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.
