In ChubbsFootnote 1, the Supreme Court of the Province of Newfoundland and Labrador considered the question of whether the province had performed its obligation to provide minority language education for children of rights holders on the south shore of Labrador when it concluded an agreement with Quebec for such children to be educated in a French language school located in Quebec.
The parents of 19 children in the L’Anse-au-Clair region on the south shore of Labrador were identified (by an expert report filed in the Court and accepted by the latter) as rights holdersFootnote 2 under section 23 of the Canadian Charter of Rights and Freedoms (The Charter). Based on this information, a recommendation was submitted to the provincial government for a French language education program to be established in the area. The province recognized there were enough children to justify a right to French language education, but it considered that the number of children did notwarrant the creation of a separate school. It therefore chose to conclude an agreement with the province of Quebec for such children to be educated at the expense of the Province of Newfoundland and Labrador in a French school at Lourdes-de-Blanc-Sablon in Quebec,a border municipality located some eight kilometres away from L’Anse-au-Clair.
The parents who were rights holders challenged this decision in the Provincial Court because the French language education was offered outside the province, whereas under the wording of subsection 23(3) of the Charter the education should be provided "
in the province." Additionally, the agreement with the province of Quebec was not an acceptable means of meeting the constitutional requirements imposed by section 23 of the Charter, since the parents had no real means to manage education provided in another province. In particular, that education could not, for example, include a special curriculum taking into account the social and historical uniqueness of the province of Newfoundland and Labrador. Finally, either province could terminate the agreement at any time.
At the hearing, the Province of Newfoundland and Labrador argued that by making such an agreement and providing French language education for children in a Francophone community at its expense, it was meeting its constitutional obligations.
The Court accepted the expert evidence submitted by the province and concluded that the means chosen by the province to provide French language education for children of rights holders in this particular case met the constitutional obligations and was consistent with the purpose of section 23 of the Charter. First, it noted that section 23 of the Charter provided for a right to education with a "
sliding scale approach," and that what was required in each case depended on what the "
number warrants". It went on to add that what is required depends primarily on pedagogical and financial factors, but cultural and linguistic interests must be given still greater attention.
Requirements for accommodating a few children
Relying on the facts in evidence and the admission by the province itself, the Court first recognized that the number of children of rights holders justified the provision of French language education. Owing to the small number of children in the area, however, the Court went on to say that the rights holders could at best hope for the hiring of two teachers and the creation of two multi-grade classes. It recalled the fear expressed by the Supreme Court in MaheFootnote 3 that the establishment of schools for isolated minorities could contravene the purpose of section 23 of the Charter by making the few number of children involved more vulnerable to assimilation.
The Provincial Court indicated that this reasoning could also be applied if a program provided only the minimum required to educate a small number of isolated children. The Court also took into account the position expressed by parents in their affidavit, namely that if they could obtain no guarantee that their children would receive French education of a quality comparable to that offered in English in the region, they would prefer to accept the agreement concluded with the school located at Lourdes-de-Blanc-Sablon.
The Court, therefore, considered that under the circumstances, the agreement was the means chosen by the province to provide the maximum protection conferred by section 23 of the Charter, offering a high level of French language education to children of rights holders and complying with the purpose of section 23 of the Charter, which was to provide protection for and fostering of the minority language and culture. It thus considered that, given the proximity of the school, the province had offered the children immersion in an entirely Francophone environment without creating hardships or entailing travel costs.
Whether minority language education should take into account particular cultural and linguistic aspects of province
The Court found that no evidence had been submitted to suggest that sending the children to Quebec for their education would affect their culture and language. Instead, it accepted the conclusions of the report by the province’s expert witness, which considered that in its content and purpose the Francophone culture of the south shore of Labrador was essentially the same as that of their Francophone neighbours in Quebec. It acknowledged, though, that from a cultural standpoint the children of L’Anse-au-Clair beneficiaries remained Newfoundlanders and Labradoreans, not Quebeckers.
The Court accordingly concluded that the possible negative effects were only speculation and said it was satisfied that such travel would have no distorting effect on the specific historical and socio-political uniqueness of the province of Newfoundland and Labrador, as the influence of the Quebec educational system would be offset by the fact that the students would return home each day to their families and local communitiesFootnote 4.
Whether minority language education should be given in province of minority
With respect to the argument that the actual wording of subsection 23(3) of the Charter, which uses the phrase "
in the province", does not provide for education in another province, the Court noted that the purpose of section 23 in this particular case was to protect and promote the Francophone language and culture in the Province of Newfoundland and Labrador, and specifically in the south shore of Labrador. The Court pointed out that a broad interpretation should be given to section 23 and not to hesitate to breathe life into it. Noting that the means chosen by the province in the particular case at bar was a novel way of protecting and promoting French in the best way possible in this area and was consistent with the purpose of section 23 of the Charter, the Court took care to point out, however, that the circumstances of the case were unique.
Finally, the Court held that the solution suggested by the province was nevertheless contrary to the Schools Act, 1997. That Act gives the province’s Francophone school board exclusive responsibility for managing the Francophone schools in Newfoundland and Labrador. The Court, therefore, concluded that it was necessary for the Board to be responsible for the administration of any agreement made on this matter between the Province of Newfoundland and Labrador and the Province of Quebec. It noted that the Board had at no time been a party to the agreement and concluded that the exclusion of the Board from its administrative role in the case at bar was contrary to the Schools Act.
The Court further considered that section 97 of that Act authorized the Board to conclude agreements directly with other boards or educational organizations in Canada, but it had not done so in the case at bar. Further, the Court concluded that the use of such agreements was consistent with provincial legislation, but any French language education program for the minority had to be administered by the Francophone school board. It noted that the management or control of minority education was an essential aspect of the right to education and it was not inconceivable that such a degree of control could be provided by an agreement. It observed that it was not for the Court to determine the nature of the relationship between the province and the Board. Nevertheless, it was essential for the province and the Board to develop an administrative protocol to guarantee respect for the management rights conferred by section 23 of the Charter when children of rights holders receive education outside their province.
- Footnote 1
Chubbs et al. v Newfoundland and Labrador, 2004 NLSCTD 89. Newfoundland and Labrador Supreme Court – Trial Division (May 16, 2004).
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- Footnote 2
We must remember that "
rights holders" are the beneficiaries of rights recognized in section 23 of the Charter, that is, "
parents," Canadian citizens, whose children are entitled to receive their primary and secondary education in the minority official language. These are parents whose first language learned and still understood is that of the English or French minority of the province in which they reside (section 23(1)(a)) or parents who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority of the province (section 23(1)(b)) or parents of whom any child has received or is receiving primary or secondary school instruction in English or in French (section 23(2)).
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- Footnote 3
Mahe v Alberta,  1 S.C.R. 342.
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- Footnote 4
Chubbs et al. v Newfoundland and Labrador, 2004 NLSCTD 89. Newfoundland and Labrador Supreme Court – Trial Division (May 16, 2004) at para. 49-50.
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