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Arsenault-Cameron v. Prince Edward Island & Ors

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Arsenault-Cameron v. Prince Edward Island & Ors



Canada (Americas)


Lamer CJ, L’Heureux-Dube J, Gonthier J, McLachlin J, Iacobucci J, Major J, Bastarache J, Binnie J, Arbour J


Section 23 of the Canadian Charter of Rights and Freedoms 1982, mandates provincial governments to do whatever is practically possible to preserve and promote minority language education. Accordingly, pursuant to s.23 the appellants asked the French Language Board (the Board) to establish a French primary school in the Summerside area. The Board made a conditional offer of French first language instruction in Summerside. The Minister of Education refused to approve the Board’s offer choosing instead to maintain a bus service to a French school in Abram’s Village, some 28 km away. The Prince Edward Island Supreme Court, Trial Division found that the pre-registration figures justified the provision of French language instruction out of public funds in Summerside. However, the appellate division of the Prince Edward Island Supreme Court overturned this decision. The appellants appealed to the Supreme Court claiming that their minority language education rights had been infringed.

In allowing the appeal, it was held that :

1.        The aim of section 23 is to correct on a national scale the historically progressive erosion of official language groups by ensuring an equal educational partnership between the two official ones. Therefore, as with all cases concerning language rights (Rv Beualac [1999] 1SCR 768 applied), section 23 should be interpreted purposively in order to both redress past injustices and provide equal access to high quality education for the official language minority group.

2.        Therefore any assessment of government action in dealing with requests for provision must take into account both the importance of language and culture in education and official language minority schools to the development of the official language community.

3.        In this regard s 23 is not designed to merely reinforce the status quo by adopting a formal vision of equality that treats the majority and minority official language groups alike. Such reliance on objective standards fails to take into account the special requirements of s 23 rights holders. Instead its basis in substantive equality requires that official language minorities be treated differently according to their particular circumstances and needs in order to provide them with a standard of education equivalent to that of the official language majority.

4.        In practice this means that when the numbers of s 23 children in a specific area warrant the provision of minority language instruction, it should take place in facilities located within their community. The number of children required to warrant such intervention lies somewhere between the known and potential demand. In this regard the province cannot avoid its constitutional duty to actively promote educational services in the minority language (Reference re : Public Schools Act (Man), s 79(3), (4) and (7) [1993] 1 SCR 839 applied) by citing insufficient proof of numbers, especially where it is not prepared to conduct its own studies or to obtain and present other evidence of known and potential demand.

5.        Where there are sufficient numbers to warrant intervention s.23 requires firstly, an assessment of the appropriate pedagogical services required followed by an examination of the costs of such services. In addressing the first concern the value of linguistic minority education is an important consideration. In arriving at his decision the Minister both failed to give proper weight to the effect of it on the promotion and preservation of the minority language community and to consider the potential costs involved. He therefore failed to fulfil his duty to exercise his discretion in accordance with the dictates of the Charter (Operation Dismantle Inc v R [1985] 1 SCR 441 applied).

6.        In particular his discretion is limited to verifying whether the Board, as the representative of the local community, has met the appropriate pedagogical and financial requirements. He has no right to impose his own criteria in place of the Board’s nor to substitute his decision for theirs simply because he regarded it as a bad one.

7.        In particular the Minister erred in deciding that providing transportation to a town outside Summerside fulfilled the Government’s obligations under s 23 as this was clearly insufficient. The Appeal Division therefore erred in accepting the Minister’s decision as consistent with s 23 and in concluding that buses could be considered educational facilities.

8.        Minority language parents and their representatives are best placed to identify local needs and to exercise management control over designated facilities (Mahe v Alberta [1990] 1 SCR 342 applied). In this regard the Appeal Division further erred by failing to take into account both the minority language children’s specific circumstances and the importance of the Board, as the representative of the community, in deciding matters that affected the linguistic and cultural development of the community.

Observation :

The fact that constitutional language rights resulted from a political compromise is not unique to language rights and does not affect their scope.


For the Appellants: Robert A McConnell; instructed by Campbell, Lea, Michael, McConnell & Pigot, Charlottetown
For the Respondent: Roger B Langille QC; instructed by the Attorney General of Prince Edward Island,
For the intervener the Attorney General of Canada: Claude Joyal, Warren J Newman and Marc Tremblay; instructed by the Attorney General of Canada, Ottawa
For the intervener the Attorney General for Ontario: Robert Earl Charney; instructed by The Ministry of the Attorney General, Toronto
For the intervener the Attorney General of Manitoba: Deborah L Carlson; instructed by the Department of Justice, Winnipeg
For the intervener the Commission scolaire de langue française de l’Île-du-Prince-Édouard: Pierre Foucher, Dieppe, New Brunswick
For the intervener the Commission nationale des parents francophones: Paul S Rouleau; instructed by Genest Murray DesBrisay Lamek, Toronto
For the intervener the Société St-Thomas d’Aquin — Société acadienne de l’Île-du-Prince-Édouard: Christian E Michaud; instructed by Patterson Palmer Hunt Murphy, Moncton
For the intervener the Commissioner of Official Languages of Canada: Daniel Mathieu and Richard L Tardif; instructed by the Office of the Commissioner of Official Languages of Canada, Ottawa


(2000) 9 BHRC 90; (2000) 3 CHRLD 220

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