Commission des écoles fransaskoises Inc. et al. v. Saskatchewan, (1988) 64 Sask.R. 123 (QB)

• Judge: Wimmer, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 15, 1988
• Jurisdiction: Saskatchewan
• Citations: (1988), 64 Sask.R. 123 (QB)

Comm. écoles fransaskoises v. Sask. (1988), 64 Sask.R. 123 (QB)

MLB headnote and full text

Commission des écoles fransaskoises Inc., Association culturelle franco-canadienne de la Saskatchewan Inc., Federation des aines fransaskois Inc., College Mathieu Gravelbourg Sask., Jeffrey Staflund, by his litigation guardian, Doris Staflund, Nicole Poulin, Association des parents de l'école MGR de Laval Inc., Conseil de l'école catholique Francaise de Prince Albert Inc., Conseil de l'école canadienne-francaise de Saskatoon Inc., Conseil de l'école fransaskoise de Debden Inc., Comité de parents de Domremy Inc., Comité de parents de l'école fransaskoise de Gravelbourg Inc. (plaintiffs) v. Government of Saskatchewan (defendant)

(Q.B. No. 5495 1985 J.C.R.)

Indexed As: Commission des écoles fransaskoises Inc. et al. v. Saskatchewan

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Wimmer, J.

February 15, 1988.

Summary:

The plaintiffs applied for declarations, inter alia, that the legislative scheme established by the Education Act and the Regulations thereunder for the provision of school instruction in the language of the French linguistic minority was inconsistent with s. 23 of the Canadian Charter of Rights and Freedoms (the minority language educational provision).

The Saskatchewan Court of Queen's Bench granted the application in part. The court declared s. 180 of the Education Act and the Regulations thereunder to be inconsistent with s. 23 and of no force and effect to the extent that they failed to recognize the rights guaranteed by s. 23(3)(b) to include the right of the minority to manage and control educational facilities. The court declared s. 40(2)(b) of the Regulations to be of no force and effect insofar as territorial limitations on the jurisdiction of Boards of Education might operate to limit or deny the rights guaranteed by s. 23. The court declared that s. 40(4)(c) of the Regulations was also of no force and effect insofar as it established preconditions to the provision of school instruction in the French language where the number of children of eligible parents was sufficient to warrant the provision of such instruction. The court also held that none of these provisions could be saved by s. 1 of the Charter.

Civil Rights - Topic 2881

Language - Education - General - The Canadian Charter of Rights and Freedoms, s. 23, guaranteed certain minority language educational rights - The Saskatchewan Court of Queen's Bench referred briefly to the history of s. 23 - See paragraphs 5 to 9.

Civil Rights - Topic 2881

Language - Education - General - The Canadian Charter of Rights and Freedoms, s. 23, guaranteed certain minority language educational rights - The Saskatchewan Court of Queen's Bench stated that "however large the target of the section may have been in the minds of its designers, it was at least intended that, wherever feasible, children of English or French minorities should enjoy approximately the same educational rights as enjoyed by the majority" - See paragraph 8.

Civil Rights - Topic 2881

Language - Education - General - The Canadian Charter of Rights and Freedoms, s. 23, guaranteed certain minority language educational rights - The Saskatchewan Court of Queen's Bench stated that "s. 23 contemplates the possible existence of more than one mode of accommodating the rights therein guaranteed. That is, there may be a wide variety of legislative schemes which will satisfy the requirements of the section" - See paragraph 9.

Civil Rights - Topic 2881

Language - Education - General - The Saskatchewan Court of Queen's Bench held that the combined effect of s. 23 of the Charter and s. 93 of the Constitution Act, 1867, is to leave to the individual provinces the decision as to how minority language education can best be provided - See paragraph 33.

Civil Rights - Topic 2881

Language - Education - General - The Charter, s. 23, guaranteed certain minority language educational rights - The Saskatchewan Court of Queen's Bench stated that "where there is a sufficient number of children of eligible parents to warrant the provision of those rights guaranteed by s. 23(3)(a), but not a sufficient number to warrant the provision of all those guaranteed by s. 23(3)(b), then I think there can be no constitutional objection to a legislative scheme which permits unlimited access to designated schools, and permits designated programs to be offered in physical facilities shared with schools where English is the language of instruction. Of course, the converse would necessarily follow ..." - See paragraph 30.

Civil Rights - Topic 2881

Language - Education - General - The Charter, s. 23, guaranteed certain minority language educational rights - The Saskatchewan Court of Queen's Bench observed that "s. 23 does not suggest the existence of any particular degree of language capability as being requisite to the right of children of eligible parents to receive school instruction in that language. In fact, the opposite seems to be the case. ... It is quite possible that many children who are entitled, by reason of their parentage, to receive school instruction in the minority language will have no capability in that language at all. Yet, they cannot be excluded from access to minority language educational facilities for that reason. The right of access is constitutionally guaranteed. Thus, there would be a commixture of students with varying degrees of language competence even if designated schools were operated exclusively for the children of s. 23 parents" - See paragraph 28.

Civil Rights - Topic 2881

Language - Education - General - The Charter, s. 23, guaranteed certain minority language educational rights - The Saskatchewan Court of Queen's Bench observed that "to say that the goal of s. 23 is to achieve equivalence in education as between the minority and the majority is not to say that the goal will always be attainable in every detail. Financial feasibility dictates limits. The depth of the public purse is not infinite. It will not always be possible to duplicate entire educational systems with separate but equal schools equipped with equivalent gymnasia, laboratories and equipment, each to be operated and administered with a full compliment of qualified staff. S. 23 recognizes this by declaring that possibilities will be limited or expanded according to the number of children in the system" - See paragraph 29.

Civil Rights - Topic 2888

Language - Education - Invalid provincial legislation - The Saskatchewan Court of Queen's Bench held that the sections of Education Act and Regulations which provided for school instruction in the language of the French linguistic minority population were inconsistent with s. 23 of the Charter in the following respects: (1) the legislative scheme failed to recognize that the phrase "minority language educational facilities" in s. 23(3)(b) included the right of the minority to manage and control; (2) the resort to the existing network of Boards of Education to establish designated programs is consistent with s. 23 insofar as territorial limitations upon jurisdiction may operate to limit or deny s. 23 rights; and (3) the scheme was inconsistent insofar as it required the Minister of Education to be satisfied as to the existence of certain preconditions to the establishment of a designated program, even where the numbers of eligible children warrant such a program - The court held also that these violations of s. 23 could not be justified under s. 1 of the Charter.

Civil Rights - Topic 2890

Language - Education - Right of minority to control its schools - The Canadian Charter of Rights and Freedoms, s. 23, guaranteed certain minority language educational rights - An issue arose as to whether implicit in the language of s. 23 is the right of the minority group to manage and control the schools and programs in which its children are enroled - The Saskatchewan Court of Queen's Bench stated that "the answer appears to be a qualified yes" - See paragraph 22.

Civil Rights - Topic 2890

Language - Education - Right of minority to control its schools - The Saskatchewan Court of Queen's Bench stated that "where there is a sufficient number of children of eligible parents to warrant the provision of minority language instruction as guaranteed by s. 23(3)(a) [of the Charter], but not a sufficient number to warrant the provision of a separate facility as contemplated by s. 23(3)(b), there is no concurrent right of governance. In that situation the system of parents' advisory councils presently in place [in Saskatchewan] is compatible with the Charter. On the other hand, where the number of eligible children is sufficient to warrant the provision of a separate facility, then the system of parents' advisory councils does not meet the requirements of the Charter because the legislative scheme fails to recognize, in that event, the right of the minority group to manage and control" - See paragraph 25.

Civil Rights - Topic 5660.3

Equality and protection of the law - Language rights - Education - Francophone groups in Saskatchewan argued that their equality rights under s. 15(1) of the Charter were violated, because their children were not receiving the same educational services as available to English children - The Saskatchewan Court of Queen's Bench held that if the rights of the francophones were being violated, their remedy would flow from a breach of s. 23 of the Charter (the minority language educational rights provision), not s. 15(1) - See paragraph 45.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - The Saskatchewan Court of Queen's Bench held that the provisions of the Education Act (Sask.) and the Regulations thereunder which were inconsistent with s. 23 of the Charter (the minority language educational rights provisions) could not be saved by s. 1 of the Charter.

Civil Rights - Topic 8367

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - General - The Saskatchewan Court of Queen's Bench stated that "it is not for the judiciary, except by way of a reference under the Constitutional Questions Act, to pass upon the means by which such rights might be lawfully recognized" - See paragraph 3.

Constitutional Law - Topic 9622

Education - Language - [See fourth Civil Rights - Topic 2881 above].

Education - Topic 656

Authorities - School commissions or boards - Powers respecting courses and instruction - Language - [See Civil Rights - Topic 2888 above].

Education - Topic 746

Authorities - School commissions or boards - Powers respecting students - To fix student eligibility - [See fifth Civil Rights - Topic 2881 above].

Education - Topic 746

Authorities - School commissions or boards - Powers respecting students - To fix student eligibility - [See sixth Civil Rights - Topic 2881 above].

Cases Noticed:

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 3].

Quebec Association of Protestant School Boards et al. v. Attorney General of Quebec et al., [1984] 2 S.C.R. 66; 54 N.R. 196 refd to. [paras. 6, 47].

Quebec Association of Protestant School Boards et al. v. Attorney-General of Quebec et al. (No. 2) (1983), 140 D.L.R.(3d) 33, refd to. [para. 6].

Minority Language Educational Rights, Re (1984), 4 O.A.C. 321; 10 D.L.R.(4th) 491 (Ont. C.A.), consd. [paras. 6, 23, 24, 32, 34].

Mahe et al. v. Alberta, [1987] 6 W.W.R. 331; 80 A.R. 161 (C.A.), affirming 22 D.L.R.(4th) 24 (Alta. Q.B.), consd. [paras. 6, 20, 23, 24, 51].

Marchand v. Simcoe County Board of Education et al. (1986), 29 D.L.R.(4th) 596, (Ont. H.C.), refd to. [para. 6].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,023; 13 C.R.R. 64, refd to. [para. 19].

Societé des Acadiens du Nouveau-Brunswick Inc. et al. v. Minority Language School Board No. 50 et al., [1986] 1 S.C.R. 549; 69 N.B.R.(2d) 271; 177 A.P.R. 271, refd to. [para. 19].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321, appld. [para. 47].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks.

R. v. Videoflicks, [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1, appld. [para. 47].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 1 [paras. 47, 48]; sect. 15 [paras. 5, 45]; sect. 23 [para. 1 et seq.]; sect. 52 [para. 46].

Constitution Act, 1867, sect. 93 [paras. 9, 33].

Education Act, R.S.S. 1978 (Supp.), c. E-0.1 [para. 10 et seq.].

Education Act Regulations (Sask.), sect. 38(1) [para. 11]; sect. 40(2) [para. 39]; sect. 40(4) [para. 40].

Authors and Works Noticed:

Magnet, J.E., Minority Language Educational Rights (1982), 4 Supreme Court L. Rev. 195, generally [paras. 6, 7], pp. 209, 210 [para. 23].

Foucher, Pierre, Language Rights and Education, in Language Rights in Canada, Michel Bastarache, Ed. (1987), p. 255 [para. 6].

Counsel:

R.J.F. Lepage, for the plaintiffs;

G.L. Gerrand, Q.C., R.G. Richards, and K. Tyler, for the defendant.

This application was heard before Wimmer, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on February 15, 1988.