DISMISSAL OF THE APPEAL REGARDING FRENCH LANGUAGE SCHOOLS IN BRITISH-COLUMBIA IS IT TIME TO FOR THE SUPREME COURT OF CANADA TO WEIGH IN?

Today, the British Columbia Court of Appeal dismissed the appeal of Justice Russell’s 2016 decision brought by the Conseil scolaire francophone de la Colombie-Britannique (CSF), the Fédération des parents francophones de Colombie-Britannique (Fédération des parents) and co-appellant parents.

An analysis of the decision is underway. Nevertheless, at first glance, the Court of Appeal seems to have rejected, muddied or ignored many of the guiding principles previously set out by the Supreme Court of Canada. Given the conclusions reached by the Court of Appeal and their impact on the future of French in British Columbia and across the country, there is a possibility that the country’s highest court will want the opportunity to weigh in.

The appeal brought by the CSF, the Fédération des parents and the co-appellant parents, raised, notably, the two following points:

• 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 courts of British Columbia have adopted a “proportionality” approach in comparing CSF schools and those of the majority and in doing so, completely disregard 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, had, save exception, “justified” a Charter breach on the basis of costs was in a situation of economic crises.

It is worth recalling that numerous gains for French-language education were achieved at trial, most notably the creation of a funding envelope for infrastructure projects specific to francophone schools.  These gains remain intact, with only one exception: 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.

A decision as to whether to bring the matter before the Supreme Court of Canada will be made in the upcoming weeks.

“The decision released this morning is a hard hit for French language education in British Columbia, for which the needs are major and urgent”, explained Marie-France Lapierre, Chair of the CSF. “I am impatiently awaiting the analysis of the decision released today so that we can determine the next step, including the possibility of going to Ottawa, to appear before the Supreme Court of Canada.”

“The decision is extremely disappointing. We had hoped that the court of appeal would decide in our favour,” affirmed Suzana Straus, interim president of the Fédération des parents. “The impact of the decision on French language communities as well as the on the future of French language schools worries me, especially considering the demographic growth of our community in British Columbia.”

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 6,000 students attending 40 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 47 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.