2.5 Minority Language Education Rights

Religion was the vehicle in the BNA Act for protecting English and French minority rights in education. Because they are enshrined in the Constitution, the religious provisions of Section 93 continue to be important determinants of the organization of schooling in many parts of Canada, even though religion itself is generally a less important part of Canadian life than was the case a century ago. Meanwhile, in the second half of the twentieth century and in the beginning of the twenty-first century, this continued struggle has been recast largely in terms of language, which now has wider significance in Canada than religion.

Section 23 of the Canadian Charter of Rights and Freedoms, entitled “Minority Language Educational Rights,” provides parents who speak the minority official language in their province with specific rights to public schooling for their children. According to the language provisions in Section 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 … 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 instruction in the same language.

(3) The right of citizens of Canada under subsections (1) and (2) … 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 numbers of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

The above provisions establish the requirement for provincial governments to provide instruction in the official minority language. Since 1982, there has been considerable political and judicial activity across Canada to interpret these provisions and to bring existing practice into line with constitutional requirements (Clarke, 2009; Manley-Casimir & Manley-Casimir, 2009). Provincial governments have used various strategies to defuse the political controversies surrounding issues of language. Several provinces have chosen to place the issue of how they are required to comply with Section 23 before the courts rather than risk initiatives of their own that might be unpopular with voters. Even when the courts have made rulings, in several provinces governments have appointed third-party commissions to develop implementation plans. One question the courts have been asked to interpret is the meaning in Section 23(3) of the phrase “where numbers warrant.” Tardif (1990) notes that in Quebec this number has generally been defined as 1 student, but a Nova Scotia judge deemed that 50 students were insufficient to justify a French school, and a request in Alberta from parents of 188 children was also refused. In Prince Edward Island, francophone parents successfully petitioned the Supreme Court of Canada to have a French-language primary school established in the town of Summerside (Clarke, 2009). The Minister of Education had previously denied approval of the school on the grounds that a minimum enrolment of 100 students was, in his view, necessary for a viable school (Arsenault-Cameron v. Prince Edward Island, 1999/2000). These differences, Tardif suggests, are rooted in the distinction between “entitlement” and “demand”; that is, whether parents under Section 23 have only to show that they are entitled to minority language education, or whether they are required to demonstrate sufficient demand. Because it fails to take local circumstances into account, the courts have rejected any fixed minimum number of students as defining “where numbers warrant,” and have denied the use of existing school district boundaries to define minimum numbers. However, Tardif notes that the Court of Appeal judgment in Alberta in the case of Mahé et al. v. Her Majesty the Queen (1987) appears to place the burden of proof of demand on the parents.

A second critical set of issues on which the courts have been asked to rule includes the homogeneity of schools and questions of management and control over minority language education. Section 23(3) refers to “minority language educational facilities.” Originally, some jurisdictions interpreted this requirement to be satisfied by the provision of distinct programs for francophone students in existing educational facilities. However, over time, all provinces have recognized the argument that only separate francophone schools can satisfy the spirit of the Charter for language protection and avoid the damaging effects of assimilation.

In the area of governance, the courts have interpreted Section 23 as conferring on minority language parents a right to be involved in the management and control over their children’s schooling, although the courts have not specified what form that management right must take.  Clarke (2009, p. 226) documenting the evolution of minority language governance across Canada notes that all provinces now provide first language minorities, be they French or English, with their own school boards. Furthermore, when recently some provinces have moved to abolish their school boards, they have left these boards untouched. In some provinces such as British Columbia, Prince Edwards Island, and Saskatchewan, where the linguistic minority population is small and geographically dispersed there is a single board for the whole province. Other provinces have multiple boards, and in Alberta and Ontario French-language boards are further split along denominational lines (Table 2.5.1)

Table 2.5.1

Diversity and Choice in Canadian Provincial School Systems

Source. Adapted from Clemens et al. (2014). Measuring choice and competition in Canadian education. www.fraserinstitute.org and Robson, K. (2013). The sociology of education in Canada. Pearson.

These developments give recognition to the critical role that schools play in either the promotion or erosion of languages and culture, and to the struggle required to have a language and culture other than that of the official majority properly accommodated within the public school system. For languages and cultures that lack the constitutional force of the English and French, this struggle is more difficult. However, where the legitimacy of linguistic and cultural diversity is recognized, new organizational arrangements are likely to be required that may add to the complexity of both existing provisions and single, geographically coherent school boards.

For example, in 2019, the federal Indigenous Languages Act came into being that will likely have significant impact on both federal/First Nations and provincial schools given that section 5(e) of the Act (see below) includes as one of its purposes the intent to create collaborations between levels of governments and Indigenous organizations that support Indigenous languages.  As most Indigenous languages spoken on the territories of Canada are endangered, there are many calls for programs to support Indigenous language revitalization.  Many programs are being developed and offered in schools as individual classes, dual language or immersion programs.  Important developments in school contexts will be made over time as this Act opens opportunities not only for the development of programs, but also for justification of resourcing of those programs.  Box 2.5.2 outlines the purposes of the Indigenous Languages Act that speaks clearly to the development of programming to support language reclamation.

Because of Canada’s history and its population dynamics, religion and language will continue to play an important role in Canadian education and will constitute one of the major political issues with which provincial governments must cope. Specific provisions are likely to continue to evolve, but the issues will not disappear whatever arrangements may be made.