Section Twenty-three of the Canadian Charter of Rights and Freedoms
Encyclopedia
Section Twenty-three of the Canadian Charter of Rights and Freedoms is the section of the Charter
that constitutionally guarantees minority language
education
al rights to French
-speaking communities outside Quebec
, and, to a lesser extent, English
-speaking minorities in Quebec. The section may be particularly notable, in that some scholars believe that section 23 "was the only part of the Charter with which Pierre Trudeau
was truly concerned." Trudeau was the prime minister
who fought for the inclusion of the Charter of Rights in the Constitution of Canada
in 1982.
Section 23(1)(b), or section 23 as a whole, are also known as the "Canada clause."
Section 23 must be read in conjunction with Section 59 of the Constitution Act, 1982
:
, Trudeau had fought to ensure linguistic rights in the constitution to promote national unity. Section 23 (1)(b) had its origins in a unanimous agreement between the provincial leaders and Trudeau reached in 1978 in St. Andrews, New Brunswick
, in which children of citizens could receive schooling in their language. When this idea was brought to the Charter in the 1980s, Trudeau also successfully secured agreement from provincial leaders that section 23 could not be nullified by the section 33
notwithstanding clause.
When the government of Quebec had passed the Charter of the French Language
in 1977, only parents who had gone to English schools in Quebec could have their children educated in English. Concerns for the erosion of the educational rights of English-speaking Quebeckers thus led to section 23(1)(b) being written so that that part of the Quebec law would become unconstitutional. This portion of the Charter of the French Language was indeed struck down by the courts in Attorney General of Quebec v. Quebec Protestant School Boards (1984). Thus, anyone who had gone to an English language school in any province or territory could have their children educated in English in Quebec.
While there was decreased minority language education in Quebec at the time when the Charter was adopted, several other provinces (where English Canadian
s were the majority) had no French language schools at all. In contrast, in 2005 all provinces had minority language education schools. In 1986, 152,225 French Canadian
students were going to French-language schools in accordance with section 23, and in 2001 the number was 149,042. There would be various problems, such as a need for more French-speaking teachers and less opportunity for quality English-language education in rural Quebec. Some French Canadian students also switched to English language instruction because there were few ways to get a French language university education outside Quebec.
Still, minority language groups can now go to the courts if their minority language rights are not met, and they have received funding for the legal costs incurred through these court actions through the federal government's Court Challenges Program.
Section 23 is a positive right
. It has been found that section 23 thus guards against linguistic minorities being assimilated if their educational rights are denied for a long period of time, and this has led to section 24
of the Charter, which provides remedies for rights infringements, to be applied flexibly and creatively. For example, in Doucet-Boudreau v. Nova Scotia (Minister of Education)
(2003), it was found that the government could be forced to report to a judge as construction on schools progressed, in order to ensure the schools were built within a sufficient amount of time.
While much of section 23 can apply to Quebec, section 59 of the Constitution Act, 1982
states that section 23(1)(a) is of no force or effect there. This was a conciliatory gesture made by the authors of the Charter which failed to obtain Quebec's agreement to the constitutional changes in 1982. This provision will not be valid in Quebec until the provincial government chooses to ratify it.
s, as long as they speak English or French as a minority, the ability to exercise this right to send one's child to minority language education is limited by the possibility that the minority language community in which one lives may be too small. Sections 23(3)(a) and (b) state the "number of children" must be "sufficient to warrant" government spending for either schooling or the building of school
facilities.
These limits were defined by the Supreme Court of Canada
in the 1990 case Mahe v. Alberta
. The Court declared that section 23 guaranteed a "sliding scale." In certain circumstances, the children whose parents could exercise the right might be so few that literally no minority language education may be provided by the government. With a greater number of children, some schools might be required to provide classroom
s in which the children could receive minority language education. An even greater number would require the construction
of new schools dedicated solely to minority language education.
The Court also ruled that the right to "facilities" in section 23(3)(b) could include more than classrooms and schools. Namely, a large number of children could mandate that minority language schools have their own school boards. Somewhere between the right to a school and a right to a school board was a right for the minority language community to have some members on a larger school board.
In the case Arsenault-Cameron v. Prince Edward Island
(2000), the Court further defined sufficient numbers. As 49 French Canadian children were ready for minority language instruction in Summerside, Prince Edward Island
, it was argued by the province that a number this low would only require school bus
es to transport them to a nearby French language school, rather than the construction of a separate school. The Court, however, ruled that if a new school were actually built, it could draw in more people than those whose families had previously expressed interest, and thus the number could be somewhat fewer than 100. While even a school this small might struggle with providing certain educational services, protecting the culture of the minority language community was considered too important and the number of students was ruled sufficient for the building of a new school.
In 1916 under Premier T.C. Norris the prior compromise was rescinded and the Franco-Manitoban minority lost their right to receive instruction in French in Manitoba's public schools. Section 93 of the BNA act(1867) in the Province's opinion had been contravened with the Laurier-Greenway Compromise and no longer had legal standing. Moreover in section 93 of the BNA the province had ultimate authority to decide on minority language instruction. The latter remained status-quo until two changes were made to Manitoba's Public School Act (PSA) in 1966 and 1970 when French language instruction was once again recognized as an official language of instruction.
Manitoba's minority French language instruction rights have developed since the introduction of the Charter and Section 23 to a point where they have allowed for the inclusion of a separate school board (La Division Scolaire Franco-Manitobaine
DSFM) which is fully funded by the provincial treasury and operates throughout the Province. Significant with regards to the Province's (Manitoba) interpretation of section 23 is how the "number of Students" and not "mother tongue" is the basis upon which French language (minority) instruction rights are respected. Minority language instruction in Manitoba is in transition and still presents various legal issues and related constitutionally charged questions (see Manitoba Act 1870, Louis Riel
, Manitoba Schools Question
, Laurier-Greenway Compromise).
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
that constitutionally guarantees minority language
Minority language
A minority language is a language spoken by a minority of the population of a territory. Such people are termed linguistic minorities or language minorities.-International politics:...
education
Education in Canada
Education in Canada is for the most part provided publicly, funded and overseen by federal, provincial, and local governments. Education is within provincial jurisdiction and the curriculum is overseen by the province. Education in Canada is generally divided into primary education, followed by...
al rights to French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
-speaking communities outside Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
, and, to a lesser extent, English
English language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
-speaking minorities in Quebec. The section may be particularly notable, in that some scholars believe that section 23 "was the only part of the Charter with which Pierre Trudeau
Pierre Trudeau
Joseph Philippe Pierre Yves Elliott Trudeau, , usually known as Pierre Trudeau or Pierre Elliott Trudeau, was the 15th Prime Minister of Canada from April 20, 1968 to June 4, 1979, and again from March 3, 1980 to June 30, 1984.Trudeau began his political career campaigning for socialist ideals,...
was truly concerned." Trudeau was the prime minister
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...
who fought for the inclusion of the Charter of Rights in the Constitution of Canada
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
in 1982.
Section 23(1)(b), or section 23 as a whole, are also known as the "Canada clause."
Text
Under the heading "Minority Language Educational Rights," the section reads,Section 23 must be read in conjunction with Section 59 of the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
:
History
As a strong federalistCanadian federalism
Canada is a federation with two distinct jurisdictions of political authority: the country-wide federal government and the ten regionally-based provincial governments. It also has three territorial governments in the far north, though these are subject to the federal government...
, Trudeau had fought to ensure linguistic rights in the constitution to promote national unity. Section 23 (1)(b) had its origins in a unanimous agreement between the provincial leaders and Trudeau reached in 1978 in St. Andrews, New Brunswick
St. Andrews, New Brunswick
St. Andrews is a Canadian town in Charlotte County, New Brunswick.It is sometimes referred to in tourism marketing by its unofficial nickname "St. Andrews-by-the-sea".-Geography:St...
, in which children of citizens could receive schooling in their language. When this idea was brought to the Charter in the 1980s, Trudeau also successfully secured agreement from provincial leaders that section 23 could not be nullified by the section 33
Section Thirty-three of the Canadian Charter of Rights and Freedoms
Section Thirty-three of the Canadian Charter of Rights and Freedoms is part of the Constitution of Canada. It is commonly known as the notwithstanding clause , or as the override power, and it allows Parliament or provincial legislatures to override certain portions of the Charter...
notwithstanding clause.
When the government of Quebec had passed the Charter of the French Language
Charter of the French Language
The Charter of the French Language , also known as Bill 101 and Loi 101, is a law in the province of Quebec in Canada defining French, the language of the majority of the population, as the only official language of Quebec, and framing fundamental language rights for everyone in the province...
in 1977, only parents who had gone to English schools in Quebec could have their children educated in English. Concerns for the erosion of the educational rights of English-speaking Quebeckers thus led to section 23(1)(b) being written so that that part of the Quebec law would become unconstitutional. This portion of the Charter of the French Language was indeed struck down by the courts in Attorney General of Quebec v. Quebec Protestant School Boards (1984). Thus, anyone who had gone to an English language school in any province or territory could have their children educated in English in Quebec.
While there was decreased minority language education in Quebec at the time when the Charter was adopted, several other provinces (where English Canadian
English Canadian
An English Canadian is a Canadian of English ancestry; it is used primarily in contrast with French Canadian. Canada is an officially bilingual state, with English and French official language communities. Immigrant cultural groups ostensibly integrate into one or both of these communities, but...
s were the majority) had no French language schools at all. In contrast, in 2005 all provinces had minority language education schools. In 1986, 152,225 French Canadian
French Canadian
French Canadian or Francophone Canadian, , generally refers to the descendents of French colonists who arrived in New France in the 17th and 18th centuries...
students were going to French-language schools in accordance with section 23, and in 2001 the number was 149,042. There would be various problems, such as a need for more French-speaking teachers and less opportunity for quality English-language education in rural Quebec. Some French Canadian students also switched to English language instruction because there were few ways to get a French language university education outside Quebec.
Still, minority language groups can now go to the courts if their minority language rights are not met, and they have received funding for the legal costs incurred through these court actions through the federal government's Court Challenges Program.
Application
Negative and positive rights
Philosophers and political scientists make a distinction between negative and positive rights . According to this view, positive rights permit or oblige action, whereas negative rights permit or oblige inaction. These permissions or obligations may be of either a legal or moral character...
. It has been found that section 23 thus guards against linguistic minorities being assimilated if their educational rights are denied for a long period of time, and this has led to section 24
Section Twenty-four of the Canadian Charter of Rights and Freedoms
Section Twenty-four of the Canadian Charter of Rights and Freedoms provides for remedies available to those whose Charter rights are shown to be violated...
of the Charter, which provides remedies for rights infringements, to be applied flexibly and creatively. For example, in Doucet-Boudreau v. Nova Scotia (Minister of Education)
Doucet-Boudreau v. Nova Scotia (Minister of Education)
Doucet-Boudreau v. Nova Scotia [2003] 3 S.C.R. 3, 2003 SCC 62, was a decision of the Supreme Court of Canada which followed the Nova Scotia Supreme Court's finding that a delay in building French language schools in Nova Scotia violated the claimants' minority language educational rights under...
(2003), it was found that the government could be forced to report to a judge as construction on schools progressed, in order to ensure the schools were built within a sufficient amount of time.
While much of section 23 can apply to Quebec, section 59 of the Constitution Act, 1982
Constitution Act, 1982
The Constitution Act, 1982 is a part of the Constitution of Canada. The Act was introduced as part of Canada's process of "patriating" the constitution, introducing several amendments to the British North America Act, 1867, and changing the latter's name in Canada to the Constitution Act, 1867...
states that section 23(1)(a) is of no force or effect there. This was a conciliatory gesture made by the authors of the Charter which failed to obtain Quebec's agreement to the constitutional changes in 1982. This provision will not be valid in Quebec until the provincial government chooses to ratify it.
Sufficient numbers
While section 23 guarantees its rights to Canadian citizens who are also parentParent
A parent is a caretaker of the offspring in their own species. In humans, a parent is of a child . Children can have one or more parents, but they must have two biological parents. Biological parents consist of the male who sired the child and the female who gave birth to the child...
s, as long as they speak English or French as a minority, the ability to exercise this right to send one's child to minority language education is limited by the possibility that the minority language community in which one lives may be too small. Sections 23(3)(a) and (b) state the "number of children" must be "sufficient to warrant" government spending for either schooling or the building of school
School
A school is an institution designed for the teaching of students under the direction of teachers. Most countries have systems of formal education, which is commonly compulsory. In these systems, students progress through a series of schools...
facilities.
These limits were defined by the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
in the 1990 case Mahe v. Alberta
Mahe v. Alberta
Mahé v. Alberta, [1990] 1 S.C.R. 342 is a leading decision of the Supreme Court of Canada. The ruling is notable because the court established that section 23 of the Canadian Charter of Rights and Freedoms requires that parents of the official-language minority in each province have the right...
. The Court declared that section 23 guaranteed a "sliding scale." In certain circumstances, the children whose parents could exercise the right might be so few that literally no minority language education may be provided by the government. With a greater number of children, some schools might be required to provide classroom
Classroom
A classroom is a room in which teaching or learning activities can take place. Classrooms are found in educational institutions of all kinds, including public and private schools, corporations, and religious and humanitarian organizations...
s in which the children could receive minority language education. An even greater number would require the construction
Construction
In the fields of architecture and civil engineering, construction is a process that consists of the building or assembling of infrastructure. Far from being a single activity, large scale construction is a feat of human multitasking...
of new schools dedicated solely to minority language education.
The Court also ruled that the right to "facilities" in section 23(3)(b) could include more than classrooms and schools. Namely, a large number of children could mandate that minority language schools have their own school boards. Somewhere between the right to a school and a right to a school board was a right for the minority language community to have some members on a larger school board.
In the case Arsenault-Cameron v. Prince Edward Island
Arsenault-Cameron v. Prince Edward Island
Arsenault-Cameron v. Prince Edward Island, [2000] 1 S.C.R. 3, 2000 SCC 1, is a landmark Supreme Court of Canada decision on minority language rights...
(2000), the Court further defined sufficient numbers. As 49 French Canadian children were ready for minority language instruction in Summerside, Prince Edward Island
Summerside, Prince Edward Island
Summerside is a Canadian city in Prince County, Prince Edward Island. It is the second largest city in the province and the principal municipality for the western part of the island.- History :...
, it was argued by the province that a number this low would only require school bus
School bus
A school bus is a type of bus designed and manufactured for student transport: carrying children and teenagers to and from school and school events...
es to transport them to a nearby French language school, rather than the construction of a separate school. The Court, however, ruled that if a new school were actually built, it could draw in more people than those whose families had previously expressed interest, and thus the number could be somewhat fewer than 100. While even a school this small might struggle with providing certain educational services, protecting the culture of the minority language community was considered too important and the number of students was ruled sufficient for the building of a new school.
Manitoba
The decision to allow for Minority education rights (according to legal decisions based on Article 23) along a sliding scale had already been nascent in Manitoba and was foreshadowed by the Laurier-Greenway compromise of 1896. This compromise came in response to what was argued to be unconstitutional provincial school legislation (Schools Act 1890) in relation to the constitutionally entrenched Manitoba Act of 1870. In Manitoba where the Public Schools Act had been reformed along the lines of minority vs majority language rights and a changing population proportion of English to French (where English speakers out-numbered French by the 1890s), the Laurier-Greenway compromise allowed for a school district in a community by community basis to offer French language instruction if the French population was large enough and requested such instruction.In 1916 under Premier T.C. Norris the prior compromise was rescinded and the Franco-Manitoban minority lost their right to receive instruction in French in Manitoba's public schools. Section 93 of the BNA act(1867) in the Province's opinion had been contravened with the Laurier-Greenway Compromise and no longer had legal standing. Moreover in section 93 of the BNA the province had ultimate authority to decide on minority language instruction. The latter remained status-quo until two changes were made to Manitoba's Public School Act (PSA) in 1966 and 1970 when French language instruction was once again recognized as an official language of instruction.
Manitoba's minority French language instruction rights have developed since the introduction of the Charter and Section 23 to a point where they have allowed for the inclusion of a separate school board (La Division Scolaire Franco-Manitobaine
Division Scolaire Franco-Manitobaine
The Franco-manitoban School Division is a school division in Manitoba, Canada offering French-language education to its students. The right to French education was gained through Section 23 of the Canadian Charter of Rights and Freedoms...
DSFM) which is fully funded by the provincial treasury and operates throughout the Province. Significant with regards to the Province's (Manitoba) interpretation of section 23 is how the "number of Students" and not "mother tongue" is the basis upon which French language (minority) instruction rights are respected. Minority language instruction in Manitoba is in transition and still presents various legal issues and related constitutionally charged questions (see Manitoba Act 1870, Louis Riel
Louis Riel
Louis David Riel was a Canadian politician, a founder of the province of Manitoba, and a political and spiritual leader of the Métis people of the Canadian prairies. He led two resistance movements against the Canadian government and its first post-Confederation Prime Minister, Sir John A....
, Manitoba Schools Question
Manitoba Schools Question
The Manitoba Schools Question was a political crisis in the Canadian Province of Manitoba that occurred late in the 19th century, involving publicly funded separate schools for Roman Catholics and Protestants...
, Laurier-Greenway Compromise).
External links
- Digest of court decisions relating to Section 23(1) in the Canadian Legal Information Institute's Canadian Charter of Rights Decisions Digest
- Digest of court decisions relating to Section 23(2) in the Canadian Legal Information Institute's Canadian Charter of Rights Decisions Digest
- Digest of court decisions relating to Section 23(3) in the Canadian Legal Information Institute's Canadian Charter of Rights Decisions Digest