Conseil scolaire francophone de la Colombie-Britannique v. British Columbia

2020 SCC 13 | Supreme Court of Canada | June 12, 2020

Appeal Heard: September 26, 2019 | Docket: 38332

Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Côté, Brown, Rowe, Martin and Kasirer JJ.

Reasons for Judgment (paras. 1–187): Wagner C.J. (Abella, Moldaver, Karakatsanis, Côté, Martin and Kasirer JJ. concurring)

Joint Reasons Dissenting in Part (paras. 188–348): Brown and Rowe JJ.

I. Overview

[ 1 ] A school is much more than just a place to pass on theoretical and practical knowledge. It is also a setting for socialization where students can converse with one another and develop their potential in their own language and, in using it, familiarize themselves with their culture. That is the spirit in which the right to receive instruction in one of Canada's official languages was elevated to constitutional status by means of s. 23 of the Canadian Charter of Rights and Freedoms (" Charter ") .

[ 2 ] This appeal concerns the scope of s. 23 and the interplay between that section and s. 1 , as well as between it and the remedial provisions of Canada's Constitution. The appeal affords an opportunity to identify the approach to be taken in order to determine the level of services that is guaranteed to rights holder parents on the basis of a given number of students, consider the test to be applied in order to determine whether the educational experience of the children of those rights holders is equivalent to the experience provided to the majority, discuss the justification under s. 1 of infringements of language rights, and decide whether damages can be awarded as a remedy in the event of an infringement.

[ 3 ] The courts below adopted an inordinately narrow interpretation of s. 23 of the Charter and its role in the Canadian constitutional order. Section 23 has a remedial purpose related to promoting the development of official language minority communities and changing the status quo. In accordance with an interpretation of that section that takes its remedial purpose fully into account, and in light of the trial judge's findings of fact, the appeal should be allowed in part.

II. Background

A. Principles to Be Applied in Interpreting Section 23

[ 5 ] It is impossible to separate the history of Canada from the history of its official languages. Language and culture are two inseparable concepts that are inextricably linked to the Canadian identity. Linguistic and cultural vitality are tied together. The right to minority language education occupies an essential place in Canada's constitutional order.

[ 6 ] Section 23 of the Charter reads as follows:

23. (1) Citizens of Canada (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or (b) 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 population of the province, have the right to have their children receive primary and secondary school instruction in that language in that province.

(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.

(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the minority language of a province (a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and (b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

[ 7 ] Section 23 was included in the Charter for the purpose of preserving and promoting the two official languages of Canada by protecting the rights of official language minority communities to have their children educated in their own language. Section 23 must be interpreted in a manner consistent with the preservation and development of official language minority communities.

[ 8 ] Section 23 has an individual dimension and a collective dimension. On the individual level, s. 23 guarantees rights to children of rights holders. On the collective level, s. 23 aims at the socialization of children of rights holders within the community of their language, thereby supporting the development of a collective sense of cultural identity.

[ 9 ] Sections 16 to 20 of the Charter , which protect the right to use French or English in dealings with the central government, have an important relationship with s. 23. They reinforce the idea that language rights must in general be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.

[ 10 ] The purpose of s. 23 is not only to prevent further erosion of official language minority communities, but also to encourage the development of those communities.

[ 11 ] The historical context is also relevant to an understanding of s. 23. Francophone communities had experienced assimilation. The francophones of western Canada were particularly hard hit and, by the 1970s, they had suffered significant losses. The Court has acknowledged that the language rights guaranteed in ss. 16 to 23 of the Charter were enacted in response to a history of injustice.

[ 12 ] In Mahe v. Alberta , [1990] 1 S.C.R. 342 (at p. 362), Dickson C.J. wrote that the purpose of s. 23 must be kept in mind throughout the analysis:

The general purpose of s. 23 is clear: it is to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language community has control over the instruction of its own language and culture in an environment which is separate from the majority.

[ 13 ] Section 23 must be interpreted with a view to its remedial character. Subsection 23(1) confers the right to receive instruction in the language of the official language minority of the province. Subsection 23(3) provides that this right applies where numbers warrant. In this sense, s. 23 has been characterized as imposing positive obligations on governments.

[ 14 ] Section 23 of the Charter is also distinctive in that it creates a positive right, not merely a right to be free from government interference. For a positive right that requires expenditure of public funds to be effective, s. 23 necessarily imposes an active duty on government to take steps to implement the right.

[ 15 ] The objective of s. 23 is threefold: it is at once preventative — it seeks to prevent assimilation by providing official language minorities with access to education in their own language; remedial — it seeks to redress past injustices suffered by official language minorities; and unifying — it seeks to enhance official language minorities' participation in the economic, social, and cultural life of Canada.

[ 16 ] Section 23 must accordingly be given a broad, liberal, and purposive interpretation. Because s. 23 has a remedial component, the purposes and values it seeks to advance must be kept firmly in mind throughout the analysis.

[ 17 ] Language rights are the result of a political compromise. Courts must be sensitive to this fact when adjudicating language rights cases.

[ 18 ] The fact that the Charter does not subject s. 23 to the notwithstanding clause in s. 33 is another indication of the central importance of s. 23 in Canada's constitutional order. Section 33 allows legislatures to override certain rights. The fact that the framers of the Charter chose not to include s. 23 in the list of rights subject to the notwithstanding clause reflects the high importance they attached to official language minority education rights.

[ 19 ] Because language rights are part of a broader constitutional framework that reflects fundamental Canadian values, it is important that those rights be interpreted and applied in a manner consistent with the Constitution as a whole. Minority rights are one of the fundamental principles underlying the Canadian constitutional order. Protection of minorities is a core value animating our democracy.

[ 20 ] The history of s. 23 litigation in Canada demonstrates that the rights afforded by s. 23 are of the utmost importance, and that long and complex litigation can result from attempts to enforce those rights. This underscores the need for clear principles to guide the analysis.

B. Overview of Concepts Specific to Section 23: Sliding Scale and Substantive Equivalence

[ 21 ] The level of services to which official language minorities are entitled under s. 23 is not fixed; rather, it slides along a scale depending on the number of children of rights holders. The Court confirmed the existence of this sliding scale of entitlement in Mahe . The sliding scale allows for a progressive increase in the right commensurate with the number of minority language students in a given area.

[ 22 ] The range of entitlement varies from merely receiving instruction in the minority language at one end of the scale to the right to have children receive that instruction in minority language educational facilities at the other end. The highest level of service is a minority language school that is homogeneous, that is, a separate facility under the control of the official language minority.

[ 23 ] To qualify for services at the upper end of the sliding scale, the official language minority must demonstrate that the numbers of children of rights holders are sufficient to warrant the provision of instruction in minority language educational facilities out of public funds. This is the "numbers warrant" requirement.

[ 24 ] The concept of substantive equivalence is the standard used to determine whether the quality of the educational experience provided to the children of rights holders is adequate under s. 23. Substantive equivalence means that the educational experience of the children of rights holders must be substantively equivalent to the experience of the majority, regardless of the number of students at issue. This standard is consistent with the remedial purpose of s. 23.

[ 25 ] In Association des parents de l'école Rose-des-vents v. British Columbia (Education) , 2015 SCC 21 , [2015] 2 S.C.R. 139, the Court established an approach for assessing whether a school offers an educational experience that is substantively equivalent to that of the majority. The Court explained that this assessment must be global and holistic.

[ 26 ] The concept of substantive equivalence was discussed by the Court in Rose-des-vents in the context of a school that was not comparable in size to nearby majority language schools. The Court held that the assessment of the educational experience of the children of rights holders must take into account the perspective of a reasonable rights holder parent who would be deterred from sending their children to a school of the official language minority by a meaningfully inferior educational experience.

C. The Appellants and Their Claim

[ 27 ] The Conseil scolaire francophone de la Colombie-Britannique ("CSF") is the sole French-language school board in British Columbia. Its territory covers the entire province, and it has 37 schools.

[ 28 ] In June 2010, the CSF, the Fédération des parents francophones de Colombie-Britannique and three parents who are rights holders under s. 23 of the Charter ("linguistic minority representatives") filed a notice of civil claim against the province, submitting that several aspects of the funding of the education system penalized the official language minority and infringed its rights under s. 23 of the Charter . The alleged infringements can be divided into two categories: the first involved systemic claims (among other things, the fact that the CSF had not received an annual grant for building maintenance, the formula used to set priorities for capital projects, a lack of funding for school transportation and a lack of space for cultural activities), and the second involved claims for the purpose of obtaining new schools or improvements to existing schools in 17 communities.

[ 29 ] The linguistic minority representatives sought several declarations, Charter damages, and special costs.

III. Judicial History

A. British Columbia Supreme Court, 2016 BCSC 1764

[ 30 ] The trial lasted 238 days (spanning approximately three years) and produced one of the longest trial decisions in Canadian history. The trial judge heard from over 40 lay witnesses and 13 experts. She was presented with over 1,600 exhibits and over one thousand pages of written argument.

[ 31 ] The trial judge set out an approach to be taken in order to situate the number of students in a given community on the sliding scale, which serves to determine the level of services to which an official language minority is entitled and is used to decide whether the minority is entitled to a homogeneous school, to educational facilities shared with the majority or to another appropriate solution. Applying her analytical framework, the trial judge issued declarations concerning the right to educational facilities in several communities.

[ 32 ] She then outlined the test that is to be applied in determining the quality of the educational experience that must be provided to official language minorities. She concluded with respect to several communities that the children of rights holders are entitled to facilities that provide them with an educational experience that is substantively equivalent to the experience of the majority, but she found with respect to other communities that the numbers of children of rights holders warranted not a substantively equivalent educational experience, but one that is proportionately equivalent to the educational experience provided to the majority.

[ 33 ] Discussing the principles of interpretation that must inform the analysis of infringements of s. 23 under s. 1 of the Charter , the trial judge then concluded that several infringements of the rights holders' language rights were justified under s. 1 .

[ 34 ] Finally, she concluded that awarding damages would not be appropriate for most of the claims of the linguistic minority representatives, but she found that the freeze on funding for school transportation at a time when the number of students of the linguistic minority was rising constituted an infringement of s. 23, and she awarded $6 million in damages to the CSF. On the other hand, the trial judge declined to award damages to the CSF in compensation for its having been denied the Annual Facilities Grant Rural Factor.

B. British Columbia Court of Appeal, 2018 BCCA 305, 14 B.C.L.R. (6th) 52

[ 48 ] The linguistic minority representatives appealed the trial judge's judgment, arguing that she had made several errors of law in analyzing the alleged infringements of s. 23 of the Charter , including in the approach she had taken in order to situate a given number of students on the sliding scale and in the test she had applied in order to assess the quality of the educational experience provided to official language minorities; in reviewing the justification of the infringements under s. 1 ; and in granting the remedies being sought. The Court of Appeal dismissed the appeal but allowed the province's cross appeal and set aside the award of damages for inadequate funding of school transportation.

IV. Issues

[ 50 ] This appeal raises the following issues:

1. What is the approach to take in order to situate a given number of students on the sliding scale?
2. Does the test used to assess the quality of instruction provided to official language minorities vary with the number of minority language students?
3. Does compelling a school board to prioritize its capital projects infringe s. 23?
4. How is an infringement of s. 23 assessed under s. 1?
5. Does the limited government immunity from damages awards apply to decisions made in accordance with government policies that are found to be contrary to s. 23?

V. Analysis

A. What Is the Approach to Take in Order to Situate a Given Number of Students on the Sliding Scale?

[ 51 ] In Mahe v. Alberta , the Court explained that situating a given number of students on the sliding scale requires that the analysis focus on (1) the services appropriate, in pedagogical terms, for the number of students involved; and (2) the cost of the contemplated services. However, the Court did not provide an exhaustive definition of these two factors. The approach to be taken in order to situate a given number of students on the sliding scale must therefore be clarified.

[ 52 ] The analysis of the first factor, pedagogical needs, is concerned with whether, in light of the number of students at issue, the level of services proposed by the minority will make it possible to meet all curriculum requirements, that is, those related to the knowledge and skills the students must acquire while in school. The second factor in the analysis, cost, is less important than the first. It comprises the cost of building a new school or launching a program, and the associated operating costs. As a general rule, pedagogical considerations and cost considerations are interlinked and can be assessed simultaneously.

[ 53 ] Section 23 establishes a minimum threshold, the "numbers warrant" requirement, but it is not a cap on entitlement. Once the threshold is crossed, the level of services must be commensurate with the number of students.

[ 54 ] The approach to be taken in order to situate a given number of students on the sliding scale is based on the premise that a homogeneous school, that is, a separate facility under the control of the official language minority, is warranted where such a school is available to a comparable number of majority language students.

[ 55 ] The approach must take into account the long-term projections for the number of students who will eventually avail themselves of the contemplated service.

[ 56 ] It is important to note that the analytical framework I am proposing is intended to give clearer guidance to the courts below with a view to reducing the costs and length of litigation.

[ 57 ] The following three steps summarize the approach to be used in order to situate a given number of students on the sliding scale.

(1) First Step: Establishing the Number of Students in Question

[ 58 ] The first step is to determine how many students will eventually avail themselves of the contemplated service on the basis of long-term projections. That number lies between the known demand and the total number of children of s. 23 rights holders. The burden of proof is on the claimants from the official language minority.

[ 59 ] The known demand is the number of students who have applied for or are currently enrolled in the program or facility being considered. The total number of children of s. 23 rights holders is the number of children who potentially could take advantage of the program or facility.

[ 60 ] The number of students on which the s. 23 analysis will be based must be established by the claimants from the official language minority. In practice, this number will be the court's best estimate of the number of students who will eventually avail themselves of the contemplated service.

(2) Second Step: Taking a Comparative Approach in Order to Determine Whether the School Contemplated by the Minority Is Appropriate from the Standpoint of Pedagogy and Cost

[ 61 ] At the second step, the court must take a comparative approach in order to determine whether the school contemplated by the minority is appropriate from the standpoint of pedagogy and cost. The approach is intended for the determination of whether the number of students in question from the official language minority is comparable to the numbers of students in the majority language schools. The burden is on the claimants from the official language minority to identify comparator schools.

[ 62 ] It is necessary to be flexible in determining what constitutes a comparable number. Comparable does not mean identical.

[ 63 ] If the court finds that the number of minority language students is comparable to the numbers of students in local majority language schools, there is no doubt that the number of minority language students falls at the high end of the sliding scale and that the minority is entitled to a homogeneous school. In other cases, a province-wide comparative exercise is required to ensure fair treatment across the province.

[ 64 ] The existence of majority language schools that serve a given number of students, regardless of where they are located in the province, supports a presumption that the province considers maintaining those schools to be appropriate from the standpoint of pedagogy and cost, and thus that it is appropriate to create a comparably sized homogeneous school for the minority. The province can rebut this presumption by showing on a balance of probabilities either that the majority language schools used as comparators are not appropriate for that purpose or that the school proposed by the minority is not appropriate from the standpoint of pedagogy or cost.

[ 65 ] In my view, situating a number of students on the sliding scale requires a province-wide comparative analysis. In Canada, laws relating to education are made at the provincial level as a result of s. 93 of the Constitution Act, 1867 . [1] Section 23(3) ( a ) reflects this fact, as it provides that the constitutional right it creates "applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction". This is a first indication that a province-wide comparison is required.

[ 66 ] In this Court, the Province maintained that a province-wide comparison would not be appropriate, because small rural schools are not valid comparators. It argued that such rural schools exist because of the geographical isolation of the students in question. I find that this does not justify systematically removing rural schools from the equation. The cultural isolation of the minority groups to which s. 23 applies is a circumstance that, although different in some respects, resembles, from a sociolinguistic standpoint, the geographical remoteness of certain majority language communities.

(3) Third Step: Determining the Level of Services That Must Be Provided

[ 84 ] At the third step, the level of services to be provided to the official language minority must be determined. If the court has found at the second step that the number of students is comparable and that the presumption has not been rebutted, that number is at the high end of the sliding scale and the minority is therefore entitled to have its children receive instruction in a homogeneous school.

[ 85 ] If the result of the province-wide comparison is that there is no comparable number, the number of minority language students falls below the high end of the sliding scale, that is, at the low end or in the middle. A minority at the lower levels of the scale can qualify for a range of services varying from a few hours of classes in its language to the use and control of premises in a school shared with the majority. In such a situation, the court must show deference to the level of services proposed by the minority language school board in determining whether that level of services is appropriate from the standpoint of pedagogy and cost.

(4) Summary of the Applicable Approach

[ 90 ] The following is a summary of the approach to be used in order to situate a given number of students on the sliding scale.

[ 91 ] First, the court must determine the number of students who will eventually avail themselves of the contemplated service based on long-term projections.

[ 92 ] Second, the court must compare the long-term projection with the numbers of students in local majority language schools. If there is a comparable local school, the minority is entitled to a homogeneous school. If there is no comparable local school, a province-wide comparison is required. The existence of majority language schools that serve a given number of students elsewhere in the province creates a presumption that the province considers maintaining those schools to be appropriate from the standpoint of pedagogy and cost.

[ 93 ] Third, if the presumption is not rebutted, the minority is entitled to a homogeneous school. If the presumption is rebutted, or if no comparable majority language school exists in the province, the level of services warranted for the number of students must be determined.

(5) Application of the Principles With Respect to the Sliding Scale

[ 94 ] When this approach is applied in this case to the claims of the linguistic minority representatives for new schools or for the expansion of existing schools, they are entitled to eight homogeneous schools that were denied by the courts below. The schools in question are warranted by the numbers of minority language students in the communities in question.

[ 95 ] The trial judge found that the number of minority language students in the communities of Abbotsford (elementary component for children of rights holders in the community of Abbotsford and secondary component for children of rights holders in the communities of the Central Fraser Valley), Burnaby, Northeast Vancouver, East Victoria and West Victoria will in the long term warrant the creation of homogeneous schools. Given that the long-term projections are the relevant numbers, these communities are therefore entitled to homogeneous schools.

[ 96 ] For the communities of North Victoria, Whistler, Chilliwack and Pemberton, the trial judge decided on a local basis for comparison even though the comparison must take schools located across the province into account. The appropriate comparative approach requires that the number of students who will eventually avail themselves of the service — 98 for North Victoria, 85 for Whistler, 60 for Chilliwack and 55 for Pemberton — be compared with the numbers of students attending the small schools located across the province that were retained by the trial judge and for which there is no evidence in the record capable of rebutting the presumption that it is appropriate to create a school of comparable size for the minority. Enrolment in these majority language schools ranges from 66 to 73 students.

[ 97 ] The relevant numbers for North Victoria, Whistler and Chilliwack are comparable to the numbers of students attending these comparator majority language schools. These communities are therefore entitled to homogeneous schools.

[ 98 ] As for Pemberton, it is difficult to compare the number of students in question there with the numbers of students at the majority language schools located elsewhere in the province that were retained by the trial judge. Given that the available evidence is limited and that additional submissions might be necessary, the question of the level of services warranted by this number of students should therefore be remanded to the court of original jurisdiction for reconsideration.

B. Does the Test Used to Assess the Quality of Instruction Provided to Official Language Minorities Vary With the Number of Minority Language Students?

[ 104 ] The test used to assess the quality of the educational experience provided to official language minorities does not vary with the number of minority language students. Section 23 gives an official language minority the right to instruction that is equivalent in quality to the instruction provided to the majority.

[ 105 ] Children of s. 23 rights holders must therefore receive an educational experience that is substantively equivalent to the experience provided to the majority, regardless of the size of the school or program in question.

[ 106 ] The essentials of the approach from Rose-des-vents , which allows for a holistic assessment of the quality of the educational experience provided to the official language minority, do not need to be adapted in a situation in which the schools of the official language minority are small, aside from the fact that a reasonable parent must take into account the inherent characteristics of attendance at a small school.

[ 107 ] Accordingly, where a minority language school is not comparable in size to nearby majority language schools, what must be considered is whether reasonable parents who are aware of the inherent characteristics of small schools would be deterred from sending their children to a school of the official language minority because the educational experience there is meaningfully inferior to the experience at available majority language schools.

[ 108 ] Even where the number of students falls at the low end of the sliding scale, such that there is a right to instruction alone, the factors listed in Rose-des-vents must be taken into account in assessing the quality of the educational experience from a program of instruction; the right to instruction cannot be entirely severed from the overall educational experience.

[ 109 ] In the case of a heterogeneous school or a program of instruction, the analysis based on the substantive equivalence test serves to determine whether the instruction over which the minority has control and the facilities to which it has access are of sufficient quality.

[ 110 ] In light of these comments, the approach adopted by the courts below in this case where the number of students was not comparable to the numbers of majority language students must be rejected, because that approach was based on what was called a proportionality test rather than on that of substantive equivalence. The trial judge's conclusions are therefore varied to reflect the conclusion that all rights holders whose children attend CSF schools or participate in its programs are entitled to an educational experience that is substantively equivalent to the experience at nearby majority language schools.

[ 111 ] For the schools in the communities of Nelson, Chilliwack and Mission, the quality of the educational experience must be assessed from the perspective of a reasonable parent who is aware of the inherent characteristics of a small school.

[ 112 ] When the substantive equivalence test and the proper approach are applied for the CSF school in Nelson, the trial judge's finding that the educational experience of the minority language students is equivalent to the experience provided to the majority language students should be accepted.

[ 113 ] As for the CSF school in Chilliwack, a balancing of the advantages and disadvantages shows that the quality of the educational experience provided there is meaningfully inferior to that of the experience at the majority's schools. This means that the children of rights holders in Chilliwack do not receive an educational experience of the quality guaranteed to them by s. 23 of the Charter .

[ 114 ] In the case of the CSF school in Mission, the situation is concerning, but the evidence that was adduced is insufficient for the purpose of making the holistic assessment required by the test of a reasonable parent who is aware of the inherent characteristics of a small school. The question of the quality of the educational experience and the impact of the Facility Condition Driver on this situation must therefore be remanded to the court of original jurisdiction.

C. Does Compelling a School Board to Prioritize Its Capital Projects Infringe Section 23?

[ 139 ] The fact that the province compels the CSF to prioritize the capital projects the latter submits, even in response to infringements of s. 23, does not infringe the right of management guaranteed by s. 23 of the Charter .

[ 140 ] How much time the province has to remedy the infringements of s. 23 will have to be addressed on a case-by-case basis, but the infringements must nonetheless be remedied in a timely fashion.

D. How Is an Infringement of Section 23 Assessed Under Section 1?

[ 143 ] Where an infringement of s. 23 is established, a court must take the approach established in R. v. Oakes , while applying a particularly stringent justification standard. This very stringent standard is appropriate for three reasons.

[ 144 ] First, the framers of the Charter imposed positive obligations on the provincial and territorial governments in s. 23, and these obligations must be fulfilled in a timely fashion in order to avoid the likelihood of assimilation and of a loss of rights.

[ 145 ] Second, s. 23 is not subject to the notwithstanding clause in s. 33 of the Charter , which reflects the importance attached to this right and the intention of the framers that intrusions on it be strictly circumscribed.

[ 146 ] Third, s. 23 has an internal limit, the numbers warrant requirement, according to which the exercise of the right for which the section provides will be warranted if there are a sufficient number of students. In adopting this limit, the framers sought to take account of practical considerations, including cost and pedagogical needs, related to the number of students who might benefit from the right in question. Where the government concerned advances a financial argument to justify an infringement of s. 23, the s. 1 analysis will then in some respects duplicate the numbers warrant analysis that has already been completed. For an infringement of s. 23 to be justified under s. 1 , it must not therefore be supported by considerations that have already been taken into account at the numbers warrant stage.

[ 147 ] At the second stage of the approach established in Oakes — proportionality between the effects of the measure that is responsible for limiting the right and the objective that has been identified as important —, it is necessary to take assimilation fully into account as a deleterious effect when the right under s. 23 is infringed. The purpose of s. 23 is not only to ensure the sustainability of the country's linguistic communities, but also to make it possible for those communities to develop in their own language and culture in the present. In this sense, even though the evidence shows that s. 23 has not been able to counter or slow the process of assimilation, the fact remains that citizens from official language minority communities still have a right to achieve fulfillment in their own language in everyday life. In addition, a court must bear in mind that s. 23 has an individual dimension and that minority language schools have a definite impact on the likelihood of assimilation of French speakers who attend them. Finally, cost savings linked to an infringement of s. 23 cannot be considered a relevant factor in the balancing of the salutary and deleterious effects of the infringing measure.

[ 148 ] In the case at bar, the courts below erred in ruling that the fair and rational allocation of limited public funds is a pressing and substantial objective that can justify infringements of s. 23 in accordance with the Oakes test. The fair and rational allocation of limited public funds represents the daily business of government. The mission of a government is to manage a limited budget in order to address needs that are, for their part, unlimited. There is accordingly no pressing and substantial objective here that can justify an infringement of rights and freedoms in this case. The justification for the infringements therefore fails at the first stage of the analysis. Without a valid objective, the province cannot justify the infringements of s. 23.

[ 149 ] As a result, the infringement of s. 23 found by the trial judge on the basis that the CSF had been denied $1.1 million by not having benefited from the Annual Facilities Grant Rural Factor is not justified, and the CSF is entitled to damages in that amount.

E. Does the Limited Government Immunity From Damages Awards Apply to Decisions Made in Accordance With Government Policies That Are Found to Be Contrary to Section 23?

[ 164 ] The limited government immunity from damages awards does not apply to decisions made in accordance with government policies that are found to be contrary to s. 23.

[ 165 ] Although damages can be awarded against a government where they are an appropriate and just remedy in the circumstances, it may avoid such an award by raising concerns for effective governance, including where a law has been declared to be invalid after the act that caused the infringement. However, the government does not have immunity in relation to government policies that infringe fundamental rights.

[ 166 ] The possibility of damages being awarded in respect of Charter-infringing government policies in this context is unlikely to have a chilling effect on government actions and thereby undermine their effectiveness; on the contrary, it helps ensure that government actions are respectful of fundamental rights.

[ 167 ] While it is appropriate to give the government immunity in respect of a well-defined instrument such as a law, the same is not true in respect of undefined instruments with unclear limits, such as government policies.

[ 168 ] In the case at bar, because the freeze on school transportation funding was a government policy, the trial judge's order awarding damages for the inadequate funding of school transportation should be restored.

VI. Disposition

[ 182 ] The appeal is allowed in part. The following declarations are made:

(a) Rights holders in the proposed Abbotsford elementary catchment area and the proposed Fraser Valley secondary catchment area are entitled to have their children receive a minority language education in a homogeneous elementary/secondary school in Abbotsford with space for 85 elementary-age students and 120 secondary-age students (or such other numbers as the parties agree to) that provides a global educational experience of a quality that is substantively equivalent to the educational experience offered at local majority language schools;

(b) Rights holders living in the proposed Burnaby catchment area are entitled to have their elementary school age children receive a minority language education in homogeneous facilities with space for 175 students (or such other numbers as the parties agree to) that provides an educational experience substantively equivalent to the experience at nearby majority language elementary schools;

(c) Rights holders living in the proposed Northeast Vancouver catchment area are entitled to have their elementary school age children receive a minority language education in homogeneous facilities with space for 270 students (or such other numbers as the parties agree to) that provides an educational experience substantively equivalent to the experience at nearby majority language elementary schools;

(d) Rights holders living in the proposed East Victoria catchment area are entitled to have their elementary school age children receive a minority language education in homogeneous facilities with space for 275 students (or such other numbers as the parties agree to) that provides an educational experience substantively equivalent to the experience at nearby majority language elementary schools;

(e) Rights holders living in the proposed West Victoria catchment area are entitled to have their elementary school age children receive a minority language education in homogeneous facilities with space for 299 students (or such other numbers as the parties agree to) that provides an educational experience substantively equivalent to the experience at nearby majority language elementary schools;

(f) Rights holders living in the proposed North Victoria catchment area are entitled to have their elementary school age children receive a minority language education in homogeneous facilities with space for 98 students (or such other numbers as the parties agree to) that provides an educational experience substantively equivalent to the experience at nearby majority language elementary schools;

(g) Rights holders in the Whistler area are entitled to have their elementary school age children receive a minority language education in homogeneous facilities with space for 85 students (or such other numbers as the parties agree to) that provides an educational experience substantively equivalent to the experience at nearby majority language elementary schools;

(h) Rights holders in the Squamish area are entitled to have their elementary school age children receive a minority language education in homogeneous facilities with space for 135 students (or such other numbers as the parties agree to) that provides an educational experience substantively equivalent to the experience at nearby majority language elementary schools;

(i) Rights holders in the Sechelt area are entitled to have their elementary school age children receive a minority language education in homogeneous facilities with space for 90 students (or such other numbers as the parties agree to) that provides an educational experience substantively equivalent to the experience at nearby majority language elementary schools;

(j) Rights holders in the Chilliwack catchment area are entitled to have their elementary school age children receive a minority language education with access to core facilities with space for 60 students (or such other numbers as the parties agree to), and the services currently provided do not allow the CSF to offer a global educational experience that is substantively equivalent to that offered at local majority language elementary schools;

(k) The questions of the educational experience at École des Deux-rives in Mission, the impact of the Facility Condition Driver, and the level of services warranted by the number of students in the Pemberton area are remanded to the court of original jurisdiction for reconsideration.

[ 185 ] The trial judge's order concerning school transportation is restored. The respondents are ordered to pay $6 million in Charter damages to the CSF over a period of 10 years in respect of the inadequate funding of school transportation from 2002-03 to 2011-12.

[ 186 ] The respondents are also ordered to pay $1.1 million in damages to the CSF to compensate it for the amount it was denied in respect of the Annual Facilities Grant Rural Factor.

[ 187 ] With costs to the appellants throughout.

Joint Reasons Dissenting in Part

Brown and Rowe JJ. —

I. Introduction

[ 188 ] The fundamental importance of bilingualism to Canadian society was affirmed by this Court in Conseil scolaire francophone de la Colombie-Britannique v. British Columbia , 2013 SCC 42 , [2013] 2 S.C.R. 774, at para. 106 . Similarly, in Mahe v. Alberta , Dickson C.J. described the "vital role of education in preserving and encouraging linguistic and cultural vitality" as the "linchpin" of Canada's commitment to bilingualism and biculturalism: p. 350.

[ 189 ] As our colleague notes, it is impossible to separate the history of Canada from the history of its official languages: paras. 5-12. Language and culture are inextricably linked to the Canadian identity. This is one of the reasons that bilingualism and the protection of official linguistic minorities have long been, and continue to be, of profound concern to many Canadians. The entrenchment of these two concepts in the Constitution speaks volumes about their importance.

[ 190 ] Unlike most rights under the Charter , s. 23 imposes positive duties on governments to act. Its framing as a positive right is particularly significant in this regard. As highlighted by the Chief Justice, the objective of s. 23 is threefold, being at once preventative, remedial, and unifying: para. 15. In order to give s. 23 its full effect, courts must interpret it in light of that objective. But in doing so, they must be mindful of the way in which s. 23 has been framed. In particular, they must recognize that it expresses its own internal limit, the "numbers warrant" criterion — the product of a carefully struck constitutional bargain, which expressly calls upon courts, and has been interpreted as calling upon courts, to apply considerations of pedagogy and costs.

[ 191 ] Like the Chief Justice, we are of the view that a purposive interpretation of s. 23 requires that substantive equivalence apply throughout the sliding scale of entitlement in recognition that the quality of official minority language education cannot be meaningfully inferior to that of the majority. We therefore reject the lower courts' conclusion that "proportionality" is the applicable standard in the middle or lower ends of the sliding scale.

[ 192 ] We also agree with the Chief Justice that no infringement of s. 23 arises based on the prioritization requirement: paras. 139-40.

[ 193 ] Despite our substantial agreement with the Chief Justice, this area of our law is fraught with questions on which reasonably held differences can and will arise. We stress that our positions are not far apart. While we agree with him on goals, we disagree on how they are best achieved. To our mind, there are important reasons for maintaining a more conventional approach in line with settled jurisprudence. As we will explain below, our differences stem principally from the Chief Justice's use of a province-wide presumption of pedagogical and cost appropriateness in the "numbers warrant" analysis. This presumption affects key elements of the s. 23 analysis, leading to a compression of the middle of the scale and to a strained application of the substantive equivalence test.

[ 196 ] The Chief Justice also concludes that the immunity from Charter damages set out in Mackin v. New Brunswick (Minister of Finance) , 2002 SCC 13 , [2002] 1 S.C.R. 405, does not extend to government policies. Again, with respect, we must disagree. This Court's jurisprudence has consistently framed the principle in terms sufficiently broad to cover policies, and there is no principled reason to distinguish between legislation and other instruments, notably regulations and policies. However, an exception to this general immunity is warranted in the case of s. 23, which is a positive right that requires the expenditure of public funds and is particularly susceptible to government inaction. Thus, we find ourselves in agreement with our colleague that Charter damages are properly awarded in the circumstances of this case, but differ as to the general statement of the law with respect to Charter damages in other contexts.

II. Facts and Decisions Below

[ 200 ] While we agree with the Chief Justice's account of the facts, we highlight certain facts that demonstrate the exceptional complexity of this case. The trial lasted 238 days (over a span of approximately three years) and led to one of the longest — if not the longest — trial decision in Canadian history ( 2016 BCSC 1764 ). The trial judge heard from over 40 lay witnesses and 13 experts. She was presented with over 1,600 exhibits and over one thousand pages of written argument.

III. The Numbers Warrant Analysis

[ 201 ] The analysis to be applied to s. 23 claims follows two main steps. First, a court must determine the level of services warranted by the number of rights holders in a given area (the "numbers warrant" analysis). This entails ascertaining the relevant number of rights holders, then placing that number on a sliding scale of entitlement in order to decide what level of service is warranted.

[ 202 ] The relevant figure for the purposes of this analysis is the number of persons who will eventually take advantage of the contemplated program or facility. This figure is an estimate that will fall somewhere between the known demand for the service and the total number of persons who potentially could take advantage of the service. The goal is not to establish how many students will take advantage of the facility or program when it is first launched, but rather to forecast how many will do so in the future.

[ 217 ] Applying a province-wide presumption of pedagogical and cost appropriateness at the "numbers warrant" stage, as a majority of the Court suggests, affects key elements of the s. 23 analysis and leads to a compression of the middle of the sliding scale. Considerations of pedagogy and cost are effectively withdrawn, regardless of the particular context that may explain the continued relevance of a school elsewhere in the province.

[ 218 ] The second reason that proper placement is crucial relates to the first point: just as a failure to give effect to the rights conferred by s. 23 can be detrimental to the flourishing of minority languages, improper placement on the scale — that is, not respecting the internal limit of s. 23 — can also be harmful to minority students. As Dickson C.J. explained in Mahe , not only would such a situation be impractical, it would also undermine the educational experience of minority rights holders:

There is no point, for example, in having a school for only ten students in an urban centre. The students would be deprived of the numerous benefits which can only be achieved through studying and interacting with larger numbers of students. [Emphasis added; p. 385.]

In short, properly determining the entitlement by taking into account the internal limit is a means of preserving s. 23's internal limit, while at the same time providing the appropriate level of services for minority language students.

IV. The Section 1 Analysis

[ 289 ] The applicability of Mackin immunity is not properly determined by applying hard and fast rules. It may apply in many contexts, but that is not to say that it will necessarily apply with the same force.

[ 290 ] McLachlin C.J.'s explanation that different thresholds may apply for different situations is crucial. The applicability of Mackin immunity is not properly determined by applying hard and fast rules. It may apply in many contexts, but that is not to say that it will necessarily apply with the same force.

[ 291 ] Henry (2015) is consistent with our view of the matter. There, the Court described the Mackin principle as applying to "state action taken pursuant to a law"; in other words, it applied to "actions taken in good faith under a law [state actors] believed to be valid": para. 42 (emphasis added).

V. Conclusion of Dissent

[ 329 ] We now turn to the infringements that the trial judge found were justified under s. 1. As we have explained, cost considerations can play a role in the s. 1 analysis, provided they are linked to other considerations. In the case at bar, however, the pressing and substantial objective that was identified — the fair and rational allocation of limited public funds — is not a valid objective under s. 1. The lack of a valid pressing and substantial objective is determinative of the s. 1 analyses. It follows that none of the identified breaches are justified.

[ 334 ] Applying the Ward framework with due consideration of the s. 23 context, we conclude that an award of damages is appropriate in relation to both the AFG Rural Factor and the transportation breach.

[ 345 ] We would allow the appeal in part, and set aside the judgment of the Court of Appeal, for the reasons set out above. We would make declarations in substantially the same terms as those in the majority reasons, and would restore the trial judge's damages awards. The appellants are entitled to their costs in this Court and in the courts below.

Appeal allowed in part with costs, Brown and Rowe JJ. dissenting in part.

Solicitors

For the appellants: Gall Legge Grant Zwack, Vancouver; Juristes Power, Vancouver.

For the respondents: Ministry of Attorney General Legal Services Branch, Victoria.

For the intervener the Attorney General of Nova Scotia: Attorney General of Nova Scotia, Halifax.

For the intervener the Attorney General of Prince Edward Island: Department of Justice and Public Safety, Charlottetown.

For the intervener the Attorney General of Saskatchewan: Attorney General of Saskatchewan, Regina.

For the intervener the Attorney General of Alberta: Attorney General of Alberta, Edmonton.

For the intervener the Attorney General of Newfoundland and Labrador: Department of Justice and Public Safety, St. John's.

For the intervener the Attorney General of the Northwest Territories: Department of Justice, Yellowknife.

For the intervener the Commissioner of Official Languages of Canada: Office of the Commissioner of Official Languages in Canada, Gatineau.

For the intervener the Quebec Community Groups Network: Conway Baxter Wilson, Ottawa.

For the intervener the David Asper Centre for Constitutional Rights: University of Toronto, Toronto.

For the interveners Association des juristes d'expression française du Nouveau-Brunswick inc. and Association des enseignantes et enseignants francophones du Nouveau-Brunswick inc.: Université de Moncton, Moncton.

For the intervener Fédération nationale des conseils scolaires francophones: Miller Thomson, Regina.

For the interveners Association des parents de l'école Rose-des-Vents and Association des parents de l'école des Colibris: Nicolas M. Rouleau Professional Corporation, Toronto.

For the intervener the Canadian Association for Progress in Justice: IMK, Montréal.

For the interveners Société de l'Acadie du Nouveau-Brunswick and Fédération des conseils d'éducation du Nouveau-Brunswick: Pink Larkin, Fredericton.

For the intervener the Assembly of Manitoba Chiefs: Public Interest Law Centre, Winnipeg.

For the intervener Commission nationale des parents francophones: Larochelle Law, Whitehorse.

For the intervener Conseil scolaire francophone provincial de Terre-Neuve-et-Labrador: Lidstone & Company, Vancouver.

For the intervener the Canadian Francophonie Research Chair in Language Rights: University of Ottawa, Ottawa.

Footnotes

[1] The Court explained the scope of s. 93 in Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General) , 2015 SCC 25 , [2015] 2 S.C.R. 282, at para. 68 , footnote 2:

Section 93 applies directly to Ontario, Nova Scotia, New Brunswick, British Columbia and Prince Edward Island. Section 93 also applies to Quebec, but not ss. 93(1) to 93(4): Constitution Amendment, 1997 (Quebec) , SI/97-141, s. 1; s. 93A of the Constitution Act, 1867 . Modified versions of s. 93 apply in the other provinces and the territories: Manitoba Act, 1870 , S.C. 1870, c. 3, s. 22; Saskatchewan Act , S.C. 1905, c. 42, s. 17; Alberta Act , S.C. 1905, c. 3, s. 17 . . . .

In Newfoundland and Labrador, s. 93 was replaced by an amended version of Term 17 of the Terms of Union of Newfoundland with Canada ( Newfoundland Act (U.K.), 12, 13 & 14 Geo. 6, c. 22, reproduced in R.S.C. 1985, App. II, No. 32); Constitution Amendment, 1998 (Newfoundland Act) , SI/98-25; Constitution Amendment, 2001 (Newfoundland and Labrador) , SI/2001-117; see also Department of Justice, A Consolidation of the Constitution Acts, 1867 to 1982 (2012), pp. 81-83, endnote 4. In the territories, the power over education is derived from Parliament's plenary power over them. That power is delegated by the territories' constituent legislation ( Constitution Act, 1871 (U.K.), 34 & 35 Vict., c. 28, reproduced in R.S.C. 1985, App. II, No. 11, s. 4; Northwest Territories Act , S.C. 2014, c. 2 [as en. by the Northwest Territories Devolution Act , S.C. 2014, c. 2, s. 2 ], s. 18(1) (o); Yukon Act , S.C. 2002, c. 7, s. 18(1)(o); Nunavut Act , S.C. 1993, c. 28, s. 23(1)(m)).

[2] The appellants submit that the trial judge erred in situating the 85 elementary school age students where she did on the sliding scale. They do not challenge her conclusion that the 30 secondary school age students warrant a program of instruction.

[3] For the Proposed Abbotsford Elementary Catchment Area, the trial judge established the known demand to be 25 elementary-age students (at para. 5031) and the potential demand to be 288 (at para. 5024), but held that the relevant number was between 10 and 30 students (paras. 5041 and 5063). She acknowledged that, in the future, the number of children who would likely take advantage of the program or facilities could be estimated to be 85 elementary-age children (para. 5041).

[4] For the Proposed Fraser Valley Secondary Catchment Area, the trial judge established the known demand to be 34 secondary-age students (at para. 5031) and the potential demand to be 495 students (at para. 5024), but held that the relevant number was between 20 and 40 students (paras. 5050 and 5066). She acknowledged that, in the future, the number of children who would likely take advantage of the program or facilities could be estimated to be 120 secondary-age children (para. 5051).

[5] For the Proposed Burnaby Catchment Area, the trial judge established the known demand to be 91 elementary-age students (at para. 5189) and the potential demand to be 500 students (at para. 5179), but held that the relevant number was between 15 and 40 students (paras. 5197 and 5220). She acknowledged that, in the future, the number of children who would likely take advantage of the program or facilities could be estimated to be 175 elementary-age children (para. 5221).

[6] For the Northeast Vancouver Catchment Area, the trial judge established the known demand to be 194 elementary-age students (at para. 3779) and the potential demand to be 320 students (at para. 3773), but held that the relevant number was approximately between 25 and 45 students (paras. 3797 and 3806). She acknowledged that, in the future, the number of children who would likely take advantage of the program or facilities could be estimated to be 270 elementary-age children (para. 3797).

[7] For the East Victoria Catchment Area, the trial judge established the known demand to be 147 elementary-age students (at para. 4038) and the potential demand to be 424 students (at para. 4032), but held that the relevant number was between 30 and 50 students (paras. 4054 and 4068). She acknowledged that, in the future, the number of children who would likely take advantage of the program or facilities could be estimated to 275 elementary-age children (para. 4068).

[8] For the North Victoria Catchment Area, the trial judge established the known demand to be 17 elementary-age students (at para. 4038) and the potential demand to be 149 students (at para. 4032), but held that the relevant number was between 10 and 15 students (paras. 4054 and 4070). She acknowledged that, in the future, the number of children who would likely take advantage of the program or facilities could be estimated to be 98 elementary-age children (para. 4070).

[9] For the West Victoria Catchment Area, the trial judge established the known demand to be 135 elementary-age students (at para. 4038) and the potential demand to be 460 students (at para. 4032), but held that the relevant number was between 30 and 50 students (paras. 4054 and 4068). She acknowledged that, in the future, the number of children who would likely take advantage of the program or facilities could be estimated to be 299 elementary-age children (para. 4068).

[10] According to the Joint Fact Finder Report, which the trial judge qualified as a "highly reliable source of evidence" (at para. 2163), Connaught Heights Elementary School was constructed in 1963, has an operating capacity of 88, and has seen enrolment varying between 117 and 139 between 2008 and 2012: A.R., vol. XXIII, at pp. 286 and 293.

[11] The trial judge considered and weighed a variety of factors and found that the global education experience of students at École Élémentaire La Passerelle was of the same standard as that offered at the majority schools (para. 2242). She found that the school had smaller classrooms and that its access to library and gym facilities was substandard (paras. 2231 and 2240). However, save accessibility issues, the facilities were comparable to those of the majority (para. 2242). CSF students were found to benefit from superior student-to-teacher ratios, small class sizes, and superior technology programming (paras. 2231, 2232 and 2241). She found that the francophone experience was excellent and that although the school was located in a heterogeneous facility, the fact that its classrooms were near one another allowed a francophone identity to develop (paras. 2215 and 2238). In our view, these findings support a conclusion that the experience is substantively equivalent, despite the trial judge's use of the "proportionality" standard.

[12] With respect to the educational experience of the secondary students in Kelowna whose program was housed within École de L'Anse-au-sable, the trial judge considered and weighed a number of factors and determined that it was equivalent to that of majority schools. On the negative side, she found the sports field to be deficient (although access to a nearby facility ameliorated the situation) (para. 4395). Moreover, its classrooms and library were comparatively smaller than the majority's (paras. 4396 and 4397). Nonetheless, these drawbacks were offset by the excellent francophone programming and sense of francophone identity (para. 4399). As well, the integration of technology in its curriculum and CSF's ability to offer computers surpassed majority schools (para. 4401). The smaller CSF class sizes and superior student-to-staff ratios allowed for increased individualized attention (para. 4400). Other benefits included the offering of an array of options, a welcome camp, a sports league, and field trips (para. 4407). Therefore, although she applied "proportionality" the trial judge's findings also support a finding that the experience was substantively equivalent.

[13] A careful review of the evidence pertaining to Chilliwack demonstrates that while the school presents numerous advantages for rights holder parents, notably when it comes to the Francophone experience (at para. 4812), class sizes (at paras. 4813-4815), student-to-staff ratios (at para. 4816) and technology (para. 4818). École Élémentaire La Vérendrye also presents some significant drawbacks. For instance, the school is significantly older (105 years old) than the average comparator (31 years old) (at para. 4811), and its transportation times are notably longer (69 minutes on average) than other local majority schools (34 minutes). Finally, École Élémentaire La Vérendrye does not have its own gymnasium. All comparators schools have gymnasia that are owned by SD33-Chilliwack and all but one are located within the comparator school facility. On the other end, the CSF rents Atchelitz Hall, an adjacent hall, for physical education. As noted by the trial judge, teaching physical education at Atchelitz Hall is not logistically practical. Indeed, students must change prior to walking over to the hall with the physical education material needed for class (which is not stored within the hall) and are not allowed to use the bathrooms located at the hall (paras. 4792-4794). Moreover, the hall is old and substantially smaller than a typical elementary gymnasium (280m² compared to an average of 390m²), thus allegedly limiting students from playing certain sports (paras. 4790 and 4798). Finally, the building is cold and students and staff sometimes wear jackets inside the hall (para. 4790). Overall, we are of the view that a reasonable rights holder parent would find the global experience to be substantially inferior in Chilliwack.