Mahe, Martel, Dube and Association de l'Ecole Georges et Julia Bugnet v. Alberta, (1987) 80 A.R. 161 (CA)

• Judge: Moir, McClung and Kerans, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: August 26, 1987
• Citations: (1987), 80 A.R. 161 (CA)

Mahe v. Alta. (1987), 80 A.R. 161 (CA)

MLB headnote and full text

Jean Claude Mahe, Angeline Martel, Paul Dube and l'Association de l'Ecole Georges et Julia Bugnet (appellants) v. Her Majesty the Queen in Right of the Province of Alberta (respondent) and Alberta School Trustees Association, Société de Parents pour les Ecoles Francophones d'Edmonton, la Commission Nationale des Parents Francophone, la Federation des Francophones hors Québec, l'Association Canadienne-Francaise de l'Alberta, the Commissioner of Official Languages for Canada, the Attorney General of Canada, and Alliance Québec (intervenors)

(Appeal No. 19347)

Indexed As: Mahe, Martel, Dube and Association de l'Ecole Georges et Julia Bugnet v. Alberta

Alberta Court of Appeal

Moir, McClung and Kerans, JJ.A.

August 26, 1987.

Summary:

A number of Francophone parents brought an action against the province, alleging that their rights under ss. 15, 23 and 27 of the Canadian Charter of Rights and Freedoms were violated. The parents alleged that s. 23 of the Charter entitled them to require that their children receive primary and secondary school instruction in the French language in Francophone educational facilities to be paid for from public funds. The parents sought a declaration that in metropolitan Edmonton there were sufficient numbers of children qualified pursuant to s. 23 of the Charter to warrant, out of public funds, the provision of French minority language instruction, and a right to receive that instruction in French minority language facilities. The parents also sought a declaration that s. 23 of the Charter entitled them to be granted powers, rights and duties equivalent to those granted to parents of English speaking children. The parents also sought a declaration that the rights granted pursuant to s. 23 entitled them to be granted the right to have their children educated in facilities equivalent to those provided to English speaking children in Alberta. The parents also sought a declaration that ss. 13, 26, 158 and 159 of the Alberta School Act and regulation 490/82 under that Act were inconsistent with s. 23 of the Charter and therefore of no force and effect.

The Alberta Court of Queen's Bench, in a judgment reported 64 A.R. 35, allowed the parents' application in part. The court determined the minority language educational rights of Francophone children in metropolitan Edmonton. The parents appealed.

The Alberta Court of Appeal dismissed the appeal. The court held that s. 23(3)(a) confers upon each Albertan student or parent in the s. 23 group the constitutional right to effective instruction in French at the primary and secondary level out of public funds. That right is limited to what is warranted in terms of numbers and consequential costs and by s. 1 of the Charter. Section 23(3)(b) confers upon members of the s. 23 group the right to organize, manage and control an educational system for s. 23 students, but only where in a province that right is warranted by numbers and consequential costs. That right is also subject to s. 1. The court held that the numbers were sufficient to trigger s. 23(3)(a), but insufficient to trigger s. 23(3)(b). Neither s. 15 nor s. 23(3)(b) necessarily creates the right to a Francophone local school district; the choice of institutional form for implementation of s. 23 rights is, subject to judicial review, left to the province.

Civil Rights - Topic 2881

Language - Education - General - The Alberta Court of Appeal held that s. 23(3)(a) of the Charter confers upon each Albertan student or parent in the s. 23 minority group the constitutional right to effective instruction in French at the primary and secondary level out of public funds - That right is limited to what is warranted in terms of numbers and consequential costs and by s. 1 of the Charter - Section 23(3)(b) confers upon members of the s. 23 group the right to organize, manage and control an educational system for s. 23 students, but only where in a province that right is warranted by numbers and consequential costs - That right is also subject to s. 1 - The court held that 242 students did not justify a totally separate, minority language controlled school system in Edmonton.

Civil Rights - Topic 2881

Language - Education - General - Section 23(3)(a) of the Charter provided for "instruction" in French for the French minority in a province - The Alberta Court of Appeal held that minority language "instruction" meant the right to become sufficiently fluent in that language to participate fully in one or the other of the two language communities protected by s. 23 - "Instruction" required more than teaching the language as a subject; there must be "effective" instruction - See paragraphs 73 to 80.

Civil Rights - Topic 2888

Language - Education - Invalid provincial legislation - Members of a French minority under s. 23 of the Charter claimed that ss. 13, 29, 30, 52, 53, 134, 140, 141, 158, 159 and Part V of the School Act, R.S.A. 1980, c. S-3, and regulation 490/82 violated s. 23 of the Charter - The Alberta Court of Appeal held that the sections were not inconsistent with the Charter - The court stated that although Alberta law does not yet acknowledge s. 23, nothing about it explicitly contradicts the rights in that section - See paragraphs 115 to 123.

Civil Rights - Topic 2888

Language - Education - Invalid provincial legislation - Regulation 490/82 under the Alberta School Act was enacted to ensure that Francophone students received training in the use of the English language which would enable them to compete equally with others in an overwhelmingly English community - The Alberta Court of Appeal affirmed that the regulation did not violate minority language educational rights in s. 23 of the Charter and that any limitation on minority rights would be a reasonable limit prescribed by law under s. 1 of the Charter.

Civil Rights - Topic 5502

Equality and protection of the law - Whether right to equality abridged - Section 23(3)(a) of the Charter conferred upon each Albertan student or parent in the s. 23 minority group the constitutional right to effective instruction in French at the primary and secondary level out of public funds, limited by what is warranted in terms of numbers, consequential costs and by s. 1 of the Charter - Section 23(3)(b) conferred upon the s. 23 group the right to organize, manage and control an educational system for s. 23 students, subject to the same limitations as apply to s. 23(3)(a) - The Alberta Court of Appeal held that where the numbers (242 students) did not justify a separate, minority language controlled school system, equal to and separate from the public school system, there was no violation of equality rights under s. 15 of the Charter - See paragraphs 124 to 146.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - [See second Civil Rights - Topic 2888 above].

Civil Rights - Topic 8461

Canadian Charter of Rights and Freedoms - Interpretation - General - The Alberta Court of Appeal held that the Charter of Rights and Freedoms should receive a large and liberal construction - The court also stated that minority language rights in s. 23 of the Charter should be interpreted with reference to the fact that language rights were a political compromise - Therefore, language rights should be approached with more constraint than when construing legal rights - See paragraphs 63 to 66.

Cases Noticed:

Minority Language Educational Rights, Re (1984), 4 O.A.C. 321; 10 D.L.R.(4th) 431 (C.A.), consd. [para. 17].

Societe des Acadiens du Nouveau-Brunswick Inc. v. Minority Language School Board No. 50 (1986), 66 N.R. 173; 69 N.B.R.(2d) 271; 177 A.P.R. 271 (S.C.C.), consd. [para. 40].

Attorney General of Quebec v. Quebec Association of Protestant Schools (1984), 54 N.R. 196; 10 D.L.R.(4th) 321 (S.C.C.), refd to. [para. 60].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 C.C.C.(3d) 385; [1985] 3 W.W.R. 481; 18 D.L.R.(4th) 321, consd. [para. 63].

Tiny Separate School Trustees v. The King, [1928] 3 D.L.R. 753, refd to. [para. 65].

Reference Re Roman Catholic Separate High Schools Funding (1987), 75 N.R. 241 (S.C.C.), consd. [para. 67].

Marchand v. Simcoe County Board of Education (1986), 29 D.L.R.(4th) 596, refd to. [para. 78].

Black v. Law Society of Alberta, [1986] 3 W.W.R. 590; 68 A.R. 259; 44 Alta. L.R.(2d) 1 (C.A.), refd to. [para. 97].

Reference Re the Constitutional Validity of Section 17 of the Alberta Act, [1927] S.C.R. 364, refd to. [para. 101].

Schmidt v. Calgary Board of Education and Alberta Human Rights Commission (1976), 1 A.R. 286 (C.A.), refd to. [para. 101].

McLeod v. Salmon Arm (1951), 4 W.W.R.(N.S.) 385 (B.C.C.A.), refd to. [para. 108].

R. v. Oakes (1986), 65 N.R. 87; 14 O.A.C. 335; 24 C.C.C.(3d) 321; 26 D.L.R.(4th) 200 (S.C.C.), refd to. [para. 128].

Reference Re Roman Catholic Separate High Schools Funding (1986), 13 O.A.C. 241; 25 D.L.R.(4th) 1 (C.A.), refd to. [para. 129].

Rebic v. Collver Prov. J., [1986] 4 W.W.R. 401 (B.C.C.A.), refd to. [para. 129].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 118]; sect. 15 [para. 124]; sect. 23 [para. 6]; sect. 29 [para. 98].

School Act, R.S.A. 1980, c. S-3, sect. 13(1) [para. 47]; sect. 29, sect. 30, sect. 52, sect. 53, sect. 134, sect. 140, sect. 141 [para. 11]; sect. 158, sect. 159 [para. 50].

Alberta Act, 4-5 Edw. 7, c. 3, sect. 17(1), sect. 17(3) [para. 100].

Constitution Act, 1867, sect. 93 [para. 100].

School Act Regulations, reg. 490/82, sect. 1, sect. 2, sect. 3 [para. 51].

Alberta School Trustees' Association Act, R.S.A. 1980, c. A-37 [para. 41].

County Act, R.S.A. 1980, c. C-27 [para. 41].

Department of Education Act, R.S.A. 1980, c. D-17 [para. 41].

Education of Service Men's Children Act, R.S.A. 1980, c. E-1 [para. 41].

Local Authorities Election Act, S.A. 1983, c. L-27.5 [para. 41].

Municipal Government Act, R.S.A. 1980, c. M-26 [para. 41].

Municipal Taxation Act, R.S.A. 1980, c. M-31 [para. 41].

Northland School Division Act, S.A. 1983, c. N-10.1 [para. 41].

School Building Act, R.S.A. 1980, c. S-4 [para. 41].

Teaching Profession Act, R.S.A. 1980, c. T-3 [para. 41].

Cultural Heritage Act, S.A. 1984, c. 40 [para. 53].

Authors and Works Noticed:

Chalmers, J.W., Schools of the Foot hill Province (1967) [para. 44].

Canada, Royal Commission on Bilingualism and Biculturalism, Book II, p. 8 [para. 71].

Smith, Lynn, Righting the Balance, Part XI, "A New Paradigm for Equality Rights", p. 360 [para. 127].

Dworkin, Ronald, Taking Rights Seriously (1977) [para. 129].

Tarnolpolsky, Walter, Discrimination and the Law: including Equality Rights under the Charter (1985) [para. 129].

Gremin, Lawrence, The American Common School; An Historic Conception (1951), pp. 219 [para. 140]; 221 [para. 141].

Counsel:

G.B. Gawne and M. Simpson, for the appellants;

J. Major, Q.C., and B. Locke, for the respondent;

J.C. Anderson, for intervenor No. 1;

D.A. Lynass, for intervenor No. 2;

M. Bastarache, for intervenors Nos. 3, 4 and 5;

R.J. Buchan, for intervenor No. 6 (with S. Acker);

E.D.D. Tavender, Q.C., and K. Eidsvik, for intervenor No. 7;

M.T. Moreau, for intervenor No. 8.

This appeal was heard before Moir, McClung and Kerans, JJ.A., of the Alberta Court of Appeal.

On August 26, 1987, Kerans, J.A., delivered the following judgment for the Court of Appeal.