Mahe, Martel, Dubé and Association d'Ecole Georges et Julia Bugnet v. Alberta, (1990) 105 N.R. 321 (SCC)

• Judge: Dickson, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ.
• Court: Supreme Court (Canada)
• Case Date: March 15, 1990
• Jurisdiction: Canada (Federal)
• Citations: (1990), 105 N.R. 321 (SCC);1990 CanLII 133 (SCC);72 Alta LR (2d) 257;[1990] SCJ No 19 (QL);68 DLR (4th) 69;[1990] 3 WWR 97;105 NR 321;[1990] 1 SCR 342;46 CRR 193;106 AR 321;JE 90-475

Mahe v. Alta. (1990), 105 N.R. 321 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Jean Claude Mahe, Angeline Martel, Paul Dubé 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 Attorney General of Canada, Attorney General for Ontario, Attorney General of Quebec, Attorney for New Brunswick, Attorney General of Manitoba, Attorney General for Saskatchewan, Association canadienne-française de l'Alberta, Commissioner of Official Languages for Canada, Alliance Quebec, Alliance for Languages Communities in Quebec, l'Association canadienne-française de l'Ontario, l'Association française des Conseils scolaires de l'Ontario, l'Association des enseignantes et des enseignants franco-ontariens, Quebec Association of Protestant School Boards, Edmonton Roman Catholic Separate School District No. 7 and Alberta School Trustees' Association (intervenors)

(20590)

Indexed As: Mahe, Martel, Dubé and Association d'Ecole Georges et Julia Bugnet v. Alberta

Supreme Court of Canada

Dickson, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ.

March 15, 1990.

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 the 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, in a judgment reported 80 A.R. 161, dismissed the appeal. The court held that s. 23(3)(a) conferred 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 was limited to what was warranted in terms of numbers and consequential costs and by s. 1 of the Charter. Section 23(3)(b) conferred 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 was warranted by numbers and consequential costs. That right was 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 created the right to a Francophone local school district; the choice of institutional form for implementation of s. 23 rights was, subject to judicial review, left to the province. The parents appealed.

The Supreme Court of Canada allowed the appeal in part. The court stated that in order to comply with s. 23 minority language parents in Edmonton should be granted management and control over minority language instruction and facilities in Edmonton in accordance with certain principles (see paragraph 99). The court affirmed that the School Act provisions were not in consistent with s. 23, but that Regulation 490/82 prima facie infringed s. 23 and was not proved to be justified under s. 1. The court also held that the rights guaranteed under s. 23 were not affected by s. 93 of the Constitution Act, 1867, s. 29 of the Charter or s. 17 of the Alberta Act.

Civil Rights - Topic 2881

Language - Education - General - The Supreme Court of Canada stated that the purpose of s. 23 of the Charter of Rights and Freedoms was to preserve and promote Canada's two official languages, and their respective cultures, to ensure that each flourished in provinces where one of the languages was a minority - Section 23 was remedial, designed to remedy an existing problem by altering the status quo - Section 23 represented a political compromise and, accordingly, should be interpreted carefully, but not narrowly - See paragraphs 31 to 43.

Civil Rights - Topic 2884

Language - Education - Minority language education rights - General - [See Civil Rights - Topic 2881].

Civil Rights - Topic 2888

Language - Education - Invalid provincial legislation - Minority parents under s. 23 of the Charter of Rights and Freedoms claimed ss. 13(1), 158 and 159 of the School Act, R.S.A. 1980, c. S-3, violated s. 23 - The Alberta Court of Appeal held that although the challenged sections did not acknowledge s. 23, they were "permissive" and did not explicitly contradict rights in s. 23 - The Supreme Court of Canada declined to declare the sections invalid, because it declared the rights that must be given to minority parents under s. 23 and it was up to the province of Alberta to respond with appropriate legislation - See paragraphs 90 to 98.

Civil Rights - Topic 2888

Language - Education - Invalid provincial legislation - Regulation 490/82 under the Alberta School Act mandated that Francophone students receive a fixed amount of English language instruction - The Supreme Court of Canada held that Regulation 490/82 violated s. 23 of the Charter of Rights and Freedoms and was not proved to be a reasonable limit prescribed by law under s. 1 - The court stated that a certain amount of English language instruction was a reasonable limitation on s. 23, but the province failed to prove that the amount required by Regulation 490/82 was reasonable - See paragraphs 90 to 98.

Civil Rights - Topic 2890

Language - Education - Right of minority to manage and control its schools - The Supreme Court of Canada stated that s. 23(3)(b) of the Charter mandated that, where numbers warranted, minority language parents possessed a measure of management and control over the educational facilities in which their children were taught - The court stated that there may be cases where numbers warrant an independent Francophone school board, however, where numbers are small an independent board might frustrate the purpose of s. 23 - Management and control falling short of an independent board can be satisfied by guaranteeing, as a minimum, proportional representation of the minority on a shared school board and exclusive control over all aspects of minority education pertaining to linguistic and cultural concerns - See paragraphs 51 to 70.

Civil Rights - Topic 2890

Language - Education - Right of minority to manage and control its schools - Section 23(3)(b) of the Charter gave minority parents management and control over minority language education facilities where numbers warrant - The Supreme Court of Canada stated that the relevant figure was the number of persons who would eventually take advantage of the contemplated programme or facility - The numbers warrant pro vision required consideration of two factors in determining what s. 23 demanded: (1) the services appropriate, in pedagogical terms, for the number of students involved; and (2) the cost of the contemplated services - The court stated that s. 23(3)(b) involved more than just counting the number of students - See paragraphs 78 to 82.

Civil Rights - Topic 2890

Language - Education - Right of minority to manage and control its schools - The City of Edmonton had a Francophone separate school offering French language instruction to 242 students - The minority parents claimed s. 23(3)(b) of the Charter entitled them to have an independent Francophone school board - The Supreme Court of Canada agreed that numbers warranted creation of a minority language school, but held that the numbers were insufficient to warrant establishment of an independent school board - The court stated that the parents' s. 23 rights would be satisfied by proportional representation on the shared school board and exclusive control over all aspects of minority education pertaining to linguistic and cultural concerns - See paragraphs 83 to 89.

Civil Rights - Topic 2892

Language - Education - Denominational schools - Section 29 of the Charter provided that minority language education rights under s. 23 must not interfere with the rights and privileges of denominational schools - The Supreme Court of Canada stated that conferring upon minority language parents the right to manage and control their children's facilities did not infringe the rights of denominational schools under s. 29 - The court stated that the language of instruction was a nondenominational aspect of education - See paragraphs 71 to 77.

Civil Rights - Topic 8348

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

Civil Rights - Topic 8475

Canadian Charter of Rights and Freedoms - Interpretation - Regard to both official languages - The Supreme Court of Canada stated that where one version of the Charter was ambiguous, the courts should adopt the less ambiguous version - See paragraph 49.

Civil Rights - Topic 8482

Canadian Charter of Rights and Freedoms - Interpretation - Minority language education rights - The Supreme Court of Canada stated that in interpreting s. 23 of the Charter it was not helpful to refer to s. 15 or 27 of the Charter - The court also stated that although legislative debates were admissible in evidence, they were of minimal relevance - See paragraphs 45 to 46.

Civil Rights - Topic 8482

Canadian Charter of Rights and Freedoms - Interpretation - Minority language education rights - [See Civil Rights - Topic 2881].

Cases Noticed:

Minority Language Educational Rights, Re (1984), 4 O.A.C. 321; 10 D.L.R.(4th) 491 (C.A.), consd. [para. 14].

Chaussure Brown's Inc. et al. v. Québec (Procureur général), [1988] 2 S.C.R. 712; 90 N.R. 84; 19 Q.A.C. 69, refd to. [para. 32].

Quebec Asssociation 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. [para. 34].

Lavoie et al. v. Nova Scotia (Attorney General) and Board of Education of Cape Breton School District (1989), 91 N.S.R.(2d) 184; 233 A.P.R. 184 (C.A.), refd to. [para. 34].

Société des Acadiens du Nouveau-Brunswick Inc. et al. v. Minority Language School Board No. 50 et al., [1986] 1 S.C.R. 549; 66 N.R. 179; 69 N.B.R.(2d) 271; 177 A.P.R. 271, refd to. [para. 36].

Reference Re Roman Catholic Separate High Schools Funding, [1987] 1 S.C.R. 1148; 77 N.R. 241; 22 O.A.C. 321, refd to. [para. 37].

Commission des Ecoles Fransaskoises Inc. et al. v. Saskatchewan (1988), 64 Sask.R. 123; 48 D.L.R.(4th) 315 (Q.B.), refd to. [para. 44].

Reference Re Minority Language Educational Rights (P.E.I.) (1988), 69 Nfld. & P.E.I.R. 236; 211 A.P.R. 236 (C.A.), refd to. [para. 44].

Reference Re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266, refd to. [para. 46].

Protestant School Board of Greater Montreal v. Québec (Procureur général), [1989] 1 S.C.R. 377; 97 N.R. 143, refd to. [para. 73].

Brophy v. Attorney General of Manitoba, [1895] A.C. 202 (P.C.), refd to. [para. 75].

Ottawa Roman Catholic Separate Schools Trustees v. Mackell, [1917] A.C. 62 (P.C.), refd to. [para. 75].

Ottawa Roman Catholic Separate Schools Trustees v. Quebec Bank, [1920] A.C. 230 (P.C.), refd to. [para. 75].

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1, refd to. [para. 92].

Statutes Noticed:

Alberta Act, S.C. 1905, c. 3, sect. 17 [para. 71].

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 45]; sect. 23 [para. 1]; sect. 27 [para. 45]; sect. 29 [para. 71].

Constitution Act, 1867, sect. 93(1) [para. 71].

Constitution Act, 1982, sect. 52 [para. 11].

School Act, R.S.A. 1980, c. S-3, sect. 13(1), sect. 158, sect. 159 [para. 91].

School Act, S.A. 1988, c. S-3.1, sect. 4, sect. 5, sect. 6 [para. 92].

School Act Regulations, Regulation 490/82, sect. 1, sect. 2, sect. 3 [para. 91].

Societies Act, R.S.A. 1980, c. S-18, generally [para. 10].

Authors and Works Noticed:

Canada, Royal Commission on Bilingualism and Biculturalism (book 2, c. 10), paras. 425, 426, 437 [para. 56].

Counsel:

G. Brent Gawne and Mary T. Moreau, for the appellants;

J.C. Major and Barbara N. Locke, for the respondent;

E.D.D. Tavender, Q.C., K.M. Eidsvik and Thomas-Louis Fortin, for the Attorney General of Canada;

John Cavarzan, for the Attorney General for Ontario;

Jean-Yves Bernard and Luc Leblanc, for the Attorney General of Quebec;

Gabriel Bourgeois, for the Attorney General for New Brunswick;

Donna J. Miller and Deborah Carlson, for the Attorney General of Manitoba;

Robert G. Richards, for the Attorney General for Saskatchewan;

Michel Bastarache and Martine Richard, for Association canadienne-française de l'Alberta;

Robert J. Buchan, for the Commissioner of Official Languages for Canada;

Stephen A. Scott and Kathleen Weil, for Alliance Quebec, Alliance for Languages Communities in Quebec;

Paul S. Rouleau, for Association canadienne-française de l'Ontario, Association française des Conseils scolaires de l'Ontario, and Association des enseignantes et des enseignants franco-ontariens;

Colin K. Irving and Allan K. Hilton, for the Quebec Association of Protestant School Boards;

Judith C. Anderson, for the Edmonton Roman Catholic Separate School District No. 7, and for the Alberta School Trustees' Association;

Solicitors of Record:

G. Brent Gawne & Associates, Edmonton, Alberta, for the appellants;

Bennett, Jones, Calgary, Alberta, for the respondent;

Fenerty, Robertson, Fraser & Hatch, Calgary, Alberta;

Department of Justice, Ottawa, Ontario, for the intervenor, the Attorney General of Canada;

Ministry of the Attorney General, Toronto, Ontario, for the intervenor, the Attorney General for Ontario;

Bernard, Roy & Associés, Montréal, Québec, for the intervenor, the Attorney General of Quebec;

Office of the Attorney General, Fredericton, New Brunswick, for the intervenor, the Attorney General of New Brunswick;

Attorney General of Manitoba, Winnipeg, Manitoba, for the intervenor, the Attorney General of Manitoba;

Brian Barrington-Foote, Regina, Saskatchewan, for the intervenor, the Attorney General for Saskatchewan;

Lang, Michener, Lash, Johnston, Ottawa, Ontario, for the Association canadienne français de l'Alberta;

Johnson & Buchan, Ottawa, Ontario, for the intervenor, the Commissioner of Official Languages for Canada;

Stephen A. Scott, Montréal, Québec, for the intervenor, Alliance Quebec;

Genest Murray DesBrisay O'Donnell Murray, Toronto, Ontario, for the intervenors, the Association canadienne française de l'Ontario, the Association française des Conseils scolaires de l'Ontario and the Association des enseignantes et des enseignants franco-ontariens;

Colin K. Irving and Allan R. Hilton, Montréal, Québec, for the intervenor the Quebec Association of Protestant School Boards;

Judith C. Anderson, Edmonton, Alberta, for the intervenors, the Edmonton Roman Catholic Separate School District No. 7 and the Alberta School Trustees' Association.

This appeal was heard on June 14, 1989, before Dickson, C.J.C., Wilson, La Forest, L'Heureux-Dubé, Sopinka, Gonthier and Cory, JJ., of the Supreme Court of Canada.

On March 15, 1990, Dickson, C.J.C., delivered the following judgment for the Supreme Court of Canada in both official languages.