Article 23

Article 23
The Nature and Purpose of Article 23
The Restorative Nature of Article 23
Provincial Responsibilities and Obligations
The Rightful Claimants and the Issue of Numbers
The Management and Control of Minority Educational Institutions
The Decision of the Supreme Court of Nova Scotia
Decision of the Nova Scotia Court of Appeal
Respect for Article 23: At What Price?
Update of the Access to School Surcharge Committee

Article 23

This is specified in section 23 regarding the rights to education in the language of the minority.

23. (1) Canadian citizens

a) whose first language learned and still understood is that of the French or English-speaking minority in the province in which they reside,

(b) who have been educated, at the primary level, in English or French in Canada and who reside in a province in which the language in which they received that instruction is that of the English or French minority population of the province, in either case, the right to have their children educated at the primary and secondary levels in that language.

(2) Canadian citizens whose children have received or are receiving elementary or secondary instruction in English or French in Canada have the right to have all their children educated at the elementary and secondary levels in the language of that child. instruction.

(3) The entitlement of Canadian citizens under subsections (1) and (2) to have their children educated at the elementary and secondary levels in the language of the francophone or anglophone minority of a province

(a) is practiced anywhere in the province where the number of citizens who have the right is sufficient to justify the provision of minority language education on public funds,

(b) includes, where the number of such children so warrants, the right to have them educated in publicly funded minority language educational institutions.

The nature and purpose of section 23

In its judgment of March 15, 1990, in the case of Mahé v. France, no. the Queen , the Supreme Court of Canada has made very important clarifications about the nature and purposes of section 23.

Section 23 is one of the components of the constitutional protection of official languages ​​in Canada. It is, however, of particular importance in this respect because of the primary role of education in maintaining and developing linguistic and cultural vitality. This article is therefore the keystone of Canada’s commitment to bilingualism and biculturalism. (p.2 of the judgment)

The court thus explicitly recognizes what the Francophone minority communities across the country have always supported and defended: that without an education in French as a first language, they will not be able to survive or flourish, and that they are doomed to disappear more or less long term. More importantly, the Court recognizes that without the protection afforded to minority language education, all efforts in the area of ​​bilingualism may not be successful.

The general purpose of art. 23 of the Charter is to maintain both of Canada’s official languages ​​and the cultures they represent and to foster the development of each of these languages, to the extent possible, in those provinces where it is not spoken by Canada. majority.

The concept of official languages ​​goes beyond language as a means of communication, but also encompasses the notion of culture, and therefore of communities that speak that language and live that culture. Section 23 aims to develop the French language, and therefore the French culture, and ultimately the minority francophone communities in each of the English-speaking provinces of Canada.

The restorative nature of Article 23

Article 23 is also intended to remedy, at the national level, the progressive erosion of minorities speaking one or the other official language and to apply the notion of equal partners of the two official linguistic groups in the field of Education (pp.3-4 of the summary)

The Court clearly states the restorative nature of section 23. Francophone minority communities have fallen prey to assimilation, largely because they have been forced to integrate into the English-language education system. Section 23 is therefore intended to repair the wrongs of the past by ensuring that Francophones are no longer treated as a minority, to whom some privileges are granted, but as an equal partner who enjoys a primary and secondary education in French of equivalent quality. to that of the English group.

The Court further stipulates that: –
the funds allocated to the minority language schools must be at least equivalent in proportion to the number of students, to the funds allocated to the majority schools. In special circumstances, minority language schools may be justified in receiving a higher amount, per pupil, than that paid to majority schools .- (pp.30-31 of the judgment)

Provincial responsibilities and obligations

Section 23 of the Canadian Charter of Rights and Freedoms is part of our country’s constitution. This means that it gives a stronger guarantee than if it were a provincial law that could be modified at the will of the political parties in power.

However, according to Canada’s constitution, education falls under the jurisdiction of the provinces. Only they can legislate in matters of education on their territory. It is therefore up to the provincial legislatures to amend their school legislation to bring it into line with the provisions of section 23, according to the particularities of each province.

Section 23 of the Charter imposes a positive obligation on provincial legislatures to enact specific statutory provisions to provide instruction in the language of the linguistic minority where numbers warrant. (p.45 of the judgment) 

Rights holders and the issue of numbers

On the thorny issue of where numbers warrant, the Court ruled as follows:

– … the relevant figure for the purposes of art. 23 is the number of people who will ultimately take advantage of the proposed program or institution (page 37 of the judgment)

This number is between a lower limit, which is the existing demand for Francophone services (as assessed by a survey or pre-registration) and an upper limit represented by the total number of students who may be eligible to apply. receive instruction in French.

It should be noted that section 23 designates several categories of children who are entitled to instruction in the minority language:

– at least one of whose parents is of French mother tongue;

-one of whom at least one parent has received primary instruction in French in Canada;

-one whose brother or sister receives or has received instruction in French.

Given the assimilation that ravages francophone communities across the country, and the high proportion of mixed marriages (between francophones and anglophones), children who are entitled to instruction in French do not necessarily speak French. This has important repercussions on the number of children who will attend French schools and on the measures to be taken to ensure the refrancisation of children, the recovery of potential effecfifs and academic and institutional catch-up.

Management and control of minority educational institutions

-… it is essential for this purpose that, in every case where numbers warrant, parents belonging to the linguistic minority have some measure of management and control over the educational institutions where their children live. instruct. This management and control is vital to ensure the development of their language and culture.

In addition, as indicated by the historical context in which art.23 was adopted, linguistic minorities can not always be certain that the majority will take into account all their linguistic and cultural concerns. (p.24 of the judgment)

The Court uses the (variable) method to determine the type and level of rights and services that are appropriate under section 23 for the number of students in question.

The maximum level of management and control is an independent school board.

When the number of children does not justify the creation of such a school board, however, it may be sufficient to justify proportional and guaranteed minority representation in a majority school board. Other degrees of management and control may be necessary in situations where the number does not warrant representation on an existing board.