Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 SCR 839

Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839

 

IN THE MATTER OF an appeal from an opinion

of the Manitoba Court of Appeal;

 

and

 

 

IN THE MATTER OF a reference to the

Manitoba Court of Appeal in accordance with

the Constitutional Questions Act, c. C180,

C.C.S.M. by the Lieutenant Governor in Council

for hearing and consideration of questions

relating to the Canadian Charter of Rights and

Freedoms being Part I of the Constitution Act,

1982 and The Public Schools Act, c. P250,

C.C.S.M. and ss. 79(3), 79(4) and 79(7) thereof

 

and

 

The Fédération provinciale des comités de

parents Inc.                                                                                        Appellant

 

v.

 

The Attorney General of Manitoba                                                  Respondent

 

and

 

The Attorney General of Canada,

the Conseil jeunesse provincial Inc.,

the Société franco‑manitobaine,

the Commission nationale des parents

francophones, the Fédération des communautés

francophones et acadienne du Canada and

the Commissioner of Official Languages                                         Interveners

 

Indexed as:  Reference re Public Schools Act (Man.), s. 79(3), (4) and (7)

 

File No.:  21836.

 

1992:  December 3; 1993:  March 4.

 

Present:  Lamer C.J. and La Forest, L'Heureux‑Dubé, Gonthier, Cory, McLachlin and Iacobucci JJ.

 

on appeal from the court of appeal for manitoba

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Minority language educational rights ‑‑ Educational facilities -- Whether rights to minority language educational facilities include a right to distinct physical setting ‑‑ Canadian Charter of Rights and Freedoms, s. 23 .

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Minority language educational rights ‑‑ Right of "management and control" -- Section 23  of Charter of Rights  conferring upon minority language parents a right to manage and control minority language educational facilities ‑‑ Whether Manitoba Public Schools Act meets s. 23's requirement -- Canadian Charter of Rights and Freedoms, s. 23  ‑‑ The Public Schools Act, R.S.M. 1987, c. P250.

 

                   Appeal ‑‑ Mootness ‑‑ Respondent alleging that issues raised in this appeal resolved to a large extent by a Supreme Court of Canada decision rendered shortly after Court of Appeal's judgment -- Whether appeal to Supreme Court moot.

 

                   The Lieutenant Governor in Council of Manitoba referred to the Court of Appeal of that province three constitutional questions concerning the validity of certain provisions of the Manitoba Public Schools Act in view of ss. 15  and 23  of the Canadian Charter of Rights and Freedoms .  The second and third questions, in issue in this appeal, read as follows:

 

(b)What does the right to have one's children receive instruction "in minority language educational facilities" guaranteed by section 23(3)(b)  of the Charter  mean?  In particular, does it include the right to have one's children receive instruction in a distinct physical setting?

 

(c)(i)Do section 23 and section 15 of the Charter  grant any right of management or control in connection with section 23's guarantees of French language instruction and facilities?

 

(ii)If so, do the provisions in Part I, II and III of The Public Schools Act concerning the formation of school divisions and districts, the election of school boards, and the powers and duties of school boards meet Manitoba's constitutional obligations with reference to such a right of management and control?  If not, in what essential elements do the provisions fail to do so?

 

                   A majority of the Court of Appeal found that the rights guaranteed by s. 23(3)( b )  of the Charter  include a right to a distinct setting for the provision of minority language education but that neither s. 23 nor s. 15  of the Charter  conferred on the linguistic minority any right of management and control.  The Court of Appeal's judgment was handed down before Mahe v. Alberta, [1990] 1 S.C.R. 342.

 

                   Held:  The appeal should be allowed.  Question (b) should be answered in the affirmative.  Question (c)(i) should be answered in the affirmative on the basis of s. 23  of the Charter .  Question (c)(ii) should be answered in the negative.

 

(1)  Mootness

 

                   Despite the resolution of much of the substance of the reference in the decision of this Court in Mahe, this appeal is not moot.  The Manitoba Public Schools Act has not been struck down, and Mahe did not determine how the rights guaranteed under s. 23  of the Charter  must be interpreted in Manitoba.  The constitutional questions as stated are within the scope of the original reference and, further, the Court of Appeal's decision is in conflict with Mahe.

 

(2)  Constitutional Questions

 

                   The general right of instruction conferred by s. 23  of the Charter , read in the context of the section as a whole, necessarily requires that the educational facilities be of or belong to the linguistic minority group, and includes the right to a distinct physical setting and facilities.  While a general right to distinct physical settings is an integral aspect of the provision of educational and cultural services, it is not necessary at this point to elaborate what might satisfy this requirement in a given situation.  Pedagogical and financial considerations would both play a role in determining what is required.  Obviously the financial impact of the provision of specific facilities will vary from region to region.  The assessment of what will constitute appropriate facilities in Manitoba should only be undertaken on the basis of a distinct geographic unit within the province.  The exercise of a full complement of the right to a distinct physical setting is related to the application of the "sliding-scale approach" developed by this Court in Mahe.

 

                   In accordance with the principles set out in Mahe, s. 23 of the Charter  confers upon minority language parents a right to manage and control the educational facilities in which their children are taught.  Under the "sliding-scale approach", the degree of management and control depends on the number of actual or potential children who will eventually take advantage of the contemplated programme or facility.

 

                   The provisions of The Public Schools Act do not provide for the implementation of the rights of the linguistic minority in respect of their educational facilities, including appropriate mechanisms for management and control.  This Court should be loath, however, to detail what legislation the Manitoba Government must enact in order to meet its constitutional obligations.  Governments should have the widest possible discretion in selecting the institutional means by which their s. 23 obligations are to be met.  Arrangements and structures which are prejudicial, hamper, or simply are not responsive to the needs of the minority, must be avoided and measures which encourage the development and use of minority language facilities should be considered and implemented.  In Manitoba, even accepting the most conservative projections, the number of students who will eventually take advantage of the contemplated programme seem to fall clearly on the high end of the "sliding scale".  The number of potential French language students thus warrants the establishment of an independent French language school board in Manitoba under the exclusive management and control of the French language minority.  The Government of Manitoba must, without delay, put into place both a regime and a system which permit the Francophone minority to exercise its rights effectively, taking into account the general requirements spelled out in Mahe.   

 

Cases Cited

 

                   Applied:  Mahe v. Alberta, [1990] 1 S.C.R. 342; referred to:  Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; Reference re Goods and Services Tax, [1992] 2 S.C.R. 445; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712; 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.

 

Statutes and Regulations Cited

 

Canadian Charter of Rights and Freedoms , ss. 15 , 23 , 27 .

 

Constitution Act, 1982 , s. 52(1) .

 

Public Schools Act, R.S.M. 1987, c. P250, s. 79(3), (4), (7).

 

Authors Cited

 

Green, Maurice A.  "The Continuing Saga of Litigation:  Minority Language Instruction" (1990‑91), 3 Education & Law Journal 204.

 

Hogg, Peter W. Constitutional Law of Canada, vol. 2, 3rd ed. (Supplemented).  Scarborough:  Carswell, 1992 (loose-leaf).

 

Nicholls, Glenn, and Guy L. Roy.  A Report on Major Developments in French‑language Education in Manitoba from 1970 to 1987. Winnipeg:  Department of Education, July 18, 1988.

 

                   APPEAL from a judgment of the Manitoba Court of Appeal (1990), 64 Man. R. (2d) 1, 67 D.L.R. (4th) 488, [1990] 2 W.W.R. 289, concerning the validity of certain provisions of the Manitoba Public Schools Act.  Appeal allowed.

 

                   Laurent J. Roy, Q.C., and Michel L. J. Chartier, for the appellant and the intervener the Conseil jeunesse provincial Inc.

 

                   Marva J. Smith and Deborah Carlson, for the respondent.

 

                   Warren J. Newman and Jean‑Charles Ducharme, for the intervener the Attorney General of Canada.

 

                   Michel Bastarache, for the interveners the Société franco‑manitobaine and the Commission nationale des parents francophones.

 

                   François Dumaine, for the intervener the Fédération des communautés francophones et acadienne du Canada.

 

                   Stephen B. Acker, for the intervener the Commissioner of Official Languages.

//Lamer C.J.//

 

                   The judgment of the Court was delivered by

 

                   Lamer C.J. -- This case involves a constitutional reference to determine whether certain provisions in Manitoba's Public Schools Act, R.S.M. 1987, c. P250, conform with s. 23  of the Canadian Charter of Rights and Freedoms .

 

Facts

 

                   On September 1986, the appellant, Fédération provinciale des comités de parents Inc., along with certain individual co-plaintiffs, filed a statement of claim in the Manitoba Court of Queen's Bench, requesting relief pursuant to s. 23  of the Charter .  The appellant eventually agreed to proceed by way of a reference.

 

                   By Order in Council dated January 20, 1988, the Lieutenant Governor in Council of Manitoba referred three questions to the Manitoba Court of Appeal concerning the constitutional validity of ss. 79(3), 79(4) and 79(7) of The Public Schools Act in light of ss. 15  and 23  of the Charter :

 

(a)               (i)Does the combined effect of section 79(3) and 79(4) and 79(7) of The Public Schools Act meet Manitoba's Constitutional obligations pursuant to section 23  of the Canadian Charter of Rights and Freedoms , insofar as the number of students entitled to instruction in the minority language is concerned?

 

                   (ii)If the combined effect of those subsections do not meet these obligations,

 

                          (aa) may the legislature specify any number as either a minimum number or guideline for the provision of French language instruction; or

 

                   (bb) may the legislature delegate the determination of a minimum number or whether numbers warrant the provision of instruction, to a school board, minister or other body?

 

(b)What does the right to have one's children receive instruction "in minority language educational facilities" guaranteed by section 23(3)(b)  of the Charter  mean?  In particular, does it include the right to have one's children receive instruction in a distinct physical setting?

 

(c)(i)Do section 23 and section 15 of the Charter  grant any right of management or control in connection with section 23's guarantees of French language instruction and facilities?

 

(ii)If so, do the provisions in Part I, II, and III of The Public Schools Act concerning the formation of school divisions and districts, the election of school boards, and the powers and duties of school boards meet Manitoba's constitutional obligations with reference to such a right of management and control?  If not, in what essential elements do the provisions fail to do so?

 

                   On February 6, 1990, the Manitoba Court of Appeal rendered its decision on the reference:  64 Man. R. (2d) 1, 67 D.L.R. (4th) 488, [1990] 2 W.W.R. 289 (hereinafter cited to Man. R.).  A majority of four judges of the court found that constitutional minority rights include the right to a distinct setting for the provision of minority language education.  Monnin C.J. took the position that s. 23  of the Charter  did not confer any right of management and control on the linguistic minority, but that s. 15  of the Charter  did do so.  The four other justices held that neither s. 23 nor s. 15 conferred such a right.

 

                   On February 21, 1990, the appellant Fédération provinciale des comités de parents Inc. filed its notice of appeal in this Court, appealing the decision of the Manitoba Court of Appeal on questions (b) and (c) of the reference. 

 

                   On March 15, 1990, this Court (in a unanimous judgment by Dickson C.J., for Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory JJ.) released its judgment in Mahe v. Alberta, [1990] 1 S.C.R. 342.  The Court decided in Mahe that s. 23  of the Charter  does confer upon minority language parents a right to management and control over the educational facilities in which their children are taught.

 

The Relevant Statutory Provisions

 

The Public Schools Act, R.S.M. 1987, c. P250

 

79(3)  Where in any school division or school district, there are 23 or more pupils who may be grouped in a class for instruction and whose parents desire them to be instructed in a class in which English or French is used as the language of instruction, the school board shall group those pupils, and upon petition of the parents of those pupils requesting the use of English or French, as the case may be, as the language of instruction in respect of those pupils, the school board shall group those pupils in a class for instruction and provide for the use of English or French, as the case may be, as the language of instruction in the class.

 

79(4)  Where the number of pupils concerned is less than the numbers mentioned in subsection (3) as requirements for the application of that subsection, the minister may require the school board to make arrangements for the use of English or French as the language of instruction in any class.

 

                                                                    ...

 

79(7)  A school board may enter into an agreement with another school board for providing jointly classes in which the language used for instruction is English or French, as the case may be, and the pupils in those classes may be included in the numbers required to meet the requirements of any provision of this section or the regulations.

 

Canadian Charter of Rights and Freedoms 

 

                   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.

 

                   (2)  Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

 

                                                                   . . .

 

                   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 subsection (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.

 

Constitutional Questions

 

                   On June 23, 1992, Gonthier J. made an order stating the constitutional questions, comprising questions (b) and (c) of the original reference:

 

1.What does the right to have one's children receive instruction "in minority language educational facilities" guaranteed by s. 23(3)( b )  of the Charter  mean?  In particular, does it include the right to have one's children receive instruction in a distinct physical setting?

 

2.(i) Do s. 23 and s. 15 of the Charter  grant any right of management or control in connection with s. 23's guarantees of French language instruction and facilities?

 

(ii) If so, do the provisions in Part I, II and III of The Public Schools Act concerning the formation of school divisions and districts, the election of school boards, and the powers and duties of school boards meet Manitoba's constitutional obligations with reference to such a right of management and control?  If not, in what essential elements do the provisions fail to do so?

 

Mootness

 

                   The respondent advanced the argument before the Court that it should refuse to answer the constitutional questions as stated, both because the issues they address have, to a large extent, been resolved by the Mahe decision, and due to the insufficient factual underpinning with which to resolve the issues not directly addressed by Mahe.

 

                   In Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, this Court held that when a previous judgment strikes down the legislative basis for an appeal, it may become moot.  Further, in the Reference re Goods and Services Tax, [1992] 2 S.C.R. 445, the Court held that it may refuse to answer constitutional questions if they are outside the scope of the reference. 

 

                   A court's exercise in interpreting legislation, however, differs from striking down legislation; the Manitoba Public Schools Act has not been struck down, and the decision in Mahe does not determine how the rights guaranteed under s. 23  of the Charter  must be interpreted in Manitoba.  The constitutional questions as stated remain within the scope of the original reference, and, further, the decision of the Manitoba Court of Appeal in this case, handed down before Mahe, remains in conflict with this Court's decision in that case.

 

Jurisprudence on Section 23

 

                   Having decided to proceed and answer the constitutional questions, the resolution of the questions stated in this reference requires solutions that are both consistent with the requirements and purpose of the statute and a logical outgrowth of the jurisprudence in Mahe.  Mahe suggests the general contours of the approach that this Court has determined is appropriate to the interpretation of s. 23; in order to answer this reference, it is necessary to specify more precisely the content of those rights in the province of Manitoba.

 

1. Mahe

 

                   This Court has laid out the following general framework for the interpretation of s. 23 in Mahe.  The Court stated that 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 inhabitants.  The rationale expressed for the specific guarantees of educational rights founded on language links the preservation of a culture with the presence of minority language schools (at p. 362) per Dickson C.J., for the Court:

 

                   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.

 

Dickson C.J. also made reference to the additional benefits that flow from the provision of minority schools (at p. 363):

 

                   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.

 

                   The method chosen to advance this goal in s. 23 is to confer upon minority language parents the right to have their children educated in their maternal language, French or English, as the case may be.  The legislative structure sets out a general right to all such parents in ss.  23(1) and 23(2), qualified by s. 23(3).  As the Court held (at p. 365):

 

... 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 result is a "sliding scale" of requirements, depending on the number of students to be served.  That is to say, what is required in any case will depend on what the numbers warrant;  the relevant figure for the purposes of determining "what the numbers warrant" is the number of persons who can eventually be expected to take advantage of a given programme or facility.  The factors to be considered in determining what s. 23 demands in a particular situation are (a) the pedagogical services which are appropriate for the number of students involved and (b) the cost of the contemplated services.  However, as mentioned in Mahe (at p. 385):  "... the remedial nature of s. 23 suggests that pedagogical considerations will have more weight than financial requirements in determining whether numbers warrant".

 

2. General Interpretative Principles

 

                   Several interpretative guidelines are endorsed in Mahe for the purposes of defining s. 23 rights.  Firstly, courts should take a purposive approach to interpreting the rights.  Therefore, in accordance with the purpose of the right as defined in Mahe, the answers to the questions should ideally be guided by that which will most effectively encourage the flourishing and preservation of the French- language minority in the province.  Secondly, the right should be construed remedially, in recognition of previous injustices that have gone unredressed and which have required the entrenchment of protection for minority language rights.  As M. A. Green observed in "The Continuing Saga of Litigation:  Minority Language Instruction" (1990-91), 3 Education & Law Journal 204, at pp. 211-12:

 

The Court conceded that 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, and thus if section 23 is to remedy past injustices and ensure that they are not repeated in the future, it is important that the minority have a measure of control over both facilities and instruction.

 

In passing, one should note, as this Court held in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, at pp. 777-78, that the focus on the historical context of language and culture indicates that different interpretative approaches may well have to be taken in different jurisdictions, sensitive to the unique blend of linguistic dynamics that have developed in each province.

 

                   Another principle that is very important to bear in mind in the resolution of the questions is the fact that language rights are of a fundamentally different nature than the other rights protected by the Charter .  Beetz J., speaking for a majority of the Court, made the following observation in Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549 (at p. 578):

 

                   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.

 

                   The constitutional history of this conceptual distinction can be traced through the jurisprudence on language rights to the following statement by Wilson J. in Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148, at p. 1176, that "it must still be open to the Court to breathe life into a compromise that is clearly expressed".  The Court in Mahe, at p. 365, accepted the distinction between language and other legal rights and noted the difference in origin and form of the two rights, holding that while positive obligations were placed on governments to alter or develop major institutional structures, prudent interpretation of the section is wise.

 

                   Finally, before turning to the constitutional questions, it is also important to recall that, as the Court determined in Mahe, there is no right to a particular legislative scheme flowing from the Charter , but rather a right to a type of educational system (at p. 392).

 

Question (b)

 

What does the right to have one's children receive instruction "in minority language educational facilities" guaranteed by section 23(3)(b)  of the Charter  mean?  In particular, does it include the right to have one's children receive instruction in a distinct physical setting?

 

                   The Court held in Mahe that the number of students in the Edmonton area justified, on both the pedagogical and financial criteria, the creation of an independent school, as well as the development of a continuing course of primary and secondary education.

 

                   The most significant statement by the Court in Mahe for the purposes of determining if there is a right to a distinct physical structure is that the term "facilities" should not be interpreted as a reference to physical structures alone.  The relevant passage is the following (at pp. 369-70):

 

                   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.   [Emphasis added.]

 

The statement that it is unnecessary to focus on facilities suggests that any entitlement to facilities is a subsidiary matter, flowing from the level of management and control mandated on a particular set of facts.   It was accepted that the delivery of educational services would vary with the circumstances (Mahe, at p. 367).  The rationale behind the "sliding scale" approach to s. 23 is that it "guarantees whatever type and level of rights and services is appropriate" to the number of students involved (at p. 366).  In the context of its discussion of "management and control", the Court held that where the numbers do not warrant granting the maximum degree of management control and thus the creation of a separate school board, among other things (at p. 377):

 

(3) The minority language representatives [on majority dominated school boards] 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; ...

 

                   There may exist a degree of ambiguity in Mahe as to whether the text of s. 23(3)(b) refers to "facilities of the minority" or "facilities for the minority".  In Mahe, the Court accepted the proposition that such facilities in fact must "belong" to the linguistic minority, and that a measure of management and control accordingly flows to that minority (at p. 370):

 

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. [Emphasis in original.]

 

                   Finally, the Court held that the phrase "where numbers warrant" does not provide an explicit standard that can be used to determine the appropriate facilities in every given situation (at p. 385).  A rigid formula for implementing s. 23 is therefore to be avoided.

 

                   Once the threshold of entitlement to minority language education is met, if "minority language educational facilities" are, as determined in Mahe, to "belong" to s. 23 parents in any meaningful sense as opposed to merely being "for" those parents, it is reasonable that those parents must have some measure of control over the space in which the education takes place.  As a space must have defined limits that make it susceptible to control by the minority language education group, an entitlement to facilities that are in a distinct physical setting would seem to follow.  As Twaddle J.A. held in the court below (at p. 112):

 

                   To be "of the minority" ("de la minorité"),  the facilities should be, as far as is reasonably possible, distinct from those in which English-language education is offered.  I do not question the importance of milieu in education.  In the playground and in extra-curricular activities, as well as in the classroom, French-speaking pupils should be immersed in French.  The facility should be administered and operated in that language, right down to the posters on the wall.

 

                   Such a finding would also be consistent with the recognition that minority schools play a valuable role as cultural centres as well as educational institutions.  While this Court in Mahe did not explicitly refer to distinct physical settings in its discussion on schools as cultural centres, it seems reasonable to infer that some distinctiveness in the physical setting is required to successfully fulfil this role.  In my view, the overall objectives of s. 23 expressed in the reasons in Mahe as a whole support such a conclusion.

 

                   Further, there appeared to be no disagreement between the parties in this case that s. 23 includes a right to a distinct physical setting when the question was before the Court of Appeal (see the reasons of Monnin C.J., at pp. 54-55, and O'Sullivan J.A., at p. 84).  It was the position of the Attorney General of Manitoba that the current network of Francophone schools in the province constituted "minority language educational facilities" for the purposes of the Charter  (see reasons of Monnin C.J., at p. 54).  The reality in the province appears to be that minority language is delivered, and has a history of being delivered, in distinct and separate facilities because for the most part the desire for the services exists in concentrated areas.  However, both Monnin C.J. and O'Sullivan J.A. recognized that the concept of a right to "distinct physical setting" does not automatically translate into a right to facilities that are entirely separate.

 

                   In this Court, the Attorney General of Manitoba resiles from the position at the Court of Appeal that there is a right to distinct physical settings, apparently assuming from Mahe that it is no longer necessary to endorse this as a general requirement of the right to minority language educational facilities.  For the reasons discussed above, I do not agree that this conclusion must follow from Mahe.

 

                   Detailed elaboration of what these facilities might entail would be unwise in this particular reference, for the reason that what is at issue is not a specific factual or a geographical setting even as limited as the "city of Edmonton" in Mahe, but the facilities for an entire province.  There might well be significant differences in what can reasonably be required for the facilities in the urban areas around Winnipeg, the main Francophone regions such as St. Boniface, and remote northern or rural areas to be deemed appropriate, by the standards set out in Mahe. This difference was clearly recognized by Dickson C.J. (at p. 386):

 

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."

 

                   Therefore, while I endorse a general right to distinct physical settings as an integral aspect of the provision of educational services, it is not necessary to elaborate at this point what might satisfy this requirement in a given situation.  Pedagogical and financial considerations would both play a role in determining what is required.  Obviously the financial impact of the provision of specific facilities will vary from region to region.  It follows that the assessment of what will constitute appropriate facilities should only be undertaken on the basis of a distinct geographic unit within the province.

 

Question (c)(i)

 

Do section 23  and section 15  of the Charter  grant any right of management or control in connection with section 23's guarantees of French language instruction and facilities?

 

                   This issue has, for the most part, been disposed of by Mahe.  The respondent concedes that the majority of the Court of Appeal's ruling has now been superseded and seeks an order allowing the appeal without costs.  The key dispute remaining is how precise the Court should be in setting out the parameters of the management and control of language instruction and facilities required under s. 23  of the Charter .

 

1. Sections 15  and 27  of the Charter 

 

                   With respect to other Charter  rights, the Court considered in Mahe the argument that s. 23 should be interpreted in light of ss. 15 and 27 and concluded the following (at p. 369):

 

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.

 

I see no reason to depart from this position.  Therefore, it follows that the finding of Monnin C.J. of the Manitoba Court of Appeal on the application of ss. 15 and 23 is, with respect, incorrect.

 

2. How Much "Management and Control"?

 

                   In Mahe, the Court adopted a purposive approach to s. 23, finding that the section as a whole provides a general right to minority language instruction.  The right is qualified by para. 3(a) and (b), by guaranteeing the right to instruction and to facilities only where the "number of children" so warrants.  As noted above, Dickson C.J. determined that the effect of these paragraphs was to establish a "sliding scale" of entitlement, based on the number of children whose parents qualify under s. 23.  At one end of the scale, the number of children might be so small that the where-numbers-warrant threshold of para. 3(a) would not be crossed and no programme of minority language instruction would be required.  A larger number of children would cross the where-numbers-warrant threshold of para. 3(b), which requires the provision out of public funds of "minority language educational facilities".  At the high end of the scale, the number of children would require the establishment of a minority language school board (see Mahe, at pp. 371-74; and P. W. Hogg, Constitutional Law of Canada (3rd ed. 1992), vol. 2, at p. 53-29).

 

                   In order to determine the "number of children", the Court should look to "the number of persons who will eventually take advantage of the contemplated programme or facility" (p. 384).  While this figure is admittedly impossible to know with certainty, it can be estimated by considering the parameters within which it must fall:  the known demand for the services and the total number who potentially could take advantage of the service.

 

                   The degree of management and control under this sliding scale approach thus depends on the number of children, which is determined by reference to both actual and potential numbers.  The educational system is then scrutinized in light of its position on the scale.  This aspect of s. 23 reflects the remedial nature of the Charter  right, which was "designed to remedy an existing problem in Canada, and hence to alter the status quo":  Mahe, at p. 363.

 

                   The rights to language education which flow from s. 23  of the Charter , therefore, will give rise to differing types of government obligations, depending on the number of students involved.  While the parties in this reference cite somewhat different figures for the number of students potentially affected in Manitoba, the lowest common denominator is 5,617 (G. Nicholls and G. L. Roy, A Report on Major Developments in French-language Education in Manitoba from 1970 to 1987 (1988), Table 4 of support documents), which comprises the number of students enrolled in Français programmes as of 1988.  The appellant, however, claims as many as 18,975 children may be eligible for participation in the new school system, though this figure is disputed as too high by the respondent (see appellant's factum, at para. 16, and respondent's factum, at para. 37). 

 

                   Even accepting the most conservative projections, the number of students who will eventually take advantage of the contemplated programme would seem to fall clearly on the high end of the "sliding scale" established in Mahe (at pp. 384-89).  In some areas of the province, at a minimum, these warrant the establishment of a separate Francophone school board.  Indeed, the Government of Manitoba has accepted as appropriate the establishment of a single Francophone school board to be responsible for Francophone education in the province, with the proviso that Francophone parents may choose to keep their children in existing français (French first language) programmes.

 

                   Since it is determined that the numbers warrant an educational system requiring the establishment of a minority language school board, then such a programme must be delivered.  There is a positive obligation on the province to discharge that obligation, and it must, if it is to comply with its duties under the Charter , deliver the system without delay.

 

                   In response to Alberta's timetable in developing a proper French- language educational system, the Court stated the following in Mahe (at p. 393):  "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."  I would echo these remarks in the case of the Manitoba Government, which has, by its own admission, failed to live up to its constitutional obligation since the release of Mahe in 1990.

 

Question (c)(ii)

 

If so, do the provisions in Part I, II, and III of The Public Schools Act concerning the formation of school divisions and districts, the election of school boards, and the powers and duties of school boards meet Manitoba's constitutional obligations with reference to such a right of management and control?  If not, in what essential elements do the provisions fail to do so?

 

                   The answer to the third question, as the respondent has already conceded, is clearly "no", once again based on this Court's decision in Mahe.  The legislation in question does not provide for the parents of French-language students to have management and control over French-language education as required under s. 23  of the Charter .

 

                   This Court should be loath, however, to detail what legislation the

Government of Manitoba must enact in order to meet its constitutional obligations.  Dickson C.J.'s remarks in Mahe with respect to implementing specific "modalities" in order to conform with s. 23 are worth repeating in full (at p. 376):

 

                   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 Mahe, the Court restricted itself to making a general declaration with respect to what obligations s. 23 placed on the provincial government to provide French parents with management and control over French-language education for their children.  Dickson C.J., at the close of his reasons, reiterated (at p. 393):

 

... 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. [Emphasis added.]

 

                   According to the respondent, there is a controversy currently gripping Manitoba concerning proposed language legislation.  The respondent contends that an ulterior motivation for this appeal proceeding, despite the resolution of much of the substance of the reference in the Mahe decision, is the Manitoba Government's announcement that a province-wide Francophone school division is to be established, to initially consist of s. 23 school communities that wish to join it (see respondent's factum, at para. 104, and Manitoba Order in Council No. 842/1992).  This new board will then be accorded exclusive control (subject to possible regulation) over French instruction in those schools and others it may create.  Under the proposed scheme, Francophone parents may choose to remain subject to existing boards, controlled by representatives elected by the community at large.  Those boards will have jurisdiction to continue providing the French instruction now being delivered in those schools.

 

                   Of course, the proposed legislation at issue is not, per se, a subject of this appeal, and is not germane to any of the constitutional questions stated by this Court (respondent's factum, at paras. 114 to 126).  Rather, it is the requirement that the Franco-Manitoban parents be granted "exclusive" control over the management and control of French schools which was fully argued by both parties and is central to answering the third constitutional question.

 

                   Therefore, I expressly refrain from taking a position on the constitutional validity of Manitoba's proposed legislative scheme.

 

                   I do wish to emphasize, however, that in implementing such a scheme of minority language education, the province must expressly address a number of issues in order to satisfy its constitutional obligations and remain true to the purposive, remedial nature of s. 23.  A proper implementation will require the fullest understanding of the needs of the French-language minority.  As pointed out in Mahe, at p. 372:

 

... 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.

 

The participation of minority language parents or their representatives in the assessment of educational needs and the setting up of structures and services which best respond to them is most important.

 

                   The rights provided by s. 23, it must be remembered, are granted to minority language parents individually.  Their entitlement is not subject to the will of the minority group to which they belong, be it that of a majority of that group, but only to the "numbers warrant" condition.

 

                   The province has the obligation to offer the educational services, make them known and accessible to minority language parents so as to provide a quality of education on a basis which, in principle, is one of equality with the majority, keeping in mind that, as stated in Mahe (at p. 378):

 

... 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.

 

Arrangements and structures which are prejudicial, hamper, or simply are not responsive to the needs of the minority, are to be avoided and measures which encourage the development and use of minority language facilities should be considered and implemented.  For instance, if the province chooses to allow minority language parents a choice of school for instruction in the minority language, this should not be at the expense of the services provided by a French-language school board or hamper this board in its ability to provide services on a basis of equality as described above.  Likewise, it would not be open to the Government of Manitoba to carve school districts which unduly hampered such a school board from attracting students.

 

The Remedy

 

                   Although all parties agree that The Public Schools Act violates s. 23  of the Charter , this appeal came to this Court by way of a constitutional reference.  This Court, therefore, has jurisdiction to answer the questions referred to it, but not to declare the impugned statute of no force or effect under s. 52(1)  of the Constitution Act, 1982 .  Moreover, as Dickson C.J. noted in Mahe (at p. 392), "[i]n 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."

 

                   It is important to keep in mind that s. 23 constitutes a minimum and not a maximum in the area of management and control of French-language education.  The respondent seeks an answer to this constitutional question that does little more than restate the obvious in light of the judgment in Mahe, but would impose on the Government of Manitoba no constitutionally required course of action.  The appellant, by contrast, suggests an answer that would unduly fetter the discretion of the province to choose the "modalities" by which to provide for the management and control of French-language education.  In the absence of issues properly before us as to specific legislation, it would be inappropriate to deal more specifically with the other matters raised.

 

                   This case reveals the tension that lies between the remedial aspect of s. 23 and the need to avoid interfering in legislative discretion or implementation.  The following words of Dickson C.J. in Mahe are particularly apt (at pp. 392-93):

 

... 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.... 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.

 

Disposition

 

                   The appeal is therefore allowed.  There will be no order as to costs.  I would answer the reference questions which are in issue in this Court, namely questions (b) and (c) in the Order in Council dated January 20, 1988, in the following manner:

 

Question (b):What does the right to have one's children receive instruction "in minority language educational facilities" guaranteed by section 23(3)(b)  of the Charter  mean?  In particular, does it include the right to have one's children receive instruction in a distinct physical setting?

 

Answer: Yes.  The general right of instruction conferred by s. 23, read in the context of the section as a whole, necessarily requires that the educational facilities be of or belong to the linguistic minority group, and includes the right to a distinct physical setting and facilities.  The exercise of a full complement of this right is related to the application of the sliding-scale approach developed by this Court in Mahe.

 

Question (c):(i)Do section 23 and section 15 of the Charter  grant any right of management or control in connection with section 23's guarantees of French-language instruction and facilities?

 

Answer: Yes, on the basis of s. 23, and in accordance with the principles set out by this Court in the Mahe decision.

 

 

                   (ii)If so, do the provisions in Part I, II, and III of The Public Schools Act concerning the formation of school divisions and districts, the election of school boards, and the powers and duties of school boards meet Manitoba's constitutional obligations with reference to such a right of        management and control?  If not, in what essential elements do the provisions fail to do so?

 

Answer:No. The provisions of The Public Schools Act do not provide for the implementation of the rights of the linguistic minority in respect of their educational facilities, including appropriate mechanisms for management and control.  In order to accomplish this, the Manitoba authorities must, without delay, put into place a regime and a system which permit the Francophone minority to exercise its rights effectively, taking into account the general requirements spelled out by this Court in the Mahe case.  The number of potential French-language students warrants the establishment of an independent French-language school board in Manitoba under the exclusive management and control of the French-language minority.

 

                   Appeal allowed.

 

                   Solicitors for the appellant and the intervener the Conseil jeunesse provincial Inc.:  Monk, Goodwin, Winnipeg.

 

                   Solicitor for the respondent:  The Department of Justice, Winnipeg.

 

                   Solicitor for the intervener the Attorney General of Canada:  John C. Tait, Ottawa.

 

                   Solicitors for the intervener the Société franco‑manitobaine:  Teffaine, Labossière, Saint‑Boniface, Manitoba; Michel Bastarache, Dieppe, New Brunswick.

 

                   Solicitor for the intervener the Commission nationale des parents francophones:  Michel Bastarache, Dieppe, New Brunswick.

 

                   Solicitor for the intervener the Fédération des communautés francophones et acadienne du Canada:  François Dumaine, Ottawa.

 

                   Solicitors for the intervener the Commissioner of Official Languages:  Johnston, Buchan & Dalfen, Ottawa.