Mahe v. Alberta [1990] 1 S.C.R. 342: Minority Language Educational Rights -- right to to "management and control" over the minority language facilities and instruction -- Preservation of rights respecting certain schools

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


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.

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