Section 23 enshrines in our constitution the right of children of Canadian citizens to study French. Depending on the circumstances, this may be by attending a Francophone school or a French immersion program.
Section 23(1) generally protects the right of francophones to study in French language schools in primarily English-speaking provinces.
Section 23(2) states:
(2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have all their children receive primary and secondary school instruction in the same language.
Significantly, unlike most rights under the Charter, s. 23 imposes positive duties to act.
To date, court decisions have primarily focused on section 23(1). As a result of these cases, provincial education legislation now specifically provides for francophone schools.
But parents seeking access to francophone schools are not the only ones experiencing hurdles. Parents who wish for their children to study through French immersion programs also experience hurdles.
In a long string of cases over 30 years, beginning with Mahe v. Alberta, the Supreme Court of Canada has consistently upheld section 23 rights.
Last year, the Supreme Court of Canada released its decision in Conseil scolaire francophone de la Colombie-Britannique v. British Columbia. Charter damages of $7 million was awarded against the province of B.C. for not adequately funding transportation to French language schools.
Other cases supportive of section 23 rights include Solski (Tutor of) v. Quebec (Attorney General), Nguyen v. Quebec (Education, Recreation and Sports), Arsenault-Cameron v. Prince Edward Island, Doucet-Boudreau v. Nova Scotia (Minister of Education) and Association des parents de l’école Rose‑des‑vents v. British Columbia (Education).
Cases such as these may be helpful to parents anywhere in Canada who wish to challenge lack of access to French immersion programs under section 23(2) of the Charter.
It is heartening to see Central Okanagan School District 23 (SD 23) abandon its decades-long position that French immersion is an inferior “program of choice.”
Previously, SD 23 had no French immersion catchments. Instead, students in the French immersion program were governed by English catchments.
This created various problems for parents and students seeking to access French immersion.
Finally, French immersion catchments have recently been created.
But Kelowna Secondary School (KSS), the high school which offers French immersion, is currently overcrowded.
To address this overcrowding, SD 23 trustees seek to “enforce” the newly established Okanagan Mission Secondary (OKM) French immersion catchment boundaries.
This means that students leaving KLO middle school may be separated from their peers. Instead of proceeding to high school at KSS with their classmates, they may be forced to attend OKM, beginning in in 2022 – 2023.
Rather then adding portables to West side schools, West side students may be bused long distances to KSS and displace those from the lower mission.
Parents and students are expressing concern that their children will be split from their classmates upon reaching Grade 10.
Parents are also expressing concern that SD 23 is prioritizing international students over local students.
Trustee Geistlinger stated that more effort should be made to exhaust all possible options to reduce the student enrollment burden at KSS.
She is right.
Disrupting the education of Canadian students, while allowing 65 international students to remain in place, may well be heading for trouble.
In Solski, the Supreme Court of Canada stated, in the context of s. 23(2), that children
are entitled to a continuous learning experience and should not be uprooted…. Uprooting would not be in the interest of …the child.
Studying French immersion ought not to be more disruptive to a child’s education than studying English.
Canadian citizens have a constitutional right to study French immersion and should not be uprooted.
International students have no such right.
An alleged lack of funds does not justify failing to prioritize section 23 rights.
Just last year, the Chief Justice of the Supreme Court of Canada, in Conseil, addressed this very issue:
The mission of a government is to manage a limited budget in order to address needs that are, for their part, unlimited. This is not a pressing and substantial objective that can justify an infringement of rights and freedoms.
Preserving the revenue generated from international students’ fees is not a valid reason to prioritize them over local students.
In any event, moving the international students to OKM would free up spaces to alleviate having to uproot local students. It is not yet clear if SD23 is considering this.
Parents can hope that Canadians will be permitted to complete their education with their peers. The school district has its work cut out for it to sort this out in a way that prioritizes the best interests of local students.
This is a modified version of an article appearing in or around March 17, 2021 in online publications including the Kelowna Capital News. The content of this article is intended to provide very general thoughts and general information, not to provide legal advice. Advice from an experienced legal professional should be sought about your specific circumstances. We may be reached through our website at inspirelaw.ca.