AN APPLICATION FOR LEAVE TO APPEAL THE DECISION OF THE COURT OF APPEAL WILL BE FILED TODAY AT THE SUPREME COURT OF CANADA
Given the importance of the BC Court of Appeal’s decision to the future of French in this province and throughout the country, the Conseil scolaire francophone de la Colombie-Britannique, the Fédération des parents francophones de Colombie-Britannique and co-plaintiff parents will ask the highest court in Canada to hear an appeal.
It is worth recalling that numerous gains for French-language education were achieved before the BC Supreme Court; notably, the creation of a funding envelope for infrastructure projects specific to francophone schools. These gains remain intact.
The CSF, the FPFCB and the co-plaintiff parents are hopeful that the Supreme Court of Canada will allow an appeal, given the questions of national importance raised, including:
- Substantive equivalence. In her decision, Justice Russell erroneously concluded that, in determining whether a CSF school is equivalent to the competing English-language schools, the court must look only to the English-language schools with similar or identical enrolment and capacity. The Court of Appeal has adopted this analysis without reserve. Such an analysis will almost always disadvantage the linguistic minority. The British Columbia Courts have adopted a “proportionality” approach in comparing CSF schools and those of the majority and in doing so, have completely disregarded the “substantive equivalence” criterion previously set out by the Supreme Court of Canada.
- Section one of the Canadian Charter of Rights and Freedoms (Charter). The appeal questioned Justice Russell’s conclusion that section 1 of the Charter could be successfully invoked by a province as rich as British Columbia to justify an infringement of section 23. According to the Court of Appeal, providing the school infrastructure to which francophones have a right would be too expensive. Prior to this decision, the only time an appellate court, including the Supreme Court of Canada, has “justified” a Charter breach on the basis of costs was in a situation of economic crises.
- Damages for Charter violations. The trial judge concluded that because of decades of systemic underfunding for school transportation, the Province was required to correct the constitutional infringement by paying the CSF six million dollars in damages. The judges of the Court of Appeal overturned this conclusion. As a result of the test as formulated today by the Court of Appeal, damage awards to those whose Charter rights have been infringed will be awarded much more sparingly.
The Supreme Court of Canada could take several months before deciding whether to allow an appeal. If the Court does allow the appeal, oral submissions before 9 judges will be made over the course of a single day.
Conseil scolaire francophone de la Colombie-Britannique
Since it was established in 1995, the CSF has been providing educational programs and services promoting the comprehensive development and cultural identity of the province’s Francophone students. A partner in the advancement of the Francophone community in British Columbia, the CSF now has more than 6,100 students attending 41 schools – including 24 homogeneous French-language schools – and serves around one hundred communities throughout the province.
Fédération des parents francophones de Colombie-Britannique
Founded in 1979, the FPFCB is an umbrella organization for 46 school and preschool parents’ associations. Its mission is to bring together, represent, support and empower parents in their role as primary educators, and to promote their engagement and participation in the creation of a vibrant, exemplary Francophone environment.