Skip to main content

Even when their numbers are relatively small, francophone minorities, and the anglophone minority in Quebec, have a right to their own high-quality schools, the Supreme Court of Canada ruled on Friday.

The ruling came after a 10-year legal battle launched by a francophone school board and francophone parents in British Columbia that alleged poor-quality facilities and a lack of gyms and libraries. Two lower courts declined to order the province to provide the hundreds of millions of dollars in additional capital funding the groups requested.

But the Supreme Court gave the B.C. francophone groups a ringing victory, ordering that new schools be built in eight communities (it did not specify the cost). In doing so, the court set out a detailed prescription for the public funding of linguistic minority education across Canada.

Its goal, it said, is to avoid “interminable” legal proceedings over the language rights of children who may have become adults by the time of a ruling. “Nearly two generations of elementary school students have thus been denied their language rights, and this has contributed to the erosion of British Columbia’s French‑speaking community,” Chief Justice Richard Wagner wrote for the majority in a 7-2 ruling.

Mark Power, a lawyer who represented the Conseil-scolaire francophone de la Colombie-Britannique (CSF), called the ruling "a spectacular win. It’s a landmark moment for minority-language education rights. Not just in British Columbia, but across the country.”

“We were right to start this fight; we have rights, and we defended them," said Marie-Pierre Lavoie, the CSF’s president. "Our children will not benefit directly from this decision, but our grandchildren will.” She said she did not know the cost of the eight schools, but that her group would work with the province to make it happen.

The B.C. Ministry of Education said in a statement it respects the Supreme Court’s direction and guidance. “Given the complexity of the case, we will need time to carefully review the decision and to determine next steps.” Alberta, too, said it is reviewing the ruling.

Section 23 of the Canadian Charter of Rights and Freedoms obliges the provinces to pay for education for the English- or French-speaking linguistic minority where numbers warrant. Previous rulings had said the linguistic minority had the right to schools of equivalent quality. But those cases dealt with numbers of minority-language students comparable to the numbers in large majority-language schools.

The B.C. case does not turn a qualified right, based on numbers, into an absolute one; but it vastly expands its reach. The case involved 17 communities, and some, such as the one in Chilliwack, had as few as 60 students. (Overall, the francophone board has 6,200 students out of a provincial total of 576,000 from K-12.) The province argued that small schools for minority-language students should not be established in locales that have no small English-language schools. The Supreme Court rejected that, saying that if the majority has small schools anywhere in the province, even in rural parts, the linguistic minority is entitled to schools of comparable size, even in cities. (Two dissenters on the court, Justice Russell Brown and Justice Malcolm Rowe, said the comparison should be made within the community.)

And the quality of those small schools should be comparable to that of large local schools, the majority said. The trial judge, the recently retired Loryl Russell of the B.C. Supreme Court, had said the quality of the small minority schools should not be “meaningfully disproportionate” to the large majority schools. But Chief Justice Wagner wrote that such a test would send the wrong signal about the required quality of education. He also said it would lead to simple mathematical calculations and absurd results, with tiny gyms in which students could not play sports accepted as proportionate.

The court also said cost should take a back seat to educational needs when a province assesses what it must do to meet its constitutional obligation to an official-languages minority. And it said cost cannot be considered at all when a court decides whether infringements on children’s right to an education in their own language are justified under the Charter of Rights and Freedoms. (The Charter’s Section 1 allows governments to place limits on constitutional rights if they can show they’re justified.)

The court also restored Justice Russell’s $6-million award for “Charter damages,” for violating the group’s rights by failing to provide adequate transportation. The appeal court had quashed that award, saying governments are immune from such damages for policy decisions later seen to be unconstitutional. Not on fundamental rights, the Supreme Court said.

The leaders of francophone organizations in three provinces, and one national group, said the ruling is important for the survival of French in Canada, given that in minority environments, schools are the strongest way to transmit language and culture.

“It reinforces official languages as one of our fundamental values in this country,” said Raymond Théberge, Canada’s Official Languages Commissioner.

Lawyer Marion Sandilands, who represented the Quebec Community Groups Network, an English-language advocacy group that intervened in the case, said the organization will use the decision in its argument against the province’s Bill 40, which it says infringes on the rights of minority communities to manage their schools.

Carol Jolin, president of l’Assemblée de la francophonie de l’Ontario, said the decision ensures no backsliding in educational quality as governments change.