Backgrounder – Findings of B.C. courts in CSFC-B, Fédération des parents francophones de Colombie- Britannique, et al. v British Columbia (Education)

Context

From 2001 to 2014, enrolment at schools of the Conseil scolaire francophone de la Colombie-Britannique (CSF) nearly doubled, while that in schools of B.C.’s English-language school boards declined significantly, falling by up to 40% in some cases. Despite these opposing trends, the provincial government did not approve any capital projects for the CSF between 2005 and 2011.

For reference:

1. In 2001-2002, 2,871 students were enrolled at CSF schools.
2. In 2010-2011, 4,471 students were enrolled at CSF schools.
3. At the time of trial, in 2014-2015, 5,382 students were enrolled at CSF schools.
4. Today, in 2018-2019, more than 6,100 students are enrolled at CSF schools.

In 2010, in response to the province’s persistent refusal to fund the CSF’s capital projects, a legal action was launched, challenging the overall system for funding capital projects and the province’s failure to fund capital projects in certain communities. Although the decisions of the Supreme Court of British Columbia resulted in several important gains, a number of findings had to be appealed by the plaintiffs. The British Columbia Court of Appeal dismissed the appeal.

In 2018, the plaintiffs filed, at the Supreme Court of Canada, an application for leave to appeal the decision of the British Columbia Court of Appeal. The application for leave raised three questions of national importance aimed at rectifying fundamental errors of law which, if not corrected, would impede section 23 of the Canadian Charter of Rights and Freedoms (the “Charter”) and prevent its purpose from being truly achieved, to the detriment of official language minority communities across Canada.

Summary of section 23 of the Charter

Section 23 imposes a positive obligation on governments to offer publicly-funded elementary and secondary education in the minority language in order to preserve and promote official language minority communities and allow them to resist the forces of assimilation.

Section 23 guarantees minority language instruction and facilities where numbers warrant. According to the Supreme Court of Canada, the level of services varies depending on what is appropriate for the number of minority language students in question. Section 23 guarantees the right to management and control over education “by and for” the official language community.

Significant findings in the decisions of the B.C. courts

First, the B.C. courts found that numerous violations of section 23 are “justified” in a democratic society (under section 1 of the Charter) because they found that assimilation was inevitable in B.C., or because the cost of the remedies sought to address the violations of section 23 was too high. This is a fundamental error that undermines the purpose of section 23 and distorts the jurisprudence of the Supreme Court of Canada on section 1 in the following ways:

1. By finding that a number of violations of section 23 were essentially “not all that serious” since assimilation is inevitable in B.C., and by ignoring the impact of assimilation on individuals (i.e. the loss of all ties to the linguistic community and the permanent, intergenerational extinguishment of the rights of parents and children under section 23), the B.C. courts justified violations of section 23, undermining the very foundation of the right.
2. By considering cost saving as a sufficient reason to justify violations of section 23 of the Charter, the B.C. courts justified these violations as they found it was reasonable for the government to use its resources for other purposes. Such a finding is contrary to the jurisprudence of the Supreme Court of Canada, which until now has maintained that financial considerations do not generally justify violations of fundamental rights, except in the case of a serious financial crisis. These limits imposed by the Supreme Court of Canada are necessary as it would almost always be more economical for a government to ignore minority rights and use its resources for other purposes.

This is the first time in the history of the Charter that a court has used section 1 to undermine the very foundation of a constitutional right. The intervention of the Supreme Court of Canada could prevent significant negative repercussions, both for section 23 cases and for those involving other rights protected by the Charter.

Second, for the first time, B.C. courts adopted a “proportionality” standard as a guiding principle for section 23, thus radically limiting the application of the standard of substantive equivalence previously applied by the Supreme Court of Canada. This standard allows children attending section 23 schools to receive a lower quality education than that received by children attending majority language schools and limits the application of the standard of substantive equivalence to situations in which the schools of the minority are of a similar size to those of the majority.

The Supreme Court of Canada could thus determine whether substantive equivalence is to become the exception rather than the rule with regard to section 23.

Third, the courts of B.C. found that unconstitutional government policies are immune from the granting of financial compensation in the event of a Charter violation, and thus extended the immunity recognized by the Supreme Court of Canada for violations resulting from unconstitutional laws. The decision to award damages to the CSF was therefore overturned. This approach is particularly harmful in view of the unique character of section 23, which guarantees public funding. Faced with the persistent refusal of governments to meet their obligations under section 23, rights-holders would therefore almost never be able to obtain an appropriate and just remedy, because public funding is governed by laws or policies.

The British Columbia Court of Appeal has significantly limited the possibility of granting financial compensation to plaintiffs who have suffered a violation of a right guaranteed by the Charter. The plaintiffs are asking the Supreme Court of Canada to overturn this finding.