L'école Rose-Des-Vents: Minority Language Education & Substantive Equality

Canadian courts have long established that the education provided to minority language groups in Canada (English language in Quebec and French language in the rest of Canada) must be equivalent to that offered to the majority language group. The Supreme Court of Canada (the "Court") recently rendered a decision identifying the parameters a court should apply when determining whether or not a minority language school offers educational services equivalent to a majority language school. In Association des parents de l'école Rose-des-vents v. British Columbia (Education), 2015 SCC 21 (CanLII), the Court applied a pragmatic approach comparing the existing educational choices available to parents in order to determine the applicant's minority language rights.

Section 23 of the Canadian Charter of Rights and Freedoms provides that certain Canadians are entitled to enroll their children in a minority language school, which provides education in the student's first language and transmits the culture of the minority language community. The purpose of section 23 of the Charter was described in Commission des Ecoles Fransaskoises Inc. et al. v. Saskatchewan, (1988) 64 Sask R 123 as "the preservation and enhancement, through education, of Canada's two official languages and of the cultural identity of each language group."

Rose-des-vents is a novel interpretation of section 23 and the rights contained therein. Previous decisions of the Court have, on the basis of a sliding scale, tied the services available to the number of potential minority language rights students who might benefit from the services. Rose-des-vents, however, asks whether or not the services already being provided by the minority language school are sufficient as compared to what is offered at majority language schools.

Section 23 is remedial in nature. In other words, it is intended, in part, to correct and prevent the erosion of official language minority groups and to promote the equal partnership between Canada's two official languages. Historically, this has meant that governments provide substantively equivalent, although not the same, educational services for the two official language groups when the number of potential minority language students justifies the highest level of services on the sliding scale.

Minority language school boards have tended to argue that either their operational funding or capital funding (or both) is insufficient to provide equivalent educational...

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