Conseil scolaire francophone de la Colombie-Britannique, Fédération des parents francophones de Colombie-Britannique, Annette Azar-Diehl, Stéphane Perron v. Marie-Nicole Dubois, 2020 SCC 13

SUPREME COURT OF CANADA Citation: Conseil scolaire francophone de la Colombie- Britannique v.

British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678 Appeal Heard: September 26, 2019 Judgment Rendered: June 12, 2020 Docket: 38332 Between: Conseil scolaire francophone de la Colombie-Britannique, Fédération des parents francophones de Colombie-Britannique, Annette Azar-Diehl, Stéphane Perron and Marie-Nicole Dubois Appellants and Her Majesty The Queen in Right of the Province of British Columbia and Minister of Education of British Columbia Respondents - and - Attorney General of Nova Scotia, Attorney General of Prince Edward Island, Attorney General of Saskatchewan, Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Attorney General of the Northwest Territories, Commissioner of Official Languages of Canada, Quebec Community Groups Network, David Asper Centre for Constitutional Rights, Association des juristes d’expression française du Nouveau-Brunswick inc., Association des enseignantes et enseignants francophones du Nouveau-Brunswick inc., Fédération nationale des conseils scolaires francophones, Association des parents de l’école Rose-des-Vents, Association des parents de l’école des Colibris, Canadian Association for Progress in Justice, Société de l’Acadie du Nouveau-Brunswick, Fédération des conseils d’éducation du Nouveau-Brunswick, Assembly of Manitoba Chiefs, Commission nationale des parents francophones, Conseil scolaire francophone provincial de Terre-Neuve-et-Labrador and Canadian Francophonie Research Chair in Language Rights Interveners Official English Translation: Reasons of Wagner C.J.

Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. Reasons for Judgment : (paras. 1 to 187) Wagner C.J. (Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ. concurring) Joint Reasons Dissenting in Part: (paras. 188 to 348) Brown and Rowe JJ.

Conseil scolaire francophone de la Colombie-Britannique, Fédération des parents francophones de Colombie-Britannique, Annette Azar-Diehl, Stéphane Perron and Marie-Nicole Dubois Appellants v .

Her Majesty The Queen in Right of the Province of British Columbia and Minister of Education of British Columbia Respondents and Attorney General of Nova Scotia, Attorney General of Prince Edward Island, Attorney General of Saskatchewan, Attorney General of Alberta, Attorney General of Newfoundland and Labrador, Attorney General of the Northwest Territories, Commissioner of Official Languages of Canada, Quebec Community Groups Network, David Asper Centre for Constitutional Rights, Association des juristes d’expression française du Nouveau-Brunswick inc., Association des enseignantes et enseignants francophones du Nouveau-Brunswick inc., Fédération nationale des conseils scolaires francophones, Association des parents de l’école Rose-des-Vents, Association des parents de l’école des Colibris, Canadian Association for Progress in Justice, Société de l’Acadie du Nouveau-Brunswick, Fédération des conseils d’éducation du Nouveau-Brunswick, Assembly of Manitoba Chiefs, Commission nationale des parents francophones, Conseil scolaire francophone provincial de Terre-Neuve-et-Labrador and Canadian Francophonie Research Chair in Language Rights Interveners Indexed as: Conseil scolaire francophone de la Colombie-Britannique v.

British Columbia 2020 SCC 13

File No.: 38332. 2019: September 26; 2020: June 12.

Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ. on appeal from the court of appeal for british columbia Constitutional law — Charter of rights — Minority language educational rights — Provincial funding of minority languageeducation system — Sliding scale — Substantive equivalence — Justification of infringements — Approach to take in order to situategiven number of students on sliding scale so as to determine level of services that must be provided to them — Whether test used to assessquality of educational experience provided to official language minorities varies with number of minority language students — Whetherinfringements of this right are justified –– Canadian Charter of Rights and Freedoms, ss. 1, 23.

Constitutional law — Charter of rights — Remedy — Damages — Trial judge deciding that province had to pay damages toschool board to make up deficit it had run because of freeze on funding for school transportation — Whether limited governmentimmunity from damages awards applies to decisions made in accordance with government policies that are found to be contrary to s. 23of the Charter. The Conseil scolaire francophone de la Colombie-Britannique (“CSF”) is the sole French-language school board in BritishColumbia. Its territory covers the entire province, and it has 37 schools.

In June 2010, the CSF, the Fédération des parents francophonesde Colombie-Britannique and three parents who are rights holders under s. 23 of the Charter (“linguistic minority representatives”) fileda notice of civil claim against the province, submitting that several aspects of the funding of the education system penalized the officiallanguage minority and infringed its rights under s. 23 of the Charter.

The alleged infringements can be divided into two categories: thefirst involved systemic claims (among other things, the fact that the CSF had not received an annual grant for building maintenance, theformula used to set priorities for capital projects, a lack of funding for school transportation and a lack of space for cultural activities),and the second involved claims for the purpose of obtaining new schools or improvements to existing schools in 17 communities.

The trial judge set out an approach to be taken in order to situate the number of students in a given community on the slidingscale, which serves to determine the level of services to which an official language minority is entitled and is used to decide whether theminority is entitled to a homogeneous school, to educational facilities shared with the majority or to another appropriate solution.Applying her analytical framework, the trial judge issued declarations concerning the right to educational facilities in severalcommunities.

She then outlined the test that is to be applied in determining the quality of the educational experience that must beprovided to official language minorities.

She concluded with respect to several communities that the children of rights holders areentitled to facilities that provide them with an educational experience that is substantively equivalent to the experience of the majority,but she found with respect to other communities that the numbers of children of rights holders warranted not a substantively equivalenteducational experience, but one that is proportionately equivalent to the educational experience provided to the majority. Discussing theprinciples of

interpretation that must inform the analysis of infringements of s. 23 under s. 1 of the Charter, the trial judge thenconcluded that several infringements of the rights holders’ language rights were justified under s. 1. Finally, she concluded that awardingdamages would not be appropriate for most of the claims of the linguistic minority representatives, but she found that the freeze onfunding for school transportation at a time when the number of students of the linguistic minority was rising constituted an infringementof s. 23, and she awarded $6 million in damages to the CSF.

On the other hand, the trial judge declined to award damages to the CSF incompensation for its having been denied the Annual Facilities Grant Rural Factor.

The linguistic minority representatives appealed the trial judge’s judgment, arguing that she had made several errors of lawin analyzing the alleged infringements of s. 23 of the Charter, including in the approach she had taken in order to situate a given numberof students on the sliding scale and in the test she had applied in order to assess the quality of the educational experience provided toofficial language minorities; in reviewing the justification of the infringements under s. 1; and in granting the remedies being sought.

TheCourt of Appeal dismissed the appeal but allowed the province’s cross appeal and set aside the award of damages for inadequate fundingof school transportation. Held (Brown and Rowe JJ. dissenting in part): The appeal should be allowed in part. Per Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ.: The courts below adopted aninordinately narrow

interpretation of s. 23 of the Charter and its role in the Canadian constitutional order.

Section 23 has a remedialpurpose related to promoting the development of official language minority communities and changing the status quo. In accordancewith an

interpretation of that

section that takes its remedial purpose fully into account, and in light of the trial judge’s findings of fact, theappeal should be allowed in part. In Mahe v. Alberta, (SCC), [1990] 1 S.C.R. 342, the Court explained that situating a given number ofstudents on the sliding scale requires that the analysis focus on (1) the services appropriate, in pedagogical terms, for the number ofstudents involved; and (2) the cost of the contemplated services. However, the Court did not provide an exhaustive definition of thesetwo factors.

The approach to be taken in order to situate a given number of students on the sliding scale must therefore be clarified. The analysis of the first factor, pedagogical needs, is concerned with whether, in light of the number of students at issue, thelevel of services proposed by the minority will make it possible to meet all curriculum requirements, that is, those related to theknowledge and skills the students must acquire while in school. The second factor in the analysis, cost, is less important than the first.

Itcomprises the cost of building a new school or launching a program, and the associated operating costs. As a general rule, pedagogicalconsiderations and cost considerations are interlinked and can be assessed simultaneously. The approach to be taken in order to situate a given number of students on the sliding scale is based on the premise that ahomogeneous school, that is, a separate facility under the control of the official language minority, is warranted where such a school isavailable to a comparable number of majority language students.

The first step is to determine how many students will eventually availthemselves of the contemplated service on the basis of long-term projections. That number lies between the known demand and the total

number of children of s. 23 rights holders. The burden of proof is on the claimants from the official language minority. At the second step, the court must take a comparative approach in order to determine whether the school contemplated by the minority is appropriate from the standpoint of pedagogy and cost. The approach is intended for the determination of whether the number of students in question from the official language minority is comparable to the numbers of students in the majority language schools. The burden is on the claimants from the official language minority to identify comparator schools.

It is necessary to be flexible in determining what constitutes a comparable number. Comparable does not mean identical. If the court finds that the number of minority language students is comparable to the numbers of students in local majority language schools, there is no doubt that the number of minority language students falls at the high end of the sliding scale and that the minority is entitled to a homogeneous school. In other cases, a province-wide comparative exercise is required to ensure fair treatment across the province.

The existence of majority language schools that serve a given number of students, regardless of where they are located in the province, supports a presumption that the province considers maintaining those schools to be appropriate from the standpoint of pedagogy and cost, and thus that it is appropriate to create a comparably sized homogeneous school for the minority.

The province can rebut this presumption by showing on a balance of probabilities either that the majority language schools used as comparators are not appropriate for that purpose or that the school proposed by the minority is not appropriate from the standpoint of pedagogy or cost. At the third step, the level of services to be provided to the official language minority must be determined.

If the court has found at the second step that the number of students is comparable and that the presumption has not been rebutted, that number is at the high end of the sliding scale and the minority is therefore entitled to have its children receive instruction in a homogeneous school. If the result of the province-wide comparison is that there is no comparable number, the number of minority language students falls below the high end of the sliding scale, that is, at the low end or in the middle.

A minority at the lower levels of the scale can qualify for a range of services varying from a few hours of classes in its language to the use and control of premises in a school shared with the majority. In such a situation, the court must show deference to the level of services proposed by the minority language school board in determining whether that level of services is appropriate from the standpoint of pedagogy and cost.

When this approach is applied in this case to the claims of the linguistic minority representatives for new schools or for the expansion of existing schools, they are entitled to eight homogeneous schools that were denied by the courts below. The schools in question are warranted by the numbers of minority language students in the communities in question.

The trial judge found that the number of minority language students in the communities of Abbotsford (elementary component for children of rights holders in the community of Abbotsford and secondary component for children of rights holders in the communities of the Central Fraser Valley), Burnaby, Northeast Vancouver, East Victoria and West Victoria will in the long term warrant the creation of homogeneous schools. Given that the long-term projections are the relevant numbers, these communities are therefore entitled to homogeneous schools.

For the communities of North Victoria, Whistler, Chilliwack and Pemberton, the trial judge decided on a local basis for comparison even though the comparison must take schools located across the province into account.

The appropriate comparative approach requires that the number of students who will eventually avail themselves of the service — 98 for North Victoria, 85 for Whistler, 60 for Chilliwack and 55 for Pemberton — be compared with the numbers of students attending the small schools located across the province that were retained by the trial judge and for which there is no evidence in the record capable of rebutting the presumption that it is appropriate to create a school of comparable size for the minority. Enrolment in these majority language schools ranges from 66 to 73 students.

The relevant numbers for North Victoria, Whistler and Chilliwack are comparable to the numbers of students attending these comparator majority language schools. These communities are therefore entitled to homogeneous schools. As for Pemberton, it is difficult to compare the number of students in question there with the numbers of students at the majority language schools located elsewhere in the province that were retained by the trial judge.

Given that the available evidence is limited and that additional submissions might be necessary, the question of the level of services warranted by this number of students should therefore be remanded to the court of original jurisdiction for reconsideration. The test used to assess the quality of the educational experience provided to official language minorities does not vary with the number of minority language students.

Section 23 gives an official language minority the right to instruction that is equivalent in quality to the instruction provided to the majority. Children of s. 23 rights holders must therefore receive an educational experience that is substantively equivalent to the experience provided to the majority, regardless of the size of the school or program in question. The essentials of the approach from Association des parents de l’école Rose-des-vents v.

British Columbia (Education) , 2015 SCC 21 , [2015] 2 S.C.R. 139, which allows for a holistic assessment of the quality of the educational experience provided to the official language minority, do not need to be adapted in a situation in which the schools of the official language minority are small, aside from the fact that a reasonable parent must take into account the inherent characteristics of attendance at a small school.

Accordingly, where a minority language school is not comparable in size to nearby majority language schools, what must be considered is whether reasonable parents who are aware of the inherent characteristics of small schools would be deterred from sending their children to a school of the official language minority because the educational experience there is meaningfully inferior to the experience at available majority language schools.

Even where the number of students falls at the low end of the sliding scale, such that there is a right to instruction alone, the factors listed in Rose-des-vents must be taken into account in assessing the quality of the educational experience from a program of instruction; the right to instruction cannot be entirely severed from the overall educational experience.

In the case of a heterogeneous school or a program of instruction, the analysis based on the substantive equivalence test serves to determine whether the instruction over which the minority has control and the facilities to which it has access are of sufficient quality. In light of these comments, the approach adopted by the courts below in this case where the number of students was not comparable to the numbers of majority language students must be rejected, because that approach was based on what was called a proportionality test rather than on that of substantive equivalence.

The trial judge’s conclusions are therefore varied to reflect the conclusion that all rights holders whose children attend CSF schools or participate in its programs are entitled to an educational experience that is substantively equivalent to the experience at nearby majority language schools. For the schools in the communities of Nelson, Chilliwack and Mission, the quality of the educational experience must be assessed from the perspective of a reasonable parent who is aware of the inherent characteristics of a small school.

When the substantive equivalence test and the proper approach are applied for the CSF school in Nelson, the trial judge’s finding that the educational

experience of the minority language students is equivalent to the experience provided to the majority language students should beaccepted. As for the CSF school in Chilliwack, a balancing of the advantages and disadvantages shows that the quality of the educationalexperience provided there is meaningfully inferior to that of the experience at the majority’s schools. This means that the children ofrights holders in Chilliwack do not receive an educational experience of the quality guaranteed to them by s. 23 of the Charter.

In thecase of the CSF school in Mission, the situation is concerning, but the evidence that was adduced is insufficient for the purpose ofmaking the holistic assessment required by the test of a reasonable parent who is aware of the inherent characteristics of a small school.The question of the quality of the educational experience and the impact of the Facility Condition Driver on this situation must thereforebe remanded to the court of original jurisdiction.

The fact that the province compels the CSF to prioritize the capital projects the latter submits, even in response toinfringements of s. 23, does not infringe the right of management guaranteed by s. 23 of the Charter. How much time the province has toremedy the infringements of s. 23 will have to be addressed on a case-by-case basis, but the infringements must nonetheless be remediedin a timely fashion. Where an infringement of s. 23 is established, a court must take the approach established in R. v. Oakes,(SCC), [1986] 1 S.C.R. 103, while applying a particularly stringent justification standard.

This very stringent standard is appropriate forthree reasons. First, the framers of the Charter imposed positive obligations on the provincial and territorial governments in s. 23, andthese obligations must be fulfilled in a timely fashion in order to avoid the likelihood of assimilation and of a loss of rights. Second, s. 23is not subject to the notwithstanding clause in s. 33 of the Charter, which reflects the importance attached to this right and the intentionof the framers that intrusions on it be strictly circumscribed.

Third, s. 23 has an internal limit, the numbers warrant requirement,according to which the exercise of the right for which the

section provides will be warranted if there are a sufficient number of students.In adopting this limit, the framers sought to take account of practical considerations, including cost and pedagogical needs, related to thenumber of students who might benefit from the right in question. Where the government concerned advances a financial argument tojustify an infringement of s. 23, the s. 1 analysis will then in some respects duplicate the numbers warrant analysis that has already beencompleted.

For an infringement of s. 23 to be justified under s. 1, it must not therefore be supported by considerations that have alreadybeen taken into account at the numbers warrant stage. At the second stage of the approach established in Oakes — proportionality between the effects of the measure that isresponsible for limiting the right and the objective that has been identified as important —, it is necessary to take assimilation fully intoaccount as a deleterious effect when the right under s. 23 is infringed.

The purpose of s. 23 is not only to ensure the sustainability of thecountry’s linguistic communities, but also to make it possible for those communities to develop in their own language and culture in thepresent. In this sense, even though the evidence shows that s. 23 has not been able to counter or slow the process of assimilation, the factremains that citizens from official language minority communities still have a right to achieve fulfillment in their own language ineveryday life.

In addition, a court must bear in mind that s. 23 has an individual dimension and that minority language schools have adefinite impact on the likelihood of assimilation of French speakers who attend them. Finally, cost savings linked to an infringement ofs. 23 cannot be considered a relevant factor in the balancing of the salutary and deleterious effects of the infringing measure. In the case at bar, the courts below erred in ruling that the fair and rational allocation of limited public funds is a pressingand substantial objective that can justify infringements of s. 23 in accordance with the Oakes test.

The fair and rational allocation oflimited public funds represents the daily business of government. The mission of a government is to manage a limited budget in order toaddress needs that are, for their part, unlimited. There is accordingly no pressing and substantial objective here that can justify aninfringement of rights and freedoms in this case. The justification for the infringements therefore fails at the first stage of the analysis.Without a valid objective, the province cannot justify the infringements of s. 23.

As a result, the infringement of s. 23 found by the trial judge on the basis that the CSF had been denied $1.1 million by nothaving benefited from the Annual Facilities Grant Rural Factor is not justified, and the CSF is entitled to damages in that amount. The limited government immunity from damages awards does not apply to decisions made in accordance with governmentpolicies that are found to be contrary to s. 23.

Although damages can be awarded against a government where they are an appropriate andjust remedy in the circumstances, it may avoid such an award by raising concerns for effective governance, including where a law hasbeen declared to be invalid after the act that caused the infringement. However, the government does not have immunity in relation togovernment policies that infringe fundamental rights.

The possibility of damages being awarded in respect of Charter-infringinggovernment policies in this context is unlikely to have a chilling effect on government actions and thereby undermine their effectiveness;on the contrary, it helps ensure that government actions are respectful of fundamental rights. While it is appropriate to give thegovernment immunity in respect of a well-defined instrument such as a law, the same is not true in respect of undefined instruments withunclear limits, such as government policies.

In the case at bar, because the freeze on school transportation funding was a government policy, the trial judge’s orderawarding damages for the inadequate funding of school transportation should be restored. Per Brown and Rowe JJ. (dissenting in part): Unlike most Charter rights, s. 23, which confers the right to minority languageeducation, imposes positive duties on governments to act. It is preventative, remedial, and unifying, and must be interpreted in light ofthese objectives. The framing of s. 23 as a positive right is particularly significant.

The right expresses its own internal limit, the“numbers warrant” criterion, which reflects a carefully struck constitutional bargain between the federal and provincial governments.This numerical threshold ensures that the positive obligations on the provinces are reasonable and reflect what is practical while at thesame time providing the appropriate level of services for minority language students. Both the text of s. 23 and its particular naturerequire courts to give the provision its proper and intended effect, in line with settled jurisprudence.

Striking the right balance recognizesthat it is possible to breathe life into the s. 23 right, albeit with caution. The analysis to be applied to s. 23 claims follows two main steps. First, a court must determine the level of serviceswarranted by the number of rights holders in a given area (the “numbers warrant” analysis). This entails ascertaining the relevant numberof rights holders, then placing that number on a sliding scale of entitlement in order to decide what level of service is warranted.

The relevant figure for the purposes of this analysis is the number of persons who will eventually take advantage of the contemplated program or facility. This figure is an estimate that will fall somewhere between the known demand for the service and the total number of persons who potentially could take advantage of the service. The goal is not to establish how many students will take advantage of the facility or program when it is first launched, but rather to forecast how many will do so in the future.

After determining the relevant number, the court must then establish, using the sliding scale approach, what level of services is warranted, pedagogically, given the number of minority language students, and the cost of such service. The right to minority language education is internally limited to the services that can be justified, pedagogically and financially, by the number of children of rights holders. To trigger the obligation to publicly fund minority language education, a claimant must demonstrate that this limit is accounted for.

The burden of proving all elements of the s. 23 breach rests on the person asserting the breach. This ensures that s. 23’s own internal qualifications and method of internal balancing are fulfilled. The operation of the sliding scale gives effect to this internal limit because the content of the right expands as the numbers increase, thereby ensuring that rights holders receive a level of service that is appropriate to their number. Proper placement on the sliding scale is critical.

It ensures that governments will deploy the resources necessary to meet their obligations under s. 23, and that the internal limit to those obligations is accounted for. Furthermore, just as a failure to give effect to the rights conferred by s. 23 can be detrimental to the flourishing of minority languages, improper placement on the scale can also be harmful to minority students. There would be no point, for instance, in having a school for only ten students in an urban centre, as it would deprive the students of the numerous benefits of studying and interacting in larger numbers.

To determine the level of service that is warranted for a given group of rights holders, a claimant must first demonstrate, on a balance of probabilities, that the level of service claimed is pedagogically appropriate for the number of children. To assess the pedagogical appropriateness of a given level of service, the existence of majority schools or programs built for similar numbers elsewhere in the province can be a relevant indicator that a homogeneous school or program would be pedagogically appropriate for the number of rights holders’ children.

However, the existence of a small school anywhere in the province is not determinative. Courts need to first assess whether the school or program is a relevant comparator, taking into account factors such as whether it is in a rural or urban area, whether it serves a remote or isolated community, whether the school continues to operate at the capacity for which it was built, and whether the school operates as a result of supplementary private funding. As a general rule, because s. 23 calls for publicly funded minority language education, an appropriate comparator would also need to be publicly funded.

This approach entails considering the context of schools used in the comparison to ensure that the circumstances are relevant and comparable to the proposed school or service. The assessment of relevant comparators must take into account that there need not be perfect correspondence of pedagogical appropriateness between the minority and the majority language education.

At this stage of the analysis, there is no principled reason to constrain comparator schools locally, and the views of school boards are entitled to a measure of deference with respect to particular services among the range of potentially available services that are most pedagogically appropriate below the upper end of the sliding scale, consistent with the principle that minority language groups should have control over those aspects of education which pertain to their language and culture.

If successful in showing pedagogical appropriateness, a presumption then arises to the effect that the level of service is also appropriate as to cost. The burden in turn shifts to the province or territory to rebut the presumption, which is suitable given that it is better placed to adduce such evidence. Throughout, the burden for demonstrating pedagogical appropriateness rests with the claimant, who has the onus of establishing a Charter breach. This approach is consistent with the fact that cost appropriateness is usually subsumed within the assessment of pedagogical appropriateness.

It is particularly important to circumscribe the entitlement within the s. 23 analysis given the limited application of s. 1 of the Charter in cases of s. 23 infringements. Considerations of pedagogy and cost are thus seriously taken into account within the s. 23 analysis itself. Though cost is not usually a factor in determining whether an individual is to be accorded a right under the Charter , in the specific case of s. 23, such a consideration is mandated.

Applying a province-wide presumption of pedagogical and cost appropriateness at the “numbers warrant” stage, as a majority of the Court suggests, affects key elements of the s. 23 analysis and leads to a compression of the middle of the sliding scale. Considerations of pedagogy and cost are effectively withdrawn, regardless of the particular context that may explain the continued relevance of a school elsewhere in the province. A right to a homogeneous school, which is the highest level of entitlement on the scale, is immediately presumed, thereby shifting the claimant’s burden to the province from the outset.

How a province could successfully rebut this presumption is unclear, transforming the presumption effectively into a rule. This operates as a fast track to the upper end of the sliding scale, eliminating any middle level. Such an approach is inconsistent with the Court’s past refusal to adopt a view of s. 23 as encompassing only two rights, that is, one with respect to instruction and one with respect to facilities. This view was rejected by the Court in favour of the sliding scale approach, which allows for a progressive increase in entitlement as the number of rights holders increases.

At the second step of the s. 23 analysis, courts must determine whether the quality of services granted to the rights holders is substantively equivalent to the quality of services provided to local majority language students (the “substantive equivalence” analysis). A purposive

interpretation of s. 23 requires that substantive equivalence apply throughout the sliding scale. This approach recognizes that the quality of official minority language education cannot be meaningfully inferior to that of the majority. The use of a “proportionality” norm at this stage of the s. 23 analysis would mean that the minority’s relative weight to that of the majority will be taken into account not once but twice, each time diminishing the quality and level of the minority’s constitutional entitlement. As such, it must be rejected. A purposive

interpretation of s. 23 emphasizes its true purpose of redressing past injustices and providing the official language minority with equal access to high quality education in its own language, in circumstances where community development will be enhanced. A purposive

interpretation of s. 23 may be achieved only by applying substantive equivalence as the appropriate norm at the second stage of the s. 23 analysis, irrespective of where a community falls on the sliding scale. The rationale for applying substantive equivalence is further rooted in the broader principle of protecting minority rights, a fundamental underlying principle to the Constitution. The “substantive equivalence” analysis under s. 23 seeks to evaluate the quality of services provided to minority rights holders.

The analysis is circumscribed by comparing the quality of the level of services that is warranted for the number of minority language students with the quality of that same level of services provided to neighbouring schools. The analysis must remain global and

contextual and must be mindful that instruction cannot be dissociated from the facilities in which it is provided. Multiple factors may beconsidered, including the quality of instruction, teachers, physical facilities, educational outcomes, extracurricular activities, and traveltime. The relevant factors, as dictated by the circumstances of each case, are considered together in assessing whether the overalleducational experience is inferior in a way that could discourage rights holders from enrolling their children in a minority languageschool.

These considerations are applied from the standpoint of the reasonable rights holder parent, comparing the minority languageschool with the local majority schools that represent realistic alternatives for them. The effect of combining a legal presumption of pedagogical and cost appropriateness at the first stage of the s. 23 analysis,as suggested by a majority of the Court, with recourse to substantive equivalence as the proper comparative norm at the second stage,leads to a strained application of substantive equality.

This combination will result in the establishment of very small minority languageschools being compared to local majority language schools, which are typically larger and equipped with more or better services, therebylifting local minority groups to the top of the sliding scale. Such an approach departs from the notion of a sliding scale of warrantedservices that gradually increases based on the number of children that may benefit from them.

The analysis under s. 1 of the Charter provides that the rights and freedoms in the Charter are subject only to suchreasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. To demonstrably justify areasonable limit, the state must show that the objective of the proposed measure is pressing and substantial, and that the means by whichthe measure is achieved are proportionate. The assessment of the objective is a threshold requirement, analyzed without considering thelimit’s scope, the means employed or the effects of the measure.

The proportionality requirement will be satisfied where the means arerationally connected to the ends; the measure minimally impairs the right at issue; and the salutary effects of the measure outweigh itsdeleterious effects. The fact that s. 23 is internally limited has an important effect on how the justification analysis should proceed. Rather thanaffecting the stringency of the s. 1 analysis, as suggested by a majority of the Court, the internal limit of s. 23 results in s. 1 having less todo in practice.

If done properly, the analysis under s. 23 will account for many of the considerations that would normally arise under s. 1.Applying cost considerations under the s. 23 analysis does not mean that they will never be relevant under s. 1. Although such instancesmay be rare in the context of a s. 23 Charter right, costs may be a pressing and substantial objective under s. 1 where they are linked toother public policy considerations. However, a measure whose sole purpose is financial, and which infringes Charter rights, can never bejustified under s. 1.

Decisions about the fair and rational allocation of limited public funds are the bread and butter of governmentfunctions and are purely financial. As such, they are not a valid pressing and substantial objective under s. 1. The first and most important remedy for Charter breaches is a declaration of invalidity. In the context of s. 23, courts mustpay particular attention to whether a declaration will be an adequate remedy for a breach. A declaration often strikes the right balancebetween vindicating Charter rights and affording governments flexibility to meet their s. 23 obligations.

This primary remedy issupplemented by Charter damages, which are available where appropriate and just, but are not presumed. Trial judges have significantdiscretion in determining the appropriate remedy for a Charter breach. However, this discretion is not unfettered, and what is appropriateand just will depend on the circumstances. An award of damages must be fair not only to the claimant whose rights were breached, butalso to the state which is required to pay them. Other remedies may also be more responsive to a breach. Under the framework set out inVancouver (City) v.

Ward, 2010 SCC 27, [2010] 2 S.C.R. 28, the first step for assessing Charter damages is to show a Charter breach.Second, the claimant must show why damages are an appropriate and just remedy that fulfills one or more of the related functions ofcompensation, vindication of the right, or deterrence of future breaches. Third, the government may show countervailing factors thatrender damages inappropriate or unjust, such as the existence of alternative remedies and good governance concerns. Finally, the courtdetermines the quantum of damages. The immunity from Charter damages set out in Mackin v.

New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1S.C.R. 405, has been recognized as responding to a good governance concern. According to the Mackin principle, absent conduct that isclearly wrong, in bad faith or an abuse of power, courts will not award damages for the harm suffered as a result of the mere enactment orapplication of a law that is subsequently declared to be unconstitutional. This confers a limited immunity intended to balance theprotection of constitutional rights against the need for effective government. In addition to legislation, Mackin immunity applies togovernment policies.

The Court’s jurisprudence has consistently framed the principle in terms sufficiently broad to cover otherinstruments. Moreover, there is no principled basis to limit the application of Mackin immunity to legislation, as proposed by a majorityof the Court. The question is not about the vehicle of state action but rather the general purpose of the immunity and under whatcircumstances the state should be liable for damages. However, the rationale underlying Mackin immunity, being the ability to carry out government functions without the threatof damages, does not support its application in the context of s. 23.

Normally, governments make regulations and develop policies tocarry out their everyday responsibilities. In doing so, they presumably endeavour not to breach Charter rights. Yet, a government that hasbreached s. 23 has not carried out its functions as mandated. Unlike most Charter rights, s. 23 requires action. Legislation must beenacted, policies must be established, and public funds must be spent to give effect to the right. The s. 23 entitlement is particularlyvulnerable to inaction, as any delay in implementation can result in assimilation and undermine access to the right itself.

An additionalbarrier of immunity for damages is ill-suited to the substance of established s. 23 claims. By the time a court reaches the question ofremedy, a breach of s. 23 will already have been found. This means that the government has failed to fund minority language educationadequately or has unduly delayed in doing so. Accordingly, an exception is warranted such that the immunity does not apply in thecontext of s. 23. Damages will therefore be appropriate for s. 23 breaches when all the Ward factors are satisfied. Cases Cited By Wagner C.J. Applied: Mahe v.

Alberta, (SCC), [1990] 1 S.C.R. 342; Association des parents de l’école Rose-des-ventsv. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103;Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; referred to: Hunter v. Southam Inc., (SCC), [1984] 2S.C.R. 145; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; Law Society of Upper Canada v. Skapinker, 1984

3 (SCC), [1984] 1 S.C.R. 357; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217; Mackell v.Ottawa Separate School Trustees (1915), (ON CA), 34 O.L.R. 335; The Board of Trustees of the Roman CatholicSeparate Schools of the City of Ottawa v. Mackell, (UK JCPC), [1917] A.C. 62; Assn. des Parents Francophones(Colombie-Britannique) v. British Columbia (1996), (BC SC), 27 B.C.L.R. (3d) 83; Reference re Manitoba LanguageRights, (SCC), [1985] 1 S.C.R. 721; Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201;Arsenault-Cameron v.

Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3; Doucet-Boudreau v. Nova Scotia (Minister of Education),2003 SCC 62, [2003] 3 S.C.R. 3; R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768; Mackin v. New Brunswick (Minister ofFinance), 2002 SCC 13, [2002] 1 S.C.R. 405; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General),2015 SCC 25, [2015] 2 S.C.R. 282; Lavoie v. Nova Scotia (Attorney General) (1989), (NS CA), 91 N.S.R. (2d) 184;Willick v. Willick, (SCC), [1994] 3 S.C.R. 670; Quebec (Education, Recreation and Sports) v. Nguyen, 2009 SCC 47,[2009] 3 S.C.R. 208; Ford v.

Quebec (Attorney General), (SCC), [1988] 2 S.C.R. 712; Frank v. Canada (AttorneyGeneral), 2019 SCC 1, [2019] 1 S.C.R. 3; Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519; Newfoundland(Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381; Health Services and Support — Facilities Subsector Bargaining Assn.v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391. By Brown and Rowe JJ. (dissenting in part) Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42, [2013] 2 S.C.R. 774; Mahe v.Alberta, (SCC), [1990] 1 S.C.R. 342; R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320; Gould v. YukonOrder of Pioneers, (SCC), [1996] 1 S.C.R. 571; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. aronv. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511; Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3;Arsenault-Cameron v. Prince Edward Island (1997), (PE SCTD), 147 Nfld. & P.E.I.R. 308; Arsenault-Cameron v.Prince Edward Island (1998), (PE SCAD), 162 Nfld. & P.E.I.R. 329; Association des parents de l’écoleRose-des-vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139; R. v.

Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631;Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609; Reference rePublic Schools Act (Man.), s. 79(3), (4) and (7), (SCC), [1993] 1 S.C.R. 839; R. v. Beaulac, (SCC),[1999] 1 S.C.R. 768; Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201; Quebec (Education, Recreationand Sports) v. Nguyen, 2009 SCC 47, [2009] 3 S.C.R. 208; R. v. Oakes, (SCC), [1986] 1 S.C.R. 103; Frank v. Canada(Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3; Alberta v.

Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567;Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381; Reference re Remuneration of Judges of the ProvincialCourt of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3; Doucet-Boudreau v. Nova Scotia (Minister of Education),2003 SCC 62, [2003] 3 S.C.R. 3; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; Henry v. British Columbia (AttorneyGeneral), 2015 SCC 24, [2015] 2 S.C.R. 214; Wynberg v. Ontario (2006), (ON CA), 82 O.R. (3d) 561; Carter v.Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; S.A. v.

Metro Vancouver Housing Corp., 2019 SCC 4, [2019] 1 S.C.R.99. Statutes and Regulations Cited Act respecting the Board of Trustees of the Roman Catholic Separate Schools of the City of Ottawa, S.O. 1915, c. 45. Act Respecting the Department of Education, S.M. 1890, c. 37. Act to repeal so much of

an Act of the Third and Fourth Years of Her present Majesty, to re-unite the Provinces of Upper and LowerCanada, and for the Government of Canada, as relates to the Use of the English Language in Instruments relating to the LegislativeCouncil and Legislative Assembly of the Province of Canada (U.K.), 1848, 11 & 12 Vict., c. 56. Canadian Charter of Rights and Freedoms, ss. 1, 7, 15, 23, 24, 33. Common Schools Act 1871, S.N.B. 1871, c. 21, s. 60. Constitution Act, 1867, ss. 93, 133. Constitution Act, 1871 (U.K.), 34 & 35 Vict., c. 28, reprinted in R.S.C. 1985, App. II, No. 11, s. 4.

Constitution Act, 1982, s. 52(1). Constitution Amendment, 1998 (Newfoundland Act), SI/98-25. Constitution Amendment, 2001 (Newfoundland and Labrador), SI/2001-117. Newfoundland Act (U.K.), 12, 13 & 14 Geo. 6, c. 22, reprinted in R.S.C. 1985, App. II, No. 32. Northwest Territories Act, S.C. 2014, c. 2 [as en. by the Northwest Territories Devolution Act, S.C. 2014, c. 2, s. 2], s. 18(1)(o). Nunavut Act, S.C. 1993, c. 28, s. 23(1)(m). Of Public Instruction, R.S.N.S. 1864, c. 58. Public Schools Act, 1896, S.O. 1896, c. 70, s. 76(2). Public Schools Act, S.M. 1890, c. 38.

School Act , R.S.A. 1922, c. 51, s. 184 . School Act , R.S.B.C. 1996, c. 412, s. 106.3 . School Act , R.S.S. 1909, c. 100, s. 135 . School Ordinance , O.N.W.T. 1901, c. 29, s. 136. Union Act, 1840 (U.K.), 3 & 4 Vict., c. 35. Yukon Act , S.C. 2002, c. 7, s. 18(1) (o). Authors Cited Behiels, Michael D. Canada’s Francophone Minority Communities: Constitutional Renewal and the Winning of School Governance . Montréal: McGill-Queen’s University Press, 2004. Canada. Department of Justice. A Consolidation of the Constitution Acts, 1867 to 1982 . Ottawa, 2012. Canada. House of Commons.

House of Commons Debates , vol. 3, 1st Sess., 32nd Parl., October 6, 1980, p. 3286. Canada. Senate and House of Commons. Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada , No. 38, 1st Sess., 32nd Parl., January 15, 1981, pp. 36-37. Canadian Intergovernmental Conference Secretariat. 18th Annual Premiers’ Conference. Statement on Language , Doc. 850-8/027. St. Andrews, N.B., August 18-19, 1977. Canadian Intergovernmental Conference Secretariat. Premiers’ Conference. Communiqué of the Conference , Doc. 850-9/007.

Montréal, February 23, 1978. Charles, W.H. Understanding Charter Damages: The Judicial Evolution of a Charter Remedy . Toronto: Irwin Law, 2016. Cook, Ramsay. “Language Policy and the Glossophagic State”, in David Schneiderman, ed., Language and the State: The Law and Politics of Identity . Cowansville, Que.: Yvon Blais, 1991, 73. Doucet, Michel, Michel Bastarache et Martin Rioux. “Les droits linguistiques: fondements et interprétation”, dans Michel Bastarache et Michel Doucet, dir., Les droits linguistiques au Canada , 3 e éd. Cowansville, Que.: Yvon Blais, 2013, 1.

Giudici, Anja, and Sandra Grizelj. “National unity in cultural diversity: how national and linguistic identities affected Swiss language curricula (1914-1961)” (2017), 53 Paedagogica Historica 137. Hogg, Peter W. Constitutional Law of Canada , 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (updated 2019, release 1). Kymlicka, Will. Multicultural Citizenship: A Liberal Theory of Minority Rights. New York: Oxford University Press, 1995. Le Dictionnaire Larousse (online: www.larousse.fr), “ pédagogie ”. Martel, Angéline. Official Language Minority Education Rights in Canada: From Instruction to Management .

Ottawa: Office of the Commissioner of Official Languages, 1991. Ontario. Department of Education. English-French Public and Separate Schools. Circular of Instructions . Toronto, 1913. Ontario. Department of Education. Roman Catholic Separate Schools and English-French Public and Separate Schools. Circular of Instructions For the School Year September to June, 1912-1913: Instructions 17 . Toronto, 1912. Oxford English Dictionary (online: www.oed.com), “pedagogy”. The Official Languages of Canada. A National Understanding: Statement of the Government of Canada on the official languages policy .

Ottawa: Minister of Supply and Services, 1977. Trudeau, Pierre Elliott. The Constitution and the People of Canada . Ottawa: Government of Canada, 1969. APPEAL from a judgment of the British Columbia Court of Appeal (Bauman C.J. and Tysoe and MacKenzie JJ.A.), 2018 BCCA 305 , 14 B.C.L.R. (6th) 52, 416 C.R.R. (2d) 278, 425 D.L.R. (4th) 230, [2018] B.C.J. No. 2836 (QL), 2018 CarswellBC 1956 (WL Can.), affirming in part a decision of Russell J., 2016 BCSC 1764 , [2016] B.C.J. No. 2007 (QL), 2016 CarswellBC 2685 (WL Can.). Appeal allowed in part, Brown and Rowe JJ. dissenting in part. Robert W. Grant , Q.C. , Mark C.

Power and Jennifer Klinck , for the appellants. Karrie A. Wolfe and Katherine Webber , for the respondents. Written submission only by Edward A. Gores , Q.C. , for the intervener the Attorney General of Nova Scotia. Written submission only by Ruth M. DeMone and Mitchell M. O’Shea , for the intervener the Attorney General of Prince Edward Island.

Alan F. Jacobson , for the intervener the Attorney General of Saskatchewan. Randy Steele , for the intervener the Attorney General of Alberta. Written submission only by Barbara G. Barrowman , Q.C. , for the intervener the Attorney General of Newfoundland and Labrador. Sarah A. E. Kay , for the intervener the Attorney General of the Northwest Territories. Christine Ruest Norrena , for the intervener the Commissioner of Official Languages of Canada. Marion Sandilands , for the intervener the Quebec Community Groups Network. Kent Roach , for the intervener the David Asper Centre for Constitutional Rights.

Érik Labelle Eastaugh , for the interveners Association des juristes d’expression française du Nouveau-Brunswick inc. and Association des enseignantes et enseignants francophones du Nouveau-Brunswick inc. Roger J. F. Lepage , for the intervener Fédération nationale des conseils scolaires francophones. Sylvain Rouleau , for the interveners Association des parents de l’école Rose-des-Vents and Association des parents de l’école des Colibris. Audrey Boctor , for the intervener the Canadian Association for Progress in Justice.

Dominic Caron , for the interveners Société de l’Acadie du Nouveau-Brunswick and Fédération des conseils d’éducation du Nouveau-Brunswick. Christian Monnin , for the intervener the Assembly of Manitoba Chiefs. Vincent Larochelle , for the intervener Commission nationale des parents francophones. Andrew Carricato , for the intervener Conseil scolaire francophone provincial de Terre-Neuve-et-Labrador. François Larocque , for the intervener the Canadian Francophonie Research Chair in Language Rights.

English version of the judgment of Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ. delivered by The Chief Justice — TABLE OF CONTENTS Paragraph I. Overview 1 II. Background 4 A. Principles to Be Applied in Interpreting

Section 23 5 B. Overview of Concepts Specific to

Section 23 : Sliding Scale and Substantive Equivalence 21 C. The Appellants and Their Claim 27 III. Judicial History 30 A. British Columbia Supreme Court, 2016 BCSC 1764 30 B. British Columbia Court of Appeal, 2018 BCCA 305 , 14 B.C.L.R. (6th) 52 48 IV. Issues 50 V. Analysis 51 A. What Is the Approach to Take in Order to Situate a Given Number of Students on the Sliding Scale? 51

(1) First Step: Establishing the Number of Students in Question 58

(2) Second Step: Taking a Comparative Approach in Order to Determine Whether the School Contemplated by the Minority Is Appropriate from the Standpoint of Pedagogy and Cost 61

(3) Third Step: Determining the Level of Services That Must Be Provided 84

(4) Summary of the Applicable Approach 90

(5) Application of the Principles With Respect to the Sliding Scale 94 B. Does the Test Used to Assess the Quality of Instruction Provided to Official Language Minorities Vary With the Number of Minority Language Students? 104 C. Does Compelling a School Board to Prioritize Its Capital Projects Infringe

Section 23? 139 D. How Is an Infringement of

Section 23 Assessed Under

Section 1? 143 E. Does the Limited Government Immunity From Damages Awards Apply to Decisions Made in Accordance With Government Policies That Are Found to Be Contrary to

Section 23 ? 164 VI. Disposition 182

I. Overview [1] A school is much more than just a place to pass on theoretical and practical knowledge. It is also a setting forsocialization where students can converse with one another and develop their potential in their own language and, in using it, familiarizethemselves with their culture. That is the spirit in which the right to receive instruction in one of Canada’s official languages was elevatedto constitutional status by means of s. 23 of the Canadian Charter of Rights and Freedoms (“Charter”). [2] This appeal concerns the scope of s. 23 and the interplay between that

section and s. 1, as well as between it and theremedial provisions of Canada’s Constitution.

The appeal affords an opportunity to identify the approach to be taken in order todetermine the level of services that is guaranteed to rights holder parents on the basis of a given number of students, consider the test tobe applied in order to determine whether the educational experience of the children of those rights holders is equivalent to the experienceprovided to the majority, discuss the justification under s. 1 of infringements of language rights, and decide whether damages can beawarded as a remedy in the event of an infringement. [3] The courts below conducted an exhaustive and rigorous analysis of certain of these issues.

But I find that theyadopted an inordinately narrow

interpretation of s. 23 and its role in the Canadian constitutional order.

Section 23 has a remedial purposerelated to promoting the development of official language minority communities and changing the status quo. In my view, in accordancewith an

interpretation of that

section that takes its remedial purpose fully into account, and in light of the trial judge’s findings of fact, theappeal should be allowed in part. II. Background [4] It is well established that Charter rights must be given a large, liberal and purposive

interpretation (Hunter v.Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v. Big M Drug Mart Ltd., (SCC), [1985] 1 S.C.R. 295). Inaddition, it is essential to place the purpose of the right in question in its linguistic, philosophical and historical contexts (Law Society ofUpper Canada v. Skapinker, (SCC), [1984] 1 S.C.R. 357; Big M Drug Mart Ltd., at p. 344). Before turning to the facts ofthis appeal, I consider it necessary to review the background to the enactment of s. 23 and the principles that must inform theinterpretation of that section. A. Principles to Be Applied in Interpreting

Section 23 [5] I must begin by noting that the question of language is an integral part of Canadian history. It is a dominant themethat is reflected in legislative initiatives from key points in the country’s history (see M. Doucet, M. Bastarache and M. Rioux, “Lesdroits linguistiques: fondements et interprétation”, in M. Bastarache and M. Doucet, eds., Les droits linguistiques au Canada (3rd ed.2013), 1, at pp. 30-52).

In language matters, the legislative pendulum has swung back and forth between two conflicting approaches, onebased on policies of assimilation, and the other on promoting the development and autonomy of official language communities. [6] In the discussions that preceded the founding of Canada, the framers of the Constitution wanted it to be mandatorythat the laws, records and journals of the nascent country be published in both of what are now the official languages: English and French(Constitution Act, 1867, s. 133).

Before that, the imperial authorities had imposed English unilingualism under the 1840 Union Act, butthey had then abandoned that policy in 1848 owing to opposition on the part of French-speaking citizens (Union Act, 1840 (U.K.), 3 & 4Vict., c. 35;

An Act to repeal so much of

an Act of the Third and Fourth Years of Her present Majesty, to re-unite the Provinces of Upperand Lower Canada, and for the Government of Canada, as relates to the Use of the English Language in Instruments relating to theLegislative Council and Legislative Assembly of the Province of Canada (U.K.), 1848, 11 & 12 Vict., c. 56; Doucet, Bastarache andRioux, at p. 33). [7] In adopting the Constitution Act, 1867, the framers also took an initial step favouring the recognition of languagerights in education.

At a time when language and religion often went hand in hand, the framers’ purpose in adopting s. 93 of theConstitution Act, 1867 was to give the provinces the exclusive power to make laws in relation to education. This

section was intendedindirectly to protect French language and culture, because it enabled French-speaking Quebecers, who were in the minority in the ofthe Catholic minority in Ontario and the Protestant minority in Quebec in the area of education. [8] The Constitution Act, 1867 did not, however, put an end to the tension that existed between those who advocated aunilingual conception of the country and those who championed a bilingual state.

This tension can be explained by, among other things,the fact that at that time, many believed that a true national state should have a shared identity and thus a single common language, andsaw education in that single language as a key to creating that shared identity (see, e.g., R. Cook, “Language Policy and the GlossophagicState”, in D. Schneiderman, ed., Language and the State: The Law and Politics of Identity (1991), 73, at pp. 75-78; A.

Giudici and S.Grizelj, “National unity in cultural diversity: how national and linguistic identities affected Swiss language curricula (1914-1961)”(2017), 53 Paedagogica Historica 137). Beginning in the late 19th century, most of Canada’s provinces and territories therefore adoptedlegislative initiatives whose effect was to prohibit French-language instruction (see Of Public Instruction, R.S.N.S. 1864, c. 58; see alsoA.

Martel, Official Language Minority Education Rights in Canada: From Instruction to Management (1991), at pp. 164 and 170; AnAct Respecting the Department of Education, S.M. 1890, c. 37; The Public Schools Act, S.M. 1890, c. 38; The Common Schools Act1871, S.N.B. 1871, c. 21, s. 60; The Public Schools Act, 1896, S.O. 1896, c. 70, s. 76(2); Ontario, Department of Education, RomanCatholic Separate Schools and English-French Public and Separate Schools, Circular of Instructions For the School Year September toJune, 1912-1913: Instructions 17 (1912); and Ontario, Department of Education, English-French Public and Separate Schools, Circularof Instructions (1913) (collectively, “Regulation 17”);

An Act respecting the Board of Trustees of the Roman Catholic Separate Schoolsof the City of Ottawa, S.O. 1915, c. 45; The School Ordinance, O.N.W.T. 1901, c. 29, s. 136; The School Act, R.S.S. 1909, c. 100, s. 135;The School Act, R.S.A. 1922, c. 51, s. 184). [9] In Ontario, some parents and a Catholic school board — many of whose students were French speakers —challenged the constitutionality of Regulation 17, which prohibited French-language instruction after the first two years of primary

school. They argued that it infringed s. 93 of the Constitution Act, 1867. The Appellate Division of the Ontario Supreme Court rejectedthat argument. In his reasons, Garrow J.A. relied in particular on s. 133 of the Constitution Act, 1867 to conclude that the use of anylanguage other than English was merely a concession and not a right, and that the use of French was not protected: It is a perfectly natural thing that those of French descent should love their noble language, and even passionately desire to promote,as far as reasonably possible, its perpetuation here.

One may even respect a similar sentiment on the part of the Germans, the Italians,and the others settled among us to whom the English is a foreign tongue. But it is not to be ignored or forgotten that, while all aretolerated, the official language of this Province, as of the Empire, is English, and that the official use of any other language is in thenature of a concession and not of a right. This is, I think, well, and indeed in my opinion conclusively, illustrated by the provisions of sec.133 of the British North America Act . . . . (Mackell v.

Ottawa Separate School Trustees (1915), (ON CA), 34 O.L.R. 335, at p. 343) [10] The Judicial Committee of the Privy Council upheld the Appellate Division’s decision and affirmed that s. 93 did notprotect French-language instruction (The Board of Trustees of the Roman Catholic Separate Schools of the City of Ottawa v.

Mackell,(UK JCPC), [1917] A.C. 62, at pp. 70-72). [11] Seventy years after Regulation 17 was made, the framers of the Charter adopted s. 23, which enshrines in theConstitution the right of citizens from the country’s English and French linguistic minorities to have their children receive instruction intheir language where the number of children so warrants.

In adopting that section, they sought “to ensure that vulnerable minority groupsare endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of themajority” (Reference re Secession of Quebec, at para. 74).

By doing so, they definitively closed the door on language policies that wouldprevent instruction in the language of a minority, and chose an approach that favoured the promotion and development of minoritylanguage communities across the country. [12] The historical and social context at the root of language rights in education makes clear the unique role of s. 23 inCanada’s constitutional landscape. In an oft-quoted passage, Dickson C.J. illustrated the section’s importance by stating that it representsa “linchpin in this nation's commitment to the values of bilingualism and biculturalism” (Mahe v.

Alberta, (SCC),[1990] 1 S.C.R. 342, at p. 350). More recently, in Association des parents de l’école Rose-des-vents v. British Columbia (Education),2015 SCC 21, [2015] 2 S.C.R. 139 (“Rose-des-vents”), Karakatsanis J. noted that Canada has a bicultural founding character and that itscommitment to bilingualism sets it apart among nations (para. 25, citing Assn. des Parents Francophones (Colombie-Britannique) v.British Columbia (1996), (BC SC), 27 B.C.L.R. (3d) 83 (S.C.), at para. 24). [13] However, the importance of s. 23 is not based solely on its role in the formation of Canada’s identity as a country.

Thesection is also important because of the role it plays in the identity of Canadians as individuals and as members of linguisticcommunities.

Section 23 is intended to preserve culture and language, two core elements of the notions of identity and well-being ofindividuals and communities (W. Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (1995), at p. 89). [14] In Reference re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721, this Court noted, onbeginning its analysis, “the essential role that language plays in human existence, development and dignity”, and its importance in“bridg[ing] the gap between isolation and community” (p. 744).

In Mahe, the Court stressed the interplay of language and culture, statingthat “any broad guarantee of language rights, especially in the context of education, cannot be separated from a concern for the cultureassociated with the language. Language is more than a mere means of communication, it is part and parcel of the identity and culture ofthe people speaking it” (p. 362).

And in Rose-des-vents, at para. 26, the Court endorsed this comment by the Royal Commission onBilingualism and Biculturalism: “Language and culture are not synonymous, but the vitality of the language is a necessary condition forthe complete preservation of a culture” (Report of the Royal Commission on Bilingualism and Biculturalism, Book II, Education (1968),at p. 8). [15] I would add that in conducting the analysis under s. 23, a court must bear in mind that this

section has three purposes,as it is at once preventive, remedial and unifying in nature. It is intended not only to prevent the erosion of official languagecommunities, but also to redress past injustices and promote the development of those communities (Solski (Tutor of) v. Quebec(Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201, at para. 3; Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1S.C.R. 3, at para. 27). Dickson C.J. explained this remedial purpose by reproducing the comment of Kerans J.A. that “the very existenceof the

section implies the inadequacy of the present regime” (Mahe, at p. 363). In the face of this “inadequacy of the present regime”,s. 23 was thus designed to alter the status quo. Finally, the

section also has a unifying purpose in that it accommodates mobility byenabling citizens to move anywhere in the country without fearing that they will have to abandon their language and culture (Solski, atpara. 30; House of Commons Debates, vol. 3, 1st Sess., 32nd Parl., October 6, 1980, at p. 3286). [16] To fully achieve its remedial purpose, s. 23 must, however, be implemented vigilantly. As this Court has noted, thelikelihood of assimilation and of cultural erosion will increase with each passing school year if nothing is done to prevent them.

Theresult is that the actual effectiveness of s. 23 is particularly vulnerable to government inaction (Doucet-Boudreau v. Nova Scotia(Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 29; Rose-des-vents, at para. 28). This means that the courts have acrucial role to play, as the framers made them responsible for overseeing the implementation and protection of Charter rights. [17] I would also point out that, unlike some other rights provisions, s. 23 recognizes rights that are assessed not only inindividual terms, but also on a collective level.

The rights conferred by s. 23 are individual rights, but they have a collective scope. Asthis Court stated in Solski, this means that the courts must, in interpreting s. 23, consider each language group’s social context,demographics and history.

The courts thus have the delicate task of reconciling the sometimes divergent concerns of French-speakingminority groups outside Quebec, whose language rights have been acquired at considerable expense, with the particular reality ofQuebec’s English-speaking minority and with how French-speaking Quebecers, who are in the majority in that province but whoselanguage is in the minority in the country as a whole, perceive their future in Canada (Solski, at para. 5). [18] Finally, I would note that the fact that s. 23 originally resulted from a political compromise cannot on its own justify a

restrictive

interpretation of the rights for which the

section provides. While it is true that this Court has in the past evoked a distinctionbetween language rights resulting from a political compromise and the other rights guaranteed by the Charter, those days are over. TheCourt made this clear in R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768, at para. 24: Though constitutional language rights result from a political compromise, this is not a characteristic that uniquely applies to suchrights. A.

Riddell, in “À la recherche du temps perdu: la Cour suprême et l’interprétation des droits linguistiques constitutionnels dans lesannées 80” (1988), 29 C. de D. 829, at p. 846, underlines that a political compromise also led to the adoption of ss. 7 and 15 of theCharter and argues, at p. 848, that there is no basis in the constitutional history of Canada for holding that any such politicalcompromises require a restrictive

interpretation of constitutional guarantees. I agree that the existence of a political compromise iswithout consequence with regard to the scope of language rights. [Emphasis added.] The Court reaffirmed this statement — that the political compromise that gave rise to language rights is without consequence for thescope of those rights — in the context of s. 23 (Arsenault-Cameron, at para. 27; Doucet-Boudreau, at para. 27). The result is that thecases that date back to when the Court was equating language rights with a political compromise, which include Mahe, must beconsidered in light of the subsequent cases in which the Court favoured a liberal

interpretation that is consistent with the development ofofficial language communities. [19] To limit the scope of language rights merely because they resulted from a political compromise would represent adangerous reversion.

Many rights that have been granted to Canada’s minorities were dearly won over many years, and it is up to thecourts to give full effect to them, and to do so clearly and transparently. [20] I will pause here to point out that although, in this appeal, my colleagues would grant many of the appellants’ claimsfor relief, they systematically avoid clarifying how s. 23 should be applied so as to enhance the protection of language rights in thiscountry.

Our decision in this case must not be limited to making schools available to the appellants as if the case were one of a kind, as itis also necessary to ensure that future claimants are not forced to undertake interminable judicial proceedings in order to have their rightsprotected, recognized and enforced. To disregard the problems raised by an erroneous

interpretation and application of s. 23, in particularthe inevitable judicialization and lengthy delays that are characteristically involved in exercising language rights, is to undermine accessto justice and could slow Canada’s historical progress toward the ideal being sought in s. 23: that of “giv[ing] effect to the equalpartnership of the two official language groups in the context of education” (Arsenault-Cameron, at para. 26). B. Overview of Concepts Specific to

Section 23: Sliding Scale and Substantive Equivalence [21] I feel that it will also be helpful to briefly explain two judge-made concepts that are specific to the

interpretation ofs. 23: the sliding scale and substantive equivalence. These two concepts were developed to compensate for the silence of s. 23 regardingthe level of services and the quality of instruction it guarantees to official language minorities. [22] Under s. 23, the application of the rights of official language minorities depends on there being a sufficient number ofchildren. But the

section is silent as to what number would justify the application of the right to instruction and to educational facilities.Section 23(3)(

a) provides that the right to instruction in the language of the minority “applies wherever in the province the number ofchildren of citizens who have such a right is sufficient”.

It is complemented by s. 23(3)(b), which provides that the right to instructionincludes a right to receive that instruction in minority language facilities provided by the government “where the number of thosechildren so warrants”. [23] In Mahe, this Court rejected what was called the “separate rights” approach, according to which s. 23 provides foronly two rights: a right to educational facilities where there are a specific number of students and a right only to instruction where thenumber of students is smaller.

The Court held that s. 23 must instead be understood “as encompassing a ‘sliding scale’ of requirement”(p. 366). [24] By virtue of this “sliding scale” concept, s. 23 provides a basis for a range of educational services. The low end of thescale corresponds to the right only to instruction that is provided for in s. 23(3)(a), while the high end corresponds to the “upper level ofmanagement and control” provided for in s. 23(3)(b) (Mahe, at p. 370).

In other words, at the low end, s. 23 rights holders are entitled tohave their children receive instruction in the language of the official language minority, but the extent to which the minority exercisescontrol over the provision of instruction rises with the number of children of rights holders. At the low end of the scale, the minority isentitled only to instruction in its language. In the middle, it might have control over one or more classrooms in a school of the majority orover one part of a school it shares with the majority.

It might also have control over the hiring of teaching staff and over certainexpenditures. At the high end, the minority has control over separate educational facilities, that is, over a homogeneous school. Thenumber of children of rights holders might also entitle the minority to the management and control of a separate school board. In short,once the minimum threshold of s. 23(3)(

a) is crossed, the sliding scale applies to determine the level of services that corresponds to theextent to which the minority will have control over the provision of educational services. [25] Thus, this Court has recognized that s. 23 has an internal limit, the “numbers warrant” requirement. The courtsdeveloped the sliding scale concept in order to give substance to that internal limit.

Section 23 imposes no constitutional obligation on agovernment where the number of students in question does not suffice to justify the creation of a minority language program ofinstruction (Mahe, at p. 367). The right to such a program of instruction corresponds to the low end of the sliding scale, a limit belowwhich the government has no obligation under s. 23. In this way, the courts have recognized that public funds are limited and thatgovernments cannot be required to set up educational facilities for a very small number of students.

Where the number of students inquestion crosses the numbers warrant threshold, however, that number must then be situated on the sliding scale in order to establish thescope of the rights guaranteed to the rights holders by s. 23. This appeal affords us an opportunity to clarify the approach to be taken inorder to situate a given number of students on the sliding scale. [26]

Section 23 is also silent regarding the quality of the instruction that must be provided to the official languageminority. In Rose-des-vents, this Court affirmed that an official language minority is entitled to an educational experience that issubstantively equivalent to that of the majority. The Court indicated that instruction is not substantively equivalent if a reasonable parent

is discouraged from exercising his or her language rights because the minority language school is meaningfully inferior to that of themajority (para. 35). It follows that to assess the quality of instruction, courts must engage in a process of comparing the minoritylanguage school with majority language schools that represent realistic alternatives. However, Rose-des-vents concerned a situation inwhich the number of students enrolled at the minority language school was comparable to the numbers of students enrolled at nearbymajority language schools.

This appeal affords us an opportunity to determine whether the substantive equivalence test fromRose-des-vents applies regardless of the number of minority language students in question, or whether the assessment of equivalencemust vary with the number of such students. C. The Appellants and Their Claim [27] The appellants are the Conseil scolaire francophone de la Colombie-Britannique (“CSF”), the Fédération des parentsfrancophones de Colombie-Britannique and three parents who are rights holders under s. 23 of the Charter. The CSF is the soleFrench-language school board in British Columbia.

It began to exercise its powers in 1997 following legal proceedings under s. 23.

Atthe time of filing of the proceeding in this Court, the CSF’s territory covered the entire province, and it had 37 schools spread over 17parts of the province. [28] In June 2010, the appellants filed a notice of civil claim in the British Columbia Supreme Court against Her Majestythe Queen in Right of the Province of British Columbia and the Minister of Education of British Columbia (collectively, the “Province”),submitting that several aspects of the funding of the education system penalized the official language minority and infringed its s. 23rights.

The alleged infringements were numerous, and can be divided into two categories. The first, which involved systemic claims,concerned, among other things, the fact that the CSF had not received an annual grant for building maintenance, the formula used to setpriorities for capital projects, a lack of funding for school transportation and a lack of space for cultural activities. The second categoryinvolved claims by the appellants for the purpose of obtaining new schools or improvements to existing schools in 17 communities. [29] At trial, the appellants were partially successful.

They appealed to the British Columbia Court of Appeal. Their appealwas dismissed, while the cross appeal the Province had subsequently filed

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