Conseil scolaire francophone de la Colombie-Britannique v British Columbia (Education), 2018 BCCA 305
[2] Section 23 of the Charter of Rights and Freedoms, grants citizens of Canada the right, in certain circumstances, to have their children educated in French or English out of public funds—even where that language community is the linguistic minority—so long as the number of children warrants such education. It essentially creates a sliding scale of entitlement to minority-language educational services based on the number of students: Mahe v. Alberta, [1990] 1 S.C.R. 342 at 366. It is a right that speaks to the unique nature of Canada as a bilingual society created through the coming together of French and English linguistic and cultural communities, and “sets Canada apart among nations”: Association des parents de l’école Rose-des-vents v. British Columbia, 2015 SCC 21 at para. 25 [Rose-desvents]. It is also a positive right, somewhat distinct within the structure of the Charter, which places a duty on government to not just refrain from interfering in minority language education, but to take positive steps to facilitate and provide such education. The Supreme Court of Canada has held that s. 23 essentially “mandates that governments do whatever is practical in the situation to preserve and promote minority language education”: Mahe at 367.
[3] In most cases where this right has been invoked, the number of minoritylanguage children has clearly warranted the highest level education and facilities. However, the case at bar raises, seemingly for the first time, the issue of what level of education must be provided when the number of students falls in the middle of the sliding scale—where at least some services, if not the highest level, are warranted.
[14] The plaintiffs’ fundamental complaint on appeal is that the judge erred in not finding rightsholders were entitled to the level of facilities that would justify the projects requested in their statement of claim. Concluding that the plaintiffs are entitled to such projects would clearly place significant costs on the Province, and was a conclusion the judge found to be impractical. The plaintiffs took the position before this Court that they did not on appeal seek orders directing that those requested projects be built. Instead, they sought only declarations as to entitlement in each community allowing any breaches of that entitlement to be remedied in a number of ways. Yet, crucially, there is nothing in the record before this Court to suggest that there are viable, less expensive alternatives to provide the level of facilities to which the plaintiffs claim they are entitled than the projects requested in the pleadings. The scale and costs of those requested facilities are therefore integral to the analysis of whether the plaintiffs are entitled by s. 23 to the level of facilities they so claim.
[15] The central question that must be answered then is whether the Charter requires the Province to immediately allocate upwards of $300 million to provide the educational facilities that have been requested by the plaintiffs, an amount equal to the annual funding for all educational capital projects province-wide.
[16] In our view, the answer to that question is “no”. Such a result would be contrary to the consistent theme in the jurisprudence of the need for practicality when interpreting the duties imposed on the government by s. 23. We conclude that the judge did not commit any errors in her analysis of whether s. 23 was infringed or whether any infringements were justified under s. 1. Nor did the judge err in not awarding Charter damages to the plaintiffs for certain lease costs.
[17] However, we conclude that the judge did err with respect to the award of Charter damages against the Province for failing to adequately fund transportation costs. With respect, the judge incorrectly failed to apply the traditional immunity against damages for actions which involve the mere enactment of a law or policy that is only later declared unconstitutional.