Politics

Supreme Court of Canada rules B.C. violated French-language education Charter rights

The Supreme Court of Canada has ordered the government of British Columbia to pay the province's sole French-language school board $6 million in damages for underfunding its school bus transportation system for a decade, and an additional $1.1 million for operations.

B.C. parents and education board argued province systematically underfunded French-language school system

Section 23 of the Canadian Charter of Rights and Freedoms recognizes the right to receive primary and secondary education in the English or French language, where population numbers warrant. (Jean-Christophe/AFP/Getty Images)

The Supreme Court of Canada has ordered the government of British Columbia to pay the province's sole French-language school board $6 million in damages for underfunding its school bus transportation system for a decade, and an additional $1.1 million for operations.

In a 7-2 decision released Friday, the nation's highest court said the provincial government's funding approach to the French-language school system violated section S. 23 of the Charter of Rights and Freedoms, which guarantees education in one of Canada's two official languages.

"The mission of a government is to manage a limited budget in order to address needs that are, for their part, unlimited," wrote Supreme Court Chief Justice Richard Wagner.

"This is not a pressing and substantial objective that can justify an infringement of rights and freedoms. Treating this role as such an objective would lead society down a slippery slope and would risk watering down the scope of the charter."

The decision by Canada's highest court could have ripple effects across the country. (Sean Kilpatrick/Canadian Press)

The case revolved around a claim by some parents and the school board, the Conseil scolaire francophone de la Colombie-Britannique. They accused the provincial government of denying their charter rights by systematically underfunding French-language schools.

Suzana Straus, who lives in Richmond, B.C., said it takes her Grade 9 son an hour to get to a school where he can take French instruction.

Straus said the provincial government's policies are an obstacle for francophone parents who want their children to be fluently bilingual.

"It means, for many families, they will choose not to send their children to francophone schools," said Straus, who is president of the Fédération des parents francophones de Colombie-Britannique.

"They will choose to go to the local school, and that means assimilation. And that saddens me tremendously."

B.C. says it needs time to determine next steps

Prime Minister Justin Trudeau called the decision good news for minority-language communities across the country who have long argued the provinces aren't providing the right level of services.

"We now hope that the provincial governments will step up further in areas that are their exclusive jurisdictions, like education," Trudeau said.

"As a federal government, we will always stand ready to support and help minority-language communities across this country."

Watch | Trudeau reacts to Supreme Court decision Friday:

Prime Minister Justin Trudeau says its "good news" that the Supreme Court of Canada is ordering the government of British Columbia to pay the province's sole French-language school board more than $7 million for violating charter rights. 0:41

In an email statement to CBC News, the B.C. government said it respects the direction and guidance on minority-language education rights from the Supreme Court, and needs time to carefully review the decision and decide on next steps.

"We will continue to work with the francophone community in B.C. to ensure minority-language education rights are respected," the statement said.

Mark Power, a lawyer who works in Ottawa and Vancouver, is representing the parents and the school board, who have been seeking justice for the past decade. He said the case has implications for governments and minority-language school boards across the country.

In B.C., the ruling means the provincial government will now have to provide francophone schools where none presently exist, which Power says includes Burnaby and eastern and western regions of Victoria.

Power said it could cost the province "dozens and dozens of millions of dollars" to implement the judgment, or it could be done with more economic efficiency by transferring unused or underutilized school sites to the francophone school board.

Either way, said Power, the province must take action now.

"It's a massive win," said Power Friday on CBC Radio's The Early Edition. "It's a sea change in the relationship between the B.C. francophone community on the one hand, and the Ministry of Education on the other."

Lawyer Mark Power: 'It's hard to understand exactly how those minority rights can be ignored by the state.' (Alex Lamic/Radio-Canada)

Power said the Constitution guarantees the right to publicly funded primary and secondary English education in Quebec, and publicly funded primary and secondary French-language education elsewhere in Canada — where numbers warrant.

Approximately 64,325 people speak French as their primary language in B.C — a 21 per cent increase since 2006, according to 2016 data from the Office of the Commissioner of Official Languages.

The parents and school board wanted the province to change its funding method for French-language education and compensate the board for inadequate funding.

They also wanted the B.C. government to address infrastructure issues with French-language schools that force them to divide classrooms to make room for all their students.

The parents and school board won a partial victory at the trial level, where a judge ruled some of the province's procedures for deciding on minority-language education funding unjustifiably breached charter rights.

At that time, Justice Loryl Russell awarded $6 million in damages for a charter breach based on the school division's transportation program, which Russell ruled the province "chronically underfunded" for a decade.

But the judge also concluded that the high cost of building new francophone schools in some parts of B.C. justified infringing upon the charter right — and suggested that in some cases it would simply delay inevitable linguistic assimilation.

"That's hard to grasp," Power said. "It's hard to understand exactly how those minority rights can be ignored by the state and what reason could justify that."

The parents and school board appealed the decision. That appeal was dismissed by the B.C. Court of Appeal, which allowed a cross-appeal by the province. The appeal court also set aside the damages awarded by the trial judge. 

The high court's ruling comes too late for some parents and children who already have gone through the education system.

Still, Straus said she hopes it will make a difference for others.

"It will mainly be for future generations," she said, "for our culture to be able to thrive, for future parents not to make these difficult decisions that we had to make."

About the Author

Olivia Stefanovich

Senior reporter

Olivia Stefanovich is a senior reporter for CBC's Parliamentary Bureau based in Ottawa. She previously worked in Toronto, Saskatchewan and northern Ontario. Connect with her on Twitter at @CBCOlivia. Story tips welcome: olivia.stefanovich@cbc.ca.

With files from The Early Edition

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