catholic Board had in fact established a Francophone high school at École J.H. Picard, although details of the operation of this school have not been provided to us.

 

    At École Maurice Lavallée, French is the language of instruction and administration, the personnel are all Francophone, and the stated aim of the school is "to primarily reflect the cultural heritage of the French linguistic minority in Alberta."  The government emphasized in its argument that the school is not a French immersion school.  The respondent also pointed out that non‑residents are granted admission to the school if they qualify under s. 23  of the Charter  and that the school has a Parent Advisory Committee which is incorporated pursuant to the Societies Act, R.S.A. 1980, c. S‑18, and which acts as an advisory body to the Board of Trustees.

 

    As a result of the failure of the government to accede to all of their requests, the appellants commenced the action which has culminated in the present appeal.  They began the action in October 1983, before the opening of École Maurice Lavallée, but it is clear from the appellants' arguments that they were not and are not satisfied with the system under which École Maurice Lavallée operates.  In their statement of claim, the appellants requested that the court make a variety of declarations pursuant to s. 24(1)  of the Charter  and s. 52  of the Constitution Act, 1982 .  Because of their number and the detail of these declarations, it will be helpful to reproduce them verbatim.  The appellants asked for declarations stating:

 

(a). . . that in the metropolitan area of the City of Edmonton there are sufficient numbers of children whose parents are Canadian citizens and whose first language learned and still understood is that of the French minority language in Alberta, and whose parents have received their primary school instruction in Canada in the French language and who reside in Alberta, to warrant out of public funds the provision to their children of French minority language instruction and the right to receive that instruction in French minority language facilities in the Province of Alberta, pursuant to section 23  of the Charter ;

 

(b). . . that the rights granted pursuant to section 23  of the Charter  entitle the plaintiffs to be granted equivalent powers, rights, and duties as those granted to parents of English speaking children in the Province of Alberta and further, and without restricting the generality of the foregoing:

 

(i)the right to have their children educated in a homogenous French language program lending 100% of the time spent in class to instruction in the French language;

 

(ii)the power to establish school jurisdictions to administer French language educational facilities;

 

(iii)the power to collect taxes and otherwise provide revenue for the operation of French language educational facilities;

 

(iv)the power to hire and fire teachers, and implement curriculum within French language educational facilities;

 

(v)the power to elect school trustees and hire administrative personnel to supervise the operation of school jurisdictions containing French language educational facilities;

 

(c). . . that the rights granted pursuant to section 23  of the Charter  entitle the plaintiffs to be granted the right to have their children educated in facilities which are equivalent to those provided to English speaking children in the province of Alberta.

 

(d). . . that The School Act, its seven amendments and regulations thereto, insofar as they are inconsistent with section 23  of the Charter , are of no force or effect.  [Emphasis added.]

 

    The statement of defence merely stated two propositions regarding the scope of s. 23  of the Charter .  First, that the right to minority language instruction out of public funds arises only where warranted by a sufficient number of "s. 23 students" in an existing school district or division.  Second, that there is a further right to receive such instruction in minority language educational facilities provided out of public funds, but only in those school districts or divisions where the number of "s. 23 students" ‑‑ a number higher than that required for minority language instruction alone ‑‑ so warrants.  The respondent neither admitted nor denied that there were sufficient numbers of "s. 23 students" to trigger either of these rights in any school district or division within the province of Alberta.

 

    At the heart of this appeal is the claim of the appellants that the term "minority language educational facilities" referred to in s. 23(3)(b) includes administration by distinct school boards.  The respondent takes the position that the word "facilities" means a school building.  The respondent submits that the rights of the Francophone minority in metropolitan Edmonton have not been denied because those rights are being met with current Francophone educational facilities.

 

Judgments of the Alberta Courts

 

Court of Queen's Bench

 

    Purvis J. accepted many of the appellants' general arguments and granted them some declaratory relief:  (1985), 22 D.L.R. (4th) 24.  However, he declined to grant the specific declarations which the appellants sought.  In respect of the central issues of (a) the content of the s. 23 rights, and (b) whether the numbers of French language students in Edmonton warranted granting such rights, Purvis J. held, first, that s. 23 bestows "a degree of exclusive management and control over provision and administration of minority language schools" and, second, that "there is a sufficient number of children of the French linguistic minority" in Edmonton to warrant granting such rights.  In his formal judgment he stated that the degree of exclusive management and control required by s. 23 extends to making decisions pertaining to minority language instruction, including:

 

(a)expenditures of funds provided for such instruction and facilities;

 

(b)appointment and direction of those responsible for the administration of such instruction and facilities;

 

(c)establishment of programs of instruction;

 

(d)recruitment and assignment of teachers and other personnel; and

 

(e)making of agreements for education and services for minority language pupils;

 

In his reasons for judgment, Purvis J. also stated that he approved of the Ontario Court of Appeal's judgment in Reference Re Education Act of Ontario and Minority Language Education Rights (1984), 10 D.L.R. (4th) 491, and he noted that the Ontario court had "stated that the necessary degree of control and management might be accomplished if minority representation was guaranteed on local boards or authorities." (Emphasis in original.)

 

    Purvis J. held that his interpretation of s. 23 did not lead to a conflict with the rights of denominational school boards, as guaranteed by s. 17 of the Alberta Act, S.C. 1905, c. 3 (which section replaces, in the case of Alberta, s. 93(1) of the Constitution Act, 1867 , the provision guaranteeing the rights of denominational schools) and protected by s. 29  of the Charter .  He stated that the powers of denominational schools which would be affected by s. 23 were not powers "in respect of denominational schools" and, therefore, the constitutional rights of denominational schools did not conflict with s. 23  of the Charter .

 

    With respect to the request for a declaration that Francophone students should enjoy equivalent educational facilities to those enjoyed by English students, Purvis J. stated (at p. 49):

 

The practicalities imposed by what I have referred to as the two numbers tests [the test for French language instruction and the test for French language facilities] may from time to time result in a minority student, French or English, receiving education in the minority language in facilities which are more or less advantageous than those enjoyed by the majority.

 

    In response to the appellants' demand for a declaration that they possess equivalent powers to those enjoyed by English parents, including those powers with respect to taxing, establishing jurisdictions, electing school trustees, and implementing curriculum, Purvis J. held that s. 23 "does not entitle the plaintiffs to be granted the extensive power and authority they seek" (p. 49).  He held that the rights granted under s. 23 are limited to those which he described in his order (quoted above) and, importantly, he added that "these rights have been recognized in timely fashion by the Edmonton Roman Catholic School Division No. 7" (p. 50).  As noted by the Court of Appeal, this last finding is not easy to understand in light of Purvis J.'s interpretation of s. 23 and his description of the operation of École Maurice Lavallée.  The appellants did not possess the powers which, it appears, they ought to have possessed according to the terms of Purvis J.'s order.

 

    As noted, the appellants also alleged in their statement of claim that certain provisions of the Alberta School Act, R.S.A. 1980, c. S‑3, were in conflict with s. 23  of the Charter .  Purvis J. made a general statement to the effect that the School Act is in conflict with the Charter  to the extent that it does not recognize s. 23 rights, but he did not invalidate any of the sections of the Act.  This holding appeared to be based on the fact that the impugned sections were "permissive" ‑‑ that is, they did not lead to a direct conflict with s. 23.  In respect of the impugned regulation, Regulation 490/82, which requires that approximately 20 per cent of class time be spent teaching English, Purvis J. found that this was a reasonable limitation on the appellants' s. 23 rights.

 

Court of Appeal

 

    Kerans J.A., speaking for the Court of Appeal, dismissed the appellants' appeal, although, like Purvis J., he did accept a number of the appellants' general arguments:  (1987), 42 D.L.R. (4th) 514.  Kerans J.A. first discussed the general nature of s. 23  of the Charter .  He was of the opinion that the words "instruction" and "educational facilit[ies]" in s. 23  of the Charter  "were chosen for their very imprecision" (p. 533).  He reached the following conclusion (at pp. 534‑35 and 538‑39):

 

. . . the two ideas reflected in s. 23 are to offer strong rights to the s. 23 group to prevent assimilation and foster the growth of both official languages everywhere in Canada and, at the same time, interfere as little as possible with provincial legislative jurisdiction over educational institutions.  To the extent that these ideas are in conflict, s. 23 is a compromise.

 

                                                                          . . .

 

    To me, the compromise lies in the creation of two rights, a compromise that withholds full rights from populations too small to exercise them.  The division in s. 23(3) is between the situation where, in a province, a population great enough to warrant independent management of schools exists, and the situation where it does not.  The "where numbers warrant" criterion in s. 23(3)(b) provides the line of division.

 

    Throughout his judgment, Kerans J.A. emphasized that s. 23 does "not embrace any particular modality of education" (p. 533) and that "the widest possible discretion is left to the province in terms of institutional arrangements" (p. 534).  He said:

 

    I reject, as a result, the argument that s. 23 mandates the modalities of an educational system that henceforth shall apply throughout Canada.  I also reject the idea, underlying many arguments on either side of this dispute, that "facility" must mean either a typical local school in the public system, or a local school district.  The word is, as I have said, institutionally neutral.  [Emphasis in original.]

 

    Kerans J.A. briefly considered s. 23(3)(a).  He held that this section "mandates effective language instruction" (p. 535, emphasis in original), which requirement might, in some cases, demand "involvement in the affairs of the school by local s. 23 persons" (p. 535) ‑‑ although Kerans J.A. stated that such involvement would not extend to the governance of the schooling.  In the instant case, Kerans J.A. held that the "numbers" requirement for s. 23(3)(a) had been met, but he did not make any specific finding as to what s. 23(3)(a) required in the Edmonton area.  He noted that the issue was barely argued before him and that, in any event, the section could not support the declarations which the appellants requested.

 

    Kerans J.A. then turned to the main provision at issue in this appeal, s. 23(3)(b).  He held that it is "a cogent extension" of the basic right to instruction guaranteed by s. 23(3)(a), that is, it reinforces "the legal right to schooling by the political right to run schools" (p. 536).  With respect to the content of s. 23(3)(b), Kerans J.A. reiterated his holding that "specific forms were not entrenched" (p. 536), adding that most of the proposals offered by the parties and the interveners ran afoul of this rule.  He agreed with the appellants that the most effective guarantee against "assimilation" of their children is a facility under their exclusive control, but he held that s. 23(3)(b) does not "necessarily create the right to a francophone local school district".  Kerans J.A. stated (at p. 537):

 

    In my view, s. 23(3)(b) guarantees to s. 23 students, where numbers warrant, an educational system (with all its complexity and cost) that not only offers the same quality of education as other systems but is run by the minority language group or its representatives.

 

and (at p. 539):

 

    I therefore conclude that s. 23(3)(b) offers the minority‑language group the right, where numbers warrant, to establish and control an independent school system, but that a province shall select the institutional means by which that right will be implemented.

 

    Kerans J.A. noted that the rights under s. 23(3)(b) are subject to the rights guaranteed to denominational schools under s. 29  of the Charter , but he did not make any finding on this issue.  He stated (at p. 541) that:

 

    None of these issues was canvassed at trial.  Moreover, some appropriate parties including, obviously, separate school districts and separate school supporters, are not before the court in this suit.  As a result, it is impossible to make any precise determination at this time about the limits on the power contained in s. 23(3)(b).  In the end, I can only note that these rights are subject to limits.

 

    On the crucial question of whether the appellants should be awarded the rights provided for under s. 23(3)(b), Kerans J.A. held that the numbers of s. 23 students in the Edmonton area was insufficient to trigger the provision.  He stated that the appellants "have not proven that numbers in Edmonton could provide, at reasonable cost, a new system equal to that offered now" (p. 543).

 

    For the foregoing reasons, Kerans J.A. did not grant the appellants the declaratory relief which they sought.  He also declined to invalidate any of the provisions of the Alberta School Act.  His general view appeared to be that there was no conflict because:  (a) the impugned sections of the Act were permissive; and (b) the existing educational arrangements did in fact satisfy s. 23.  Kerans J.A. noted that it was unnecessary for him to consider Regulation 490/82, but he stated that he agreed with the trial judge that the regulation was a reasonable limit on s. 23  of the Charter .

 

    Finally, Kerans J.A. considered a variety of arguments based upon s. 15  of the Charter  (the equality provision).  Kerans J.A. dismissed all of these arguments, stating, "I cannot see how, in the name of equality, an Albertan can claim for himself the right to establish a school in opposition to the public school" (p. 550).

 

Analysis

 

    The primary issue raised by this appeal is the degree, if any, of "management and control" of a French language school which should be accorded to s. 23 parents in Edmonton.  (The phrase "management and control", it should be noted, is not a term of art:  it appears to have been introduced in earlier s. 23 cases and has now gained such currency that it was utilized by all the groups in this appeal.)  The appellants appear to accept that, with a few exceptions, the government has provided whatever other services or rights might be mandated in Edmonton under s. 23:  their fundamental complaint is that they do not have the exclusive management and control of the existing Francophone schools.  The other issues raised by the appellants in their statement of claim are either consequent upon or secondary to this primary issue.

 

    Because it will not be necessary in this appeal to discuss all of the rights and services which, in the appropriate circumstances, s. 23 might require in Edmonton, or elsewhere, I will attempt to limit my comments to those necessary to resolve the particular dispute at issue.  This appeal is the first occasion on which this Court has considered s. 23(3)  of the Charter  in any detail, and in view of the complexity and importance of the issues raised by the provision it would be imprudent for the Court to go any further.

 

    There are two general questions which must be answered in order to decide this appeal:  (1) do the rights which s. 23 mandates, depending upon the numbers of students, include a right to management and control; and (2) if so, is the number of students in Edmonton sufficient to invoke this right?  I will begin with the first question.

 

    It appeared to be common ground between the parties that if a right to management and control is provided by s. 23, it must be found in the right to "minority language educational facilities" set out in subs. (3)(b).  Before this particular subsection can be examined, however, it is essential to consider two general matters:  (1) the purpose of s. 23; and (2) the relationship between the different subsections and paragraphs which comprise s. 23.  In interpreting s. 23, as in interpreting any provision of the Charter , it is crucial to consider the underlying purpose of the section.  As to the second matter, the structure of s. 23 makes it imperative that each part of the section be read in the context of all of the constituent parts.

 

(1)  The purpose of s. 23

 

    The general purpose of s. 23 is clear:  it is to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language flourishes, as far as possible, in provinces where it is not spoken by the majority of the population.  The section aims at achieving this goal by granting minority language educational rights to minority language parents throughout Canada.

 

    My reference to cultures is significant:  it is based on the fact that any broad guarantee of language rights, especially in the context of education, cannot be separated from a concern for the culture associated with the language.  Language is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it.  It is the means by which individuals understand themselves and the world around them.  The cultural importance of language was recognized by this Court in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 748‑49:

 

Language is not merely a means or medium of expression; it colors the content and meaning of expression.  It is, as the preamble of the Charter of the French Language itself indicates, a means by which a people may express its cultural identity.  [Emphasis added.]

 

Similar recognition was granted by the Royal Commission on Bilingualism and Biculturalism, itself a major force in the eventual entrenchment of language rights in the Charter .  At page 8 of Book II of its report, the Commission stated:

 

Language is also the key to cultural development.  Language and culture are not synonymous, but the vitality of the language is a necessary condition for the complete preservation of a culture.

 

And at p. 19, in a comment on the role of minority language schools, the Commission added:

 

These schools are essential for the development of both official languages and cultures; . . . the aim must be to provide for members of the minority an education appropriate to their linguistic and cultural identity . . .  [Emphasis added.]

 

    In addition, it is worth noting that minority schools themselves provide community centres where the promotion and preservation of minority language culture can occur; they provide needed locations where the minority community can meet and facilities which they can use to express their culture.

 

    A further important aspect of the purpose of s. 23 is the role of the section as a remedial provision.  It was designed to remedy an existing problem in Canada, and hence to alter the status quo.  As Kerans J.A. succinctly put it, "the very existence of the section implies the inadequacy of the present regime" (p. 534).  The remedial nature of s. 23 was clearly acknowledged by this Court in the Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66, at p. 79:

 

The special provisions of s. 23  of the Charter  make it a unique set of constitutional provisions, quite peculiar to Canada.

 

    This set of constitutional provisions was not enacted by the framers in a vacuum.  When it was adopted, the framers knew, and clearly had in mind the regimes governing the Anglophone and Francophone linguistic minorities in various provinces in Canada so far as the language of instruction was concerned.  They also had in mind the history of these regimes, both earlier ones such as Regulation 17, which for a time limited instruction in French in the separate schools of Ontario . . . as well as more recent ones such as Bill 101 and the legislation which preceded it in Quebec.  Rightly or wrongly, ‑‑ and it is not for the courts to decide, ‑‑ the framers of the Constitution manifestly regarded as inadequate some ‑‑ and perhaps all ‑‑ of the regimes in force at the time the Charter  was enacted, and their intention was to remedy the perceived defects of these regimes by uniform corrective measures, namely those contained in s. 23  of the Charter , which were at the same time given the status of a constitutional guarantee.  [Emphasis added.]

 

See also Lavoie v. Nova Scotia (Attorney General) (1989), 91 N.S.R. (2d) 184 (N.S.C.A.), at p. 193.

 

    In my view the appellants are fully justified in submitting that "history reveals that s. 23 was designed to correct, on a national scale, the progressive erosion of minority official language groups and to give effect to the concept of the `equal partnership' of the two official language groups in the context of education."

 

    The remedial aspect of s. 23 was indirectly questioned by the respondent and several of the interveners in an argument which they put forward for a "narrow construction" of s. 23.  The following statements by Beetz J. in a case dealing with s. 16  of the Charter , Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, at p. 578, were relied upon in support of this argument:

 

    Unlike language rights which are based on political compromise, legal rights tend to be seminal in nature because they are rooted in principle.  Some of them, such as the one expressed in s. 7  of the Charter , are so broad as to call for frequent judicial determination.

 

    Language rights, on the other hand, although some of them have been enlarged and incorporated into the Charter , remain nonetheless founded on political compromise.

 

    This essential difference between the two types of rights dictates a distinct judicial approach with respect to each.  More particularly, the courts should pause before they decide to act as instruments of change with respect to language rights.  This is not to say that language rights provisions are cast in stone and should remain immune altogether from judicial interpretation.  But, in my opinion, the courts should approach them with more restraint than they would in construing legal rights.

 

    I do not believe that these words support the proposition that s. 23 should be given a particularly narrow construction, or that its remedial purpose should be ignored.  Beetz J. makes it clear in this quotation that language rights are not cast in stone nor immune from judicial interpretation.  In Reference Re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1176, Wilson J. made the following comments in respect of the above quotation:

 

While due regard must be paid not to give a provision which reflects a political compromise too wide an interpretation, it must still be open to the Court to breathe life into a compromise that is clearly expressed.

 

I agree.  Beetz J.'s warning that courts should be careful in interpreting language rights is a sound one.  Section 23 provides a perfect example of why such caution is advisable.  The provision provides for a novel form of legal right, quite different from the type of legal rights which courts have traditionally dealt with.  Both its genesis and its form are evidence of the unusual nature of s. 23.  Section 23 confers upon a group a right which places positive obligations on government to alter or develop major institutional structures.  Careful interpretation of such a section is wise:  however, this does not mean that courts should not "breathe life" into the expressed purpose of the section, or avoid implementing the possibly novel remedies needed to achieve that purpose.

 

(2)  The Context of s. 23(3)(b):  An Overview of s. 23

 

    The proper way of interpreting s. 23, in my opinion, is to view the section as providing a general right to minority language instruction.  Paragraphs (a) and (b) of subs. (3) qualify this general right:  para. (a) adds that the right to instruction is only guaranteed where the "number of children" warrants, while para. (b) further qualifies the general right to instruction by adding that where numbers warrant it includes a right to "minority language educational facilities".  In my view, subs. (3)(b) is included in order to indicate the upper range of possible institutional requirements which may be mandated by s. 23 (the government may, of course, provide more than the minimum required by s. 23).

 

    Another way of expressing the above interpretation of s. 23 is to say that s. 23 should be viewed as encompassing a "sliding scale" of requirement, with subs. (3)(b) indicating the upper level of this range and the term "instruction" in subs. (3)(a) indicating the lower level.  The idea of a sliding scale is simply that s. 23 guarantees whatever type and level of rights and services is appropriate in order to provide minority language instruction for the particular number of students involved.

 

    The sliding scale approach can be contrasted with that which views s. 23 as only encompassing two rights ‑‑ one with respect to instruction and one with respect to facilities ‑‑ each providing a certain level of services appropriate for one of two numerical thresholds.  On this interpretation of s. 23, which could be called the "separate rights" approach, a specified number of s. 23 students would trigger a particular level of instruction, while a greater, specified number of students would require, in addition, a particular level of minority language educational facilities.  Where the number of students fell between the two threshold numbers, only the lower level of instruction would be required.

 

    The sliding scale approach is preferable to the separate rights approach, not only because it accords with the text of s. 23, but also because it is consistent with the purpose of s. 23.   The sliding scale approach ensures that the minority group receives the full amount of protection that its numbers warrant.  Under the separate rights approach, if it were accepted, for example, that "X" number of students ensured a right to full management and control, then presumably "X ‑ 1" students would not bring about any rights to management and control or even to a school building.  Given the variety of possible means of fulfilling the purpose of s. 23, such a result is unacceptable.  Moreover, the separate rights approach places parties like the appellants in the paradoxical position of forwarding an argument which, if accepted, might ultimately harm the overall position of minority language students in Canada.  If, for instance, the appellants succeeded in persuading this Court that s. 23 mandates a completely separate school board ‑‑ as opposed to some sort of representation on an existing board ‑‑ then other groups of s. 23 parents with slightly fewer numbers might find themselves without a right to any degree of management and control ‑‑ even though their numbers might justify granting them some degree of management and control.

 

    The only way to avoid the weaknesses of the separate rights approach would be to lower the numbers requirement ‑‑ with the result that it would be impractical to require governments to provide more than the minimum level of minority language educational services.  In my view, it is more sensible, and consistent with the purpose of s. 23, to interpret s. 23 as requiring whatever minority language educational protection the number of students in any particular case warrants.  Section 23 simply mandates that governments do whatever is practical in the situation to preserve and promote minority language education.

 

    There are outer limits to the sliding scale of s. 23.  In general, s. 23 may not require that anything be done in situations where there are a small number of minority language students.   There is little that governments can be required to do, for instance, in the case of a solitary, isolated minority language student.  Section 23 requires, at a minimum, that "instruction" take place in the minority language:  if there are too few students to justify a programme which qualifies as "minority language instruction", then s. 23 will not require any programmes be put in place.  However, the question of what is the "minimum" programme which could constitute "instruction", and the further question of how many students might be required in order to warrant such a programme, are not at issue in this appeal and I will not be addressing them.  The question at issue here concerns only the "upper level" of the possible range of requirements under s. 23 ‑‑ that is, the requirements where there are a relatively large number of s. 23 students.

 

(3)  Management and Control under s. 23(3)(b) -- Introduction

 

    Both the trial judge and the Court of Appeal found that s. 23(3)(b) allows for the possibility of securing to minority language parents a measure of management and control.  Purvis J. held that s. 23 bestows "a degree of exclusive management and control over provision and administration of minority language schools" while, as mentioned earlier, Kerans J.A. stated (at p. 539) that:

 

. . . s. 23(3)(b) offers the minority‑language group the right, where numbers warrant, to establish and control an independent school system, but that a province shall select the institutional means by which that right will be implemented.

 

Courts in Ontario, Saskatchewan, Nova Scotia and Prince Edward Island have reached similar conclusions (Reference Re Education Act of Ontario, supra; Commission des Écoles Fransaskoises v. Saskatchewan (1988), 48 D.L.R. (4th) 315 (Sask. Q.B.); Lavoie v. Nova Scotia (Attorney General), supra; and Reference Re Minority Language Educational Rights (P.E.I.) (1988), 69 Nfld. & P.E.I.R. 236 (P.E.I.S.C., App. Div.)

 

    Before directly addressing the question of management and control, I wish to dispose briefly of two arguments raised by the parties.  The first, advanced by the appellants, is that s. 23  of the Charter  should be interpreted in light of the words of ss. 15  and 27  of the Charter .  These provisions read as follows:

 

    15.  (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

 

    27.  This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

 

While I agree that it is often useful to consider the relationship between different sections of the Charter , in the interpretation of s. 23 I do not think it helpful in the present context to refer to either s. 15 or s. 27.  Section 23 provides a comprehensive code for minority language educational rights; it has its own internal qualifications and its own method of internal balancing.  A notion of equality between Canada's official language groups is obviously present in s. 23.  Beyond this, however, the section is, if anything, an exception to the provisions of ss. 15 and 27 in that it accords these groups, the English and the French, special status in comparison to all other linguistic groups in Canada.  As the Attorney General for Ontario observes, it would be totally incongruous to invoke in aid of the interpretation of a provision which grants special rights to a select group of individuals, the principle of equality intended to be universally applicable to "every individual".

 

    The second argument, which was advanced by the respondent, is that s. 23 should be interpreted in light of the legislative debates leading up to its introduction.  This Court has stated that such debates may be admitted as evidence, but it has also consistently taken the view that they are of minimal relevance (see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at pp. 506‑7).  In this case, the evidence from the legislative debates contributes little to the task of interpreting s. 23 and, accordingly, I place no weight upon it.

 

    Having disposed of these preliminary arguments, I will move on to examine whether management and control might be afforded by s. 23 in light of its text and purpose.

 

(4)  Management and Control ‑‑ The Text of s. 23(3)(b)

 

    In my view, the words of s. 23(3)(b) are consistent with and supportive of the conclusion that s. 23 mandates, where the numbers warrant, a measure of management and control.  Consider, first, the words of subs. (3)(b) in the context of the entire section.  Instruction must take place somewhere and accordingly the right to "instruction" includes an implicit right to be instructed in facilities.  If the term "minority language educational facilities" is not viewed as encompassing a degree of management and control, then there would not appear to be any purpose in including it in s. 23.  This common sense conclusion militates against interpreting "facilities" as a reference to physical structures.  Indeed, once the sliding scale approach is accepted it becomes unnecessary to focus too intently upon the word "facilities".  Rather, the text of s. 23 supports viewing the entire term "minority language educational facilities" as setting out an upper level of management and control.

 

    I recognize that the English text of subs. (3)(b) is perhaps ambiguous:  the phrase "minority language educational facilities" could either mean the facilities of the minority, or the facilities for the minority.  The French text, however, is clearer.  It has been stated on several occasions by this Court, that where there is an ambiguity in one version of the Charter , and the other version is less ambiguous, then the meaning of the less ambiguous version should be adopted.  The French version of s. 23(3)(b) reads:

 

    23. . . .

 

    (3)  Le droit . . .

 

b) comprend, lorsque le nombre de ces enfants le justifie, le droit de les faire instruire dans des établissements d'enseignement de la minorité linguistique financés sur les fonds publics.  [Emphasis added.]

 

The underlined phrase in the French text ‑‑ which utilizes the possessive "de la" ‑‑ is more strongly suggestive than the English text that the facilities belong to the minority and hence that a measure of management and control should go to the linguistic minority in respect of educational facilities.

 

    The Ontario Court of Appeal, in the Reference Re Education Act of Ontario, supra, at pp. 526‑28, arrived at a similar interpretation of the text of s. 23(3)(b).  I quote and approve of their reasoning, as it accords with my understanding of s. 23:

 

    When considering these definitions, it must be remembered that s. 23 speaks of "minority language educational facilities" and of "établissements d'enseignement de la minorité linguistique".  The English version is somewhat ambiguous.  The word "minority" can either be an adjective referring only to the word "language" or it can mean "the language educational facilities of the minority".  The latter interpretation would certainly appear to be the meaning of the French version.  It is possessive rather than descriptive.  At least some support for this interpretation can be found in the reference in the opening paragraph of s‑s. (3) where the English version refers to "the language of the English or French linguistic minority population", and the French version refers to "la langue de la minorité francophone ou anglophone".  The educational facilities in s. 23(3)(b) would appear to be those of the minority.

 

    Further support for this conclusion may be found in the fact that para. (3)(a) of s. 23 provides the right to "minority language instruction" which must include, apart from the requisite teachers and teaching materials, either class‑rooms or other physical facilities, like television, for such instruction.  There would be no need for para. (3)(b) if the only purpose were to be a requirement of physical facilities.

 

                                                                          . . .

 

    Further, one might also draw attention to the fact that both paras. (3)(a) and (3)(b) refer to the "numbers warrant" test.  The repetition in para. (3)(b), even though in slightly different terms, would not be necessary unless the facilities there referred to are different from those included in the providing of instruction.

 

                                                                          . . .

 

    Thus, it would appear that where educational facilities are to be provided to assure the realization of the rights accorded by s. 23(3)(b), the facilities to be provided must appertain to or be those of the linguistic minority.  Both the English and the French versions of s. 23(3)(b) must be read together and, in our opinion, they accord in their meaning to support that interpretation.

 

(5)  Management and Control -‑ The Purpose of s. 23

 

    The foregoing textual analysis of s. 23(3)(b) is strongly supported by a consideration of the overall purpose of s. 23.  That purpose, as discussed earlier, is to preserve and promote minority language and culture throughout Canada.  In my view, it is essential, in order to further this purpose, that, where the numbers warrant, minority language parents possess a measure of management and control over the educational facilities in which their children are taught.  Such management and control is vital to ensure that their language and culture flourish.  It is necessary because a variety of management issues in education, e.g., curricula, hiring, expenditures, can affect linguistic and cultural concerns.  I think it incontrovertible that the health and survival of the minority language and culture can be affected in subtle but important ways by decisions relating to these issues.  To give but one example, most decisions pertaining to curricula clearly have an influence on the language and culture of the minority students.

 

    Furthermore, as the historical context in which s. 23 was enacted suggests, minority language groups cannot always rely upon the majority to take account of all of their linguistic and cultural concerns.  Such neglect is not necessarily intentional:  the majority cannot be expected to understand and appreciate all of the diverse ways in which educational practices may influence the language and culture of the minority.  In commenting on various setbacks experienced by the Francophone minority in Ontario, the Court of Appeal of that province noted that "[l]ack of meaningful participation in management and control of local school boards by the Francophone minority made these events possible" (Reference Re Education Act of Ontario, supra, at p. 531).  A similar observation was made by the Prince Edward Island Court of Appeal in Reference Re Minority Language Educational Rights (P.E.I.), supra, at p. 259:

 

It would be foolhardy to assume that Parliament intended to . . . leave the sole control of the program development and delivery with the English majority.  If such were the case, a majority language group could soon wreak havoc upon the rights of the minority and could soon render such a right worthless.

 

I agree with the sentiments expressed in these statements.  If section 23 is to remedy past injustices and ensure that they are not repeated in the future, it is important that minority language groups have a measure of control over the minority language facilities and instruction.

 

(6)  The Meaning of the Phrase "Management and Control"

 

    Section 23 clearly encompasses a right to management and control.  On its own, however, the phrase "management and control" is imprecise and requires further specification.  This can be accomplished by considering what type of management and control is needed in order to fulfill the purpose of s. 23.

 

    The appellants argue for a completely independent Francophone school board.  Much is to be said in support of this position and indeed it may be said to reflect the ideal.  As Kerans J.A. writes in the judgment under appeal (at p. 537):

 

    I accept the argument of the appellants that the most effective guarantee to prevent assimilation is a facility under the exclusive control of that group.  Any diminution in that power inevitably dilutes the uniqueness of the school and opens it to the influence of an insensitive if not hostile majority.  No doubt some elements of control must be yielded, as we will see, but each measure of control lost represents a potential weakening of the decision‑making power, and opens the door to an undermining of the difficult role of the facility.

 

Historically, separate or denominational boards have been the principal bulwarks of minority language education in the absence of any provision for minority representation and authority within public or common school boards.  Such independent boards constitute, for the minority, institutions which it can consider its own with all this entails in terms of opportunity of working in its own language and of sharing a common culture, interests and understanding and being afforded the fullest measure of representation and control.  These are particularly important in setting overall priorities and responding to the special educational needs of the minority.

 

    In some circumstances an independent Francophone school board is necessary to meet the purpose of s. 23.  However, where the number of students enrolled in minority schools is relatively small, the ability of an independent board to fulfill this purpose may be reduced and other approaches may be appropriate whereby the minority is able to identify with the school but has the benefit of participating in a larger organization through representation and a certain exclusive authority within the majority school board.  Under these circumstances, such an arrangement avoids the isolation of an independent school district from the physical resources which the majority school district enjoys and facilitates the sharing of resources with the majority board, something which can be crucial for smaller minority schools.  By virtue of having a larger student population, it can be expected that the majority board would have greater access to new educational developments and resources.  Where the number of s. 23 students is not sufficiently large, a complete isolation of the minority schools would tend to frustrate the purpose of s. 23 because, in the long run, it would contribute to a decline in the status of the minority language group and its educational facilities.  Graduates of the minority schools would be less well‑prepared (thus hindering career opportunities for the minority) and potential students would be disinclined to enter minority language schools.

 

    The Royal Commission on Bilingualism and Biculturalism (Book II, c. 10) discussed these issues and offered a number of examples of the problems which may result from mandating totally separate administration:

 

    425.  The administration of minority‑language schools at the level of the provincial department of Education must be differentiated from the administration of the majority schools, but it should not be completely separated . . . .  The grave danger of a separate department is that the minority schools would constitute an isolated system . . . .  Different policies might be adopted for school consolidation, for the curriculum, or for teaching methods, to the point where educational opportunities and academic standards differed . . . . the majority school system would have the advantage of size; it would be able to allocate more resources to planning and would be better able to test and adopt new policies.

 

    426. . . . no distinction need be made in the administration of majority‑ and minority‑language schools in some areas.  Most departments have a division responsible for school buildings and equipment.  In this area, the same problems must be resolved, whether the language of instruction is French or English, and a separate division for minority‑language schools would mean unnecessary duplication.  The establishment of separate divisions would be wasteful and would also make it more difficult to ensure that all students in the province would have equivalent standards of school accommodation.  Similarly, the accounting and financial divisions should not be divided into separate sections.  Financial procedures should be the same for all schools.  [Emphasis added.]

 

In particular the Commission stressed the advantages of a single administration in its discussion of equipment and physical facilities:

 

    437.  The advantages of a common authority are most obvious in the provision of physical services.  A single transportation system is likely to be more efficient, particularly in rural areas.  Special equipment, ranging from highly specialized scientific instruments to mobile classrooms, can be better utilized.  School maintenance and repairs are not affected by the language used in the classroom.  [Emphasis added.]

 

These quotations are only offered to provide examples, and not as a recipe for how s. 23 should be implemented in any specific situation.

 

    Perhaps the most important point to stress is that completely separate school boards are not necessarily the best means of fulfilling the purpose of s. 23.  What is essential, however, to satisfy that purpose is that the minority language group have control over those aspects of education which pertain to or have an effect upon their language and culture.  This degree of control can be achieved to a substantial extent by guaranteeing representation of the minority on a shared school board and by giving these representatives exclusive control over all of the aspects of minority education which pertain to linguistic and cultural concerns.

 

    To give but one example, the right to tax (which would accompany the creation of an independent school district), is not, in my view, essential to satisfy the concerns of s. 23 with linguistic and cultural security.  Section 23 guarantees that minority schools shall receive public funds, but it is not necessary that the funds be derived through a separate tax base provided adequate funding is otherwise assured.  Similar observations can be made in respect of other features of separate school districts.

 

    It is not possible to give an exact description of what is required in every case in order to ensure that the minority language group has control over those aspects of minority language education which pertain to or have an effect upon minority language and culture.  Imposing a specific form of educational system in the multitude of different circumstances which exist across Canada would be unrealistic and self‑defeating.  The problems with mandating "specific modalities" have been recognized by all of the courts in Canada which have considered s. 23.  At this stage of early development of s. 23 jurisprudence, the appropriate response for the courts is to describe in general terms the requirements mandated.  It is up to the public authorities to satisfy these general requirements.  Where there are alternative ways of satisfying the requirements, the public authorities may choose the means of fulfilling their duties.  In some instances this approach may result in further litigation to determine whether the general requirements mandated by the court have been implemented.  I see no way to avoid this result, as the alternative of a uniform detailed order runs the real risk of imposing impractical solutions.  Section 23 is a new type of legal right in Canada and thus requires new responses from the courts.

 

    In arriving at a general description of the sort of management and control mandated by s. 23, I have borrowed heavily from the statements of Purvis J. and Kerans J.A. in the Alberta courts, as well as from statements by the Ontario Court of Appeal in Reference Re Education Act of Ontario, supra.  The views of these courts show an appreciation of the various considerations involved in ensuring that the minority language group has control over the aspects of minority language education which pertain to or have an effect upon minority language and culture.

 

    In my view, the measure of management and control required by s. 23  of the Charter  may, depending on the numbers of students to be served, warrant an independent school board.  Where numbers do not warrant granting this maximum level of management and control, however, they may nonetheless be sufficient to require linguistic minority representation on an existing school board.  In this latter case:

 

(1)  The representation of the linguistic minority on local boards or other public authorities which administer minority language instruction or facilities should be guaranteed;

 

(2)  The number of minority language representatives on the board should be, at a minimum, proportional to the number of minority language students in the school district, i.e., the number of minority language students for whom the board is responsible;

 

(3)  The minority language representatives should have exclusive authority to make decisions relating to the minority language instruction and facilities, including:

 

(a)expenditures of funds provided for such instruction and facilities;

 

(b)appointment and direction of those responsible for the administration of such instruction and facilities;

 

(c)establishment of programs of instruction;

 

(d)recruitment and assignment of teachers and other personnel; and

 

(e)making of agreements for education and services for minority language pupils.

 

    I do not doubt that in future cases courts will have occasion to expand upon or refine these words.  It is impossible at this stage in the development of s. 23 to foresee all of the circumstances relevant to its implementation.

 

    There are a few general comments I wish to add in respect of the above description.  First, the matter of the quality of education to be provided to the minority students was not dealt with above because, strictly speaking, it does not pertain to the issue of management and control.  It is, of course, an important issue and one which was raised in this appeal.  I think it should be self‑evident that in situations where the above degree of management and control is warranted the quality of education provided to the minority should in principle be on a basis of equality with the majority.  This proposition follows directly from the purpose of s. 23.  However, the specific form of educational system provided to the minority need not be identical to that provided to the majority.  The different circumstances under which various schools find themselves, as well as the demands of a minority language education itself, make such a requirement impractical and undesirable.  It should be stressed that the funds allocated for the minority language schools must be at least equivalent on a per student basis to the funds allocated to the majority schools.  Special circumstances may warrant an allocation for minority language schools that exceeds the per capita allocation for majority schools.  I am confident that this will be taken into account not only in the enabling legislation, but in budgetary discussions of the board.

 

    With respect to funding, the reference point for determining the number of students will normally be the pupils actually receiving minority language education.  During the period in which a minority language education programme is getting started, however, it would seem reasonable to budget for the number of students who can realistically be seen as attending the school once operations are well established.  This may be one example of a special circumstance which calls for a higher allocation of funds for minority education programmes.  It could also be seen, however, as a consideration which would equally be extended to a majority language programme during its start‑up period.

 

    Second, provincial and local authorities may, of course, give minority groups a greater degree of management and control than that described above.  Section 23 only mandates a minimum level of management and control in a given situation; it does not set a ceiling.

 

    Third, there are a variety of different forms of institutional structures which will satisfy the above guidelines.  I have stressed this aspect of the flexibility of s. 23 before, but this feature bears repeating.  The constant in any acceptable scheme of minority representation, however, will be the granting of representation proportional to the number of minority language students who fall under the responsibility of the particular school board.

 

    Fourth, the persons who will exercise the measure of management and control described above are "s. 23 parents" or persons such parents designate as their representatives.  I appreciate that because of the wording of s. 23 these parents may not be culturally a part of the minority language group.  This could occasionally result in persons who are not, strictly speaking, members of the minority language group exercising some control over minority language education.  This would be a rare occurrence, and is not reason to lessen the degree of management and control given to s. 23 parents.

 

    Fifth, I wish to emphasize that the above description is only meant to cover the degree of management and control which, short of a separate school board, is required under s. 23 where the number of s. 23 students is significant enough to warrant moving towards the upper level of the sliding scale.  Other degrees of management and control may be required in situations where the numbers do not justify granting full rights of management and control.  What is required in any case will turn on what the "numbers warrant".

 

    Finally, it should be noted that the management and control accorded to s. 23 parents does not preclude provincial regulation.  The province has an interest both in the content and the qualitative standards of educational programmes.  Such programmes can be imposed without infringing s. 23, in so far as they do not interfere with the linguistic and cultural concerns of the minority.

 

    Having canvassed the degrees of management and control which s. 23 might require, the next step is to determine what degree the numbers in Edmonton warrant granting.  Before I approach this task, however, it will be convenient at this point to consider the issue of denominational rights.

 

(7)  Denominational Schools' Rights

 

    Under the terms of s. 29  of the Charter  any interpretation of s. 23 must be consistent with the rights and privileges of denominational schools.  Section 29 reads:

 

    29.  Nothing in this Charter  abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

 

The rights of denominational, separate or dissentient schools referred to in s. 29 are generally provided for in s. 93(1)  of the Constitution Act, 1867 :

 

    93.  In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions: --

 

(1)Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union:

 

The province of Alberta is governed by a slightly different provision.  When Alberta became a province in 1905, it adopted s. 93  of the British North America Act, 1867 (later renamed the Constitution Act, 1867 ), but with an amendment to s. 93(1).  The amendment is set out in s. 17 of the Alberta Act:

 

    Section 93  of the Constitution Act, 1867 , shall apply to the said province, with the substitution for paragraph (1) of the said section 93, of the following paragraph:

 

    "(1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the North‑west Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances."

 

                                                                          . . .

 

    (3)  Where the expression "by law" is employed in paragraph 3 of the said section 93, it shall be held to mean the law as set out in the said chapters 29 and 30, and where the expression "at the Union" is employed, in the said paragraph 3, it shall be held to mean the date at which this Act comes into force.

 

    The phrase "right or privilege with respect to separate schools" is used in both the Constitution Act, 1867  and the Alberta Act.  (The terms "separate schools" and "denominational schools" are interchangeable.)  In view of the similar contexts in which s. 93(1) and s. 17 were introduced, it can be presumed that the shared phrase carries the same meaning in each provision.  Thus, the jurisprudence on s. 93(1)  of the Constitution Act, 1867  is relevant in interpreting s. 17 of the Alberta Act.  With this approach in mind, I pose the pertinent question:  does conferring upon minority language parents the rights to management and control infringe a "right or privilege with respect to separate schools" as guaranteed under s. 17 of the Alberta Act?

 

    The answer to this question is provided by the recent case of Greater Montreal Protestant School Board v. Quebec (Attorney General), [1989] 1 S.C.R. 377.  In that case, Beetz J., writing for the majority, held that the phrase "Right or Privilege with respect to Denominational Schools" in s. 93(1)  of the Constitution Act, 1867 , means that the section protects powers over denominational aspects of education and those non‑denominational aspects which are related to denominational concerns which were enjoyed at the time of Confederation.  The phrase does not support the protection of powers enjoyed in respect of non‑denominational aspects of education except in so far as is necessary to give effect to denominational concerns.  Beetz J.'s finding is equally applicable to the parallel provision in s. 17 of the Alberta Act.

 

    On this view of s. 93(1)  of the Constitution Act, 1867  and s. 17 of the Alberta Act, the powers of management and control which s. 23 would accord to minority language groups under the interpretation proposed would not affect any rights in respect of the denominational aspects of education or related non‑denominational aspects.  The minority language trustees on a denominational school board who are to be given powers over management and control will be, at the same time, denominational trustees:  in such instances, the denominational board is not required to cede powers to a non‑denominational group of persons, it is only required to give certain of its members authority over minority language education.  The proposed regulation would not remove a denominational board's power to manage and control, or alter its denominational character.

 

    The transfer of the powers in respect of management and control thus amounts to the regulation of a non‑denominational aspect of education, namely, the language of instruction, a form of regulation which the courts have long held to be valid:  see Brophy v. Attorney‑General of Manitoba, [1895] A.C. 202 (P.C.); Ottawa Roman Catholic Separate Schools Trustees v. Mackell, [1917] A.C. 62 (P.C.); and Ottawa Roman Catholic Separate Schools Trustees v. Quebec Bank, [1920] A.C. 230 (P.C.)  I note that this conclusion was also reached by the Ontario Court of Appeal in Reference Re Education Act of Ontario, supra.  That court stated that the provinces enjoy a "full power of regulation", adding on p. 538, that "[s]o long as the legislation regulates education and does not threaten the existence of the separate schools or interfere with their denominational character it is valid".

 

    Before leaving this matter, I wish to address briefly two arguments presented by the government of Alberta.  The first argument is that the financial powers enjoyed by denominational schools, in particular their powers to impose taxes, would be infringed by giving minority trustees management and control.  In view of my interpretation of s. 23 this is not really an issue: unless numbers warrant an independent school board, the interpretation does not give minority groups the power to impose taxes, it only grants them powers in relation to expenditures.  This power, like the other powers granted to the minority language group in respect of management and control, does not change the denominational character of the separate schools.  If numbers warrant an independent minority‑language school board, there need be no interference with denominational rights for it is possible to constitute minority language boards along denominational lines.

 

    It is then argued, however, that problems could arise in situations where the minority language students in question are partly "denominational" students and partly "non‑denominational" students.  On the premise that denominational school boards could not be forced to take in non‑denominational students, the possibility of "quadripartite" school organizations arising was discussed.  In such a system "minority language separate schools", "minority language public schools", "majority language separate schools" and "majority language public schools" would exist side by side.  I do not doubt that the rights of denominational school boards may, in some cases, result in limitations on the type of reorganization which might otherwise be required under s. 23.  Denominational school guarantees could split up an eligible group of minority language students in such a way as to preclude the creation of a minority language school which would otherwise be required.  But such a possibility, though unfortunate, does not affect the validity of the interpretation I have given to s. 23.  It is also worth mentioning that because of the strong geographical congruence between denominational groups and minority language groups in Canada, it would be rare for such difficulties to arise.  There do not appear to be any problems of this sort in the case before us and I think it would be better to deal with such problems if and when they arise.

 

(8)  The "Numbers Warrant" Provision

 

    What is being considered when a court addresses the "numbers warrant" question ‑‑ existing demand, potential demand, or something else?  The appellants' position was that the existing demand for Francophone services is not a reliable indicator of demand because the demand for any service will to some extent follow the provision of that service.  The respondent, on the other hand, argued that the courts cannot simply use the total number of potential s. 23 students as a gauge, since it is highly unlikely that all of these students will take advantage of a proposed service.  There is some force to both of these arguments; accordingly, the approach I have taken mediates between the concerns which they raise.  In my view, the relevant figure for s. 23 purposes is the number of persons who will eventually take advantage of the contemplated programme or facility.  It will normally be impossible to know this figure exactly, yet it can be roughly estimated by considering the parameters within which it must fall ‑‑ the known demand for the service and the total number of persons who potentially could take advantage of the service.

 

    The numbers warrant provision requires, in general, that two factors be taken into account in determining what s. 23 demands: (1) the services appropriate, in pedagogical terms, for the numbers of students involved; and (2) the cost of the contemplated services.  The first, pedagogical requirements, recognizes that a threshold number of students is required before certain programmes or facilities can operate effectively.  There is no point, for example, in having a school for only ten students in an urban centre.  The students would be deprived of the numerous benefits which can only be achieved through studying and interacting with larger numbers of students.  The welfare of the students, and thus indirectly the purposes of s. 23, demands that programmes and facilities which are inappropriate for the numbers of students involved should not be required.

 

    Cost, the second factor, is not usually explicitly taken into account in determining whether or not an individual is to be accorded a right under the Charter .  In the case of s. 23, however, such a consideration is mandated. Section 23 does not, like some other provisions, create an absolute right.   Rather, it grants a right which must be subject to financial constraints, for it is financially impractical to accord to every group of minority language students, no matter how small, the same services which a large group of s. 23 students are accorded.  I note, however, that in most cases pedagogical requirements will prevent the imposition of unrealistic financial demands upon the state.  Moreover, the remedial nature of s. 23 suggests that pedagogical considerations will have more weight than financial requirements in determining whether numbers warrant.

 

    In my view, the phrase "where numbers warrant" does not provide an explicit standard which courts can use to determine the appropriate instruction and facilities (in light of the aforementioned considerations) in every given situation.  The standard will have to be worked out over time by examining the particular facts of each situation which comes before the courts, but, in general, the inquiry must be guided by the purpose of s. 23.  In particular, the fact that s. 23 is a remedial section is significant, indicating that the section does not aim at merely guaranteeing the status quo.

 

    Thus, a number of complex and subtle factors must be taken into account beyond simply counting the number of students.  For example, what is appropriate may differ between rural and urban areas.  Another factor to consider is that s. 23 speaks of "wherever in the province" the "numbers warrant".  This means that the calculation of the relevant numbers is not restricted to existing school boundaries (although the redrawing of school boundaries will often involve a certain cost which must be taken into account).  On this point the following was stated at p. 522 of the Reference Re Education Act of Ontario, supra:

 

    It must be remembered that s. 23 imposes a duty upon the Legislature to provide minority language instruction "wherever in the province the number of children of citizens who have such a right is sufficient" (emphasis added).  Since the numbers test should be applied on a local basis throughout the province, any arbitrary limitation applied across the province without any qualification or exemption may be difficult to justify.  The numbers fixed will not always be immutable.  They may vary with geographic regions and the type of instruction to be provided.

 

In some instances it may be necessary to provide transportation for students, or perhaps to provide boarding, in order to meet the requirements of s. 23.  It is not necessary to deal with these issues in this appeal, but I mention them as examples of the types of considerations which it may be necessary to consider in other s. 23 cases.  The great variety of circumstances which may face the courts shows why a rigid formula for implementing s. 23 should be avoided.

 

(9)  The Situation in Edmonton

 

    We can now examine the facts underlying this appeal to determine whether s. 23 parents in Edmonton should be accorded a measure of management and control as contemplated by s. 23.

 

    At the time of the trial, there were approximately 2,948 citizens in Edmonton whose first language learned and still understood was French and who, therefore, qualified under s. 23  of the Charter .  These citizens had approximately 4,127 children from birth to age 19, of whom 3,750 were between five and 19 years of age.  The vast majority of these parents were separate school supporters.  The enrollment at the existing Francophone school, École Maurice Lavallée was 242 students from kindergarten to grade 6, with room for more.  No one has been turned away for lack of space.  The capacity of the school is 720 students.  At the time of trial there were 315 in attendance, of whom 73 were in grades 7 and 8 immersion programme.

 

    It does not appear that any financial or pedagogical problems have accompanied the operation of the existing Francophone school, École Maurice Lavallée.  In view of the substantial numbers of students involved I do not think that such problems would be likely.  It is, no doubt, slightly more expensive on a per student basis to operate a school with 242 students as compared to a school with 1,000 students.  However, the remedial nature of s. 23 means that such differences in cost, if not unreasonable, must be accepted.  It seems clear that even at the present level of demand, there are sufficient students to justify in both pedagogical and financial terms the creation of an independent school, such as the one presently existing as well as providing for a continuing course of primary and secondary schooling.  A recognition of this fact appeared to be common ground between all of the parties involved in this appeal, as well as by both of the Alberta courts.

 

    Having established that the existing Francophone school in Edmonton is required in order to comply with s. 23, I believe it is reasonable to require, in addition, that the minority language parents enjoy the right to representation on the separate school board and the degree of management and control that this entails (as specified above).  In general, wherever the numbers of students justify creating a minority language school, these numbers would also justify granting the minority language parents a measure of management and control.   Because a Francophone school already exists in Edmonton, the pedagogical and financial effects of granting management and control in the case at hand are not likely to be great.  Reorganization of the relevant school board to provide for a degree of management and control would not significantly change the pedagogical structure, nor would it be very expensive.  At the time of the trial there were approximately 424,622 students enrolled in the public or separate school systems in Alberta in some 146 different jurisdictions.  These jurisdictions are administered by Boards of Trustees elected by eligible voters within the boundaries of the districts.  Forty‑seven of these jurisdictions had fewer than 500 students; of these 25 had fewer than 250 students; of these 8 had fewer than 100 students; and of these 4 had 50 students or less.  Of these same 47 districts: 35 were separate school districts whose formation was guaranteed by constitutional guarantees under s. 93  of the Constitution Act, 1867 , s. 17 of the  Alberta Act, and s. 29  of the Charter ; three were in National Parks and subject to federal‑provincial agreements; two were consolidated school districts formed under now defunct legislation; one was a regional district formed pursuant to an agreement of three other school jurisdictions; and of the remaining six, four were formed in 1937 and the other two in 1966.

 

    In Edmonton there were approximately 116,788 students enrolled in the public and separate school systems in some nine school jurisdictions.  Five of these districts had less than 5,000 students (specifically, the numbers of students in these districts were 4,187 ‑ 3,043 ‑ 2,600 ‑ 758, and 381).

 

    Although some of the smaller school districts in Edmonton and Alberta were formed as a result of special circumstances, s. 23 is itself a special circumstance.  Overall, I think it clear that the numbers described above show that requiring a Francophone school, together with a degree of management and control to the parents, is, in respect of a group of students who, at a minimum, number at least 242, a reasonable requirement.  At the same time, I am not satisfied on the basis of present evidence that it has been established that numbers of students likely to attend Francophone schools in Edmonton are sufficient to mandate under s. 23 the establishment of an independent Francophone school board.  In reaching this conclusion, I have considered the likely demand upon a Francophone school, and have also allowed for additional numbers of students that will come from an extension of the programme to include secondary school grades.  If actual experience reveals a larger than anticipated demand, however, it may be necessary to reconsider whether the appropriate degree of management and control mandates the establishment of an independent minority language school board.

 

    To conclude: the numbers of minority language students in Edmonton warrant as a minimum the provision of s. 23 rights by way of minority language representation on school boards administering minority language schools in the manner and with the authority above described.  These rights are not provided at the present time.  The Province must enact legislation (and regulations, if necessary) that are in all respects consistent with the provisions of s. 23  of the Charter .

 

Remedies

 

    The appellants' statement of claim, as I have indicated, includes requests for a number of declarations.  These declarations fall into two general groups: (1) in respect of the alleged invalidity of certain provisions of the School Act of Alberta; and (2) in respect of the rights which must be accorded to s. 23 parents in Edmonton.

 

    The appellants did not specify in their statement of claim which provisions of the Alberta legislation they desired to have struck down, but it appears from their arguments that their main concern was with provisions 13, 158, and 159 of the School Act, and Regulation 490/82 passed thereunder:

 

13(1)  The Minister may establish any portion of Alberta as a public school district.

 

158  Subject to section 159, all pupils in school shall be taught in the English language.

 

159(1) A board may authorize

 

(a)that French be used as a language of instruction, or

 

(b) that any other language be used as a language of instruction in addition to the English language, in all or any of its schools.

 

(2)  A board authorizing French or any other language as a language of instruction shall comply with the regulations of the Minister.

 

(3)  Notwithstanding section 80, a board, subject to the regulations of the Minister, may employ one or more competent persons to give instruction in French or any other language to all pupils whose parents have signified a willingness that they should receive it.

 

(4)  The course of instruction must not supersede or in any way interfere with the instruction required by the regulations of the Minister and by this Act.

 

Regulation 490/82:

 

1(1)  A board shall not commence a program that uses French as the language of instruction in a school unless it has:

 

(a) passed and delivered to the Minister a resolution authorizing the use of French as the language of instruction, and

 

(b) made provision satisfactory to the Minister for the use of English as the language of instruction for all pupils who would normally attend the school and whose parents desire such instruction.

 

(2)  The course of study and instructional materials for the program shall be those prescribed or approved pursuant to section 11(2) of the School Act.

 

2  Where, pursuant to section 159 of the School Act, a board authorizes a program that uses French as a language of instruction,

 

(a) if the program commences in grade 1, then with respect to grades 1 and 2,

 

(i) the amount of time French is used as the language of instruction,

 

(ii) the nature and extent of English language instruction, if any, and

 

(iii) the point at which the English language arts program, if any, is initiated

 

is in the discretion of the board;

 

(b)  regardless of when the program commences, after grade 2,

 

(i) not less than 300 minutes per week of instruction in English language arts shall be provided for each pupil in each of grades 3, 4, 5, and 6,

 

(ii) not less than 150 hours per year of instruction in English language arts shall be provided for each pupil in each of grades 7, 8 and 9, and

 

(iii) not less than 125 hours per year or the equivalent of 5 credits per year of instruction in English language arts shall be provided for each pupil in each of grades 10, 11 and 12.

 

3  The French Language Regulation (Alta. Reg. 115/82) is repealed.

 

    As a preliminary matter, I note that the School Act has recently been revised; ss. 158 and 159 of the old Act have been replaced by the following sections of the School Act, S.A. 1988, c. S‑3.1:

 

4  Every student is entitled to receive school instruction in English.

 

5(1) If an individual has rights under section 23  of the Canadian Charter of Rights and Freedoms  to have his children receive school instruction in French, his children are entitled to receive that instruction in accordance with those rights wherever in the Province those rights apply.

 

(2) The Lieutenant Governor in Council may make regulations respecting anything that may be required to give effect to subsection (1).

 

6(1) A board may authorize the use of French or any other language as a language of instruction.

 

(2) The Minister may make regulations governing the provision of instruction in any language authorized under subsection (1).

 

In view of these new provisions, the possibility that the constitutionality of the School Act might be moot was raised before us, although this argument was not forcefully advanced.  As this Court has stated on various occasions (e.g., R. v. Mercure, [1988] 1 S.C.R. 234), courts retain an inherent discretion to deal with cases which may have technically become moot.  In view of the similarity of the language between the old and new provisions, and in view of the fact that the appellants' arguments apply to both sets of provisions (indeed, both the appellants and the respondent made submissions with respect to the new provisions), I do not think that we should refuse to consider the constitutionality of the School Act.

 

    As was noted by both of the Alberta courts, ss. 13, 158 and 159 of the School Act are "permissive" provisions, that is, they do not prevent authorities from acting in accordance with the Charter , but neither do they guarantee that such compliance will occur.  There are several factors to consider when deciding whether this situation should lead to a declaration of invalidity.

 

    First, the effect of a declaration of invalidity should be considered.  In this case, as it is impossible for the Court to rewrite the impugned legislation, the result of a declaration of invalidity would be to create a legislative vacuum.  This result would not help the position of the appellants.  Indeed, the appellants might be worse off, because if the above legislation is invalidated the public authorities in Alberta would presumably be temporarily precluded from exercising their powers so as to change the existing system in order to comply with s. 23.

 

    The second factor is that the right which the appellants possess under s. 23 is not a right to any particular legislative scheme, it is a right to a certain type of educational system.  What is significant under s. 23 is that the  appellants receive the appropriate services and powers; how they receive these services and powers is not directly at issue in determining if the appellants have been accorded their s. 23 rights.  It is true that if the existing legislation has the effect, either directly or indirectly, of preventing the realization of a Charter  right then, as this Court has stated on numerous occasions, the legislation should be invalidated.  However, it is not clear that the existing legislation in Alberta is a bar to the realization of the appellants' rights.  The real obstacle is the inaction of the public authorities.  The government could implement a scheme within the existing legislation to ensure that these s. 23 parents and other s. 23 parents in the province receive what is due to them.  The problem is that they have not done so.

 

    For these reasons I think it best if the Court restricts itself in this appeal to making a declaration in respect of the concrete rights which are due to the minority language parents in Edmonton under s. 23.  Such a declaration will ensure that the appellants' rights are realized while, at the same time, leaving the government with the flexibility necessary to fashion a response which is suited to the circumstances.  As the Attorney General for Ontario submits, the government should have the widest possible discretion in selecting the institutional means by which its s. 23 obligations are to be met; the courts should be loath to interfere and impose what will be necessarily procrustean standards, unless that discretion is not exercised at all, or is exercised in such a way as to deny a constitutional right.  Once the Court has declared what is required in Edmonton, then the government can and must do whatever is necessary to ensure that these appellants, and other parents in their situation, receive what they are due under s. 23.  Section 23  of the Charter  imposes on provincial legislatures the positive obligation of enacting precise legislative schemes providing for minority language instruction and educational facilities where numbers warrant.  To date, the legislature of Alberta has failed to discharge that obligation.  It must delay no longer in putting into place the appropriate minority language education scheme.

 

    Regulation 490/82, which mandates that a minimum of approximately 20 per cent of class time be spent on English language education, is not "permissive" legislation and is, therefore, on a different footing from the other impugned provisions.  In their statement of claim the appellants asked for a declaration to the effect that 100 per cent of their children's instruction should be in French.  The appellants' position is that the regulation directly contradicts s. 23.  I agree that Regulation 490/82 may impede the achievement of the purpose of s. 23.  The appellants' rights under s. 23 include a general right for their children to be instructed entirely in the French language.  However, by virtue of s. 1  of the Charter , "reasonable" limitations of Charter  rights are permitted.  Both of the Alberta courts held that if Regulation 490/82 does in fact infringe s. 23, it could nevertheless be upheld as a reasonable limitation on s. 23 rights.  In support of this finding they referred to evidence that a knowledge of English is required for any student in Alberta.

 

    I am prepared to agree with the Alberta courts that a certain amount of mandatory English language instruction is a reasonable limitation on s. 23.  It seems indisputable that some English language education is important for all students in Alberta.  It is not self‑evident, however, that a full 300 minutes a week of English instruction is necessary in Francophone schools.  It is for the respondent to prove that this limit infringes the s. 23 right no more than is necessary, and in the absence of such a demonstration I conclude that the Regulation is not saved by s. 1.  This conclusion does not, of course, preclude the respondent from attempting in the future to prove that some mandatory English instruction, perhaps even 300 minutes per week, is a reasonable limit under s. 1.

 

Conclusion

 

    In order to comply with s. 23  of the Charter , minority language parents in Edmonton should be granted management and control over minority language instruction and facilities in Edmonton in accordance with the following principles:

 

(1) The representation of the linguistic minority on local boards or other public authorities which administer minority language instruction or facilities should be guaranteed;

 

(2) The number of minority language representatives on the board should be, at a minimum, proportional to the number of minority language students in the school district, i.e., the number of minority language students for whom the board is responsible;

 

(3) The minority language representatives should have exclusive authority to make decisions relating to the minority language instruction and facilities, including:

 

(a)expenditures of funds provided for such instruction and facilities;

 

(b)appointment and direction of those responsible for the administration of such instruction and facilities;

 

(c)establishment of programs of instruction;

 

(d)recruitment and assignment of teachers and other personnel; and

 

(e)making of agreements for education and services for minority language pupils.

 

To the above declaration I add that, as I explained earlier, the quality of education provided to the minority language group in Edmonton should be on a basis of reasonable equality with the majority, although it need not be identical, and public funding adequate for this purpose must be provided.

 

Constitutional Questions

 

    In light of the foregoing discussion, the constitutional questions may be answered as follows:

 

Question 1:Have the rights of the linguistic minority population in metropolitan Edmonton to minority language educational facilities pursuant to s. 23(3)( b )  of the Canadian Charter of Rights and Freedoms  been infringed or denied?

 

Answer:                       Yes.

 

Question 2:Does the right to minority language instruction and educational facilities pursuant to s. 23(3)( a )  and s. 23(3)( b )  of the Charter  include management and control by the minority of:

 

(a)the instruction?

 

(b)the educational facilities?

 

If so, what is the nature and extent of such management and control?

 

Answer:In metropolitan Edmonton, s. 23 grants management and control by the minority in respect of instruction and facilities, in the terms set out in the above declaration.

 

Question 3:  (a)Are the School Act, R.S.A. 1980, c. S‑3, and the regulations passed thereunder inconsistent with or in contravention of s. 23  of the Charter ?

 

Answer:No, with the exception of Reg. 490/82 which prima facie infringes s. 23.

 

    (b)If so, is such inconsistency or contravention justified under s. 1  of the Charter ?

 

Answer:The respondent has not shown that Regulation 490/82 is justifiable under s. 1  of the Charter .

 

Question 4:Are the rights guaranteed by s. 23  of the Charter  affected by the provisions of s. 93  of the Constitution Act, 1867 , s. 29  of the Charter  and s. 17 of the Alberta Act?  If so, how?

 

Answer:                No.

 

    As the appellants were substantially successful in this appeal, they are granted costs before this Court and before both of the Alberta courts.

 

    Appeal allowed with costs.

 

    Solicitors for the appellants:  G. Brent Gawne & Associates, Edmonton.

 

    Solicitors for the respondent:  Bennett, Jones, Calgary.

 

    Solicitors for the intervener the Attorney General of Canada:  Fenerty, Robertson, Fraser & Hatch, Calgary; Department of Justice, Ottawa.

 

    Solicitor for the intervener the Attorney General for Ontario:  The Ministry of the Attorney General, Toronto.

 

    Solicitors for the intervener the Attorney General of Quebec:  Bernard, Roy & Associés, Montréal.

 

    Solicitor for the intervener the Attorney General for New Brunswick:  The Office of the Attorney General, Fredericton.

 

    Solicitor for the intervener the Attorney General of Manitoba:  The Attorney General of Manitoba, Winnipeg.

 

    Solicitor for the intervener the Attorney General for Saskatchewan:  Brian Barrington‑Foote, Regina.

 

    Solicitors for the Association canadienne-française de l'Alberta:  Lang, Michener, Lash, Johnston, Ottawa.

 

    Solicitors for the intervener the Commissioner of Official Languages for Canada:  Johnson & Buchan, Ottawa.

 

    Solicitor for the intervener Alliance Quebec:  Stephen A. Scott, Montréal.

 

    Solicitors for the interveners the Association canadienne-française de l'Ontario, the Association française des conseils scolaires de l'Ontario and the Association des enseignantes et des enseignants franco‑ontariens:  Genest Murray DesBrisay O'Donnell Murray, Toronto.

 

    Solicitors for the intervener the Quebec Association of Protestant School Boards:  Colin K. Irving and Allan R. Hilton, Montréal.

 

    Solicitor for the interveners the Edmonton Roman Catholic Separate School District No. 7 and the Alberta School Trustees' Association:  Judith C. Anderson, Edmonton.