Reference re Public Schools Act (Man.), s. 79(3), (4) and (7) [1993] 1 S.C.R. 839: Minority language educational rights -- Educational facilities -- Whether rights to minority language educational facilities include a right to distinct physical setting;

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.

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.

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