In February 2017, the House of Commons Standing Committee on Official Languages (the Committee) undertook a study on the issues related to the enumeration of rights-holders under section 23 of the Canadian Charter of Rights and Freedoms (the Charter).

This report presents common themes that arose from all the briefs received and evidence heard during the Committee’s public hearings.

1. WHAT IS A RIGHTS-HOLDER?

Under section 23 of the Charter, three categories of individuals have the right to have their children educated in the primary and secondary public schools of the official language minority:

• 1)    Parents “whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside” paragraph 23(1)(a) of the Charter;[1]
• 2)    Parents “ 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” — paragraph 23(1)(b) of the Charter;
• 3)    Parents “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” — subsection 23(2) of the Charter.

Canadian parents who fall under one of the three above-mentioned categories are rights-holders under section 23 of the Charter. These are basic categories. Provinces and territories can expand the criteria for admission to minority language schools and, as a result, create other categories to grant access to minority language schools to a larger number of children. For example, Nova Scotia has created four categories to allow children of non-rights-holders to attend French-language schools:

• A child whose parents/guardians are Canadian citizens and whose grandparents (at least one) speak French (or spoke French while living), providing that the parents/guardians commit themselves to actively promote the French language during the child’s school years.
• A child whose parents/guardians are not Canadian citizens, who speaks, reads and writes French according to the requirements of his or her school grade and who lives in a house where French is spoken.
• A student participating in an international student exchange program, who speaks, reads and writes French according to the requirements of his or her school grade.
• A child of a biological parent who is not an entitled parent and who is living with a Canadian citizen who is an entitled person.[2]

2. UNDERSTANDING CHARTER RIGHTS

The Committee heard that Canadians do not necessarily have a good understanding of what a rights-holder is. Furthermore, they are not always well informed about the various language options available for their children’s schooling, or the schools and programs they can choose from.

The Quebec English School Boards Association (QESBA) described the situation as follows:

[E]very year, our nine school boards receive hundreds of calls—hundreds is an underestimate—from people asking if they would be eligible. Or else they show up at the door of the school or the school board and say they want to register. Now there is a process they have to go through. It will help people understand that a family member, if they meet the criteria, is a rights-holders.[3]

There also seems to be some confusion regarding the type of school and variety of programs Canadians can choose from. In 1993 and in 1998, following the Mahé case[4] and community demands,[5] Statistics Canada developed questions on the language of instruction of children 15 and over to capture more rights-holder categories. Assessments found “that respondents had significant difficulties distinguishing between immersion programs, second-language programs, and official-language minority school programs.”[6]

To exercise their constitutional rights, Canadian citizens must first be aware of them. The Government of Canada has an opportunity to help minority language school boards, in collaboration with the provinces and territories, launch awareness and outreach campaigns to inform Canadians about their constitutional rights regarding education as well as the various schools and programs available.

Therefore, the Committee recommends:

Recommendation 1

That, pursuant to section 23 of the Canadian Charter of Rights and Freedoms, the Government of Canada work with the provincial and territorial governments, official-language minority school boards and other community stakeholders to develop and fund a national awareness and outreach campaign to inform Canadians about their constitutional rights in education and the language options available for their children’s schooling.

3. AN INCOMPLETE PICTURE

The Committee also heard that the census of the Canadian population captures only some rights-holders and does not collect any data to enumerate children able to attend English language minority schools.

3.1 An underestimated category of rights-holders

Only parents who meet the criteria in paragraph 23(1)(a) of the Charter are surveyed. Moreover, this category of rights-holders is underreported. As the Fédération des communautés francophones et acadienne du Canada (FCFA) explained, this is evident when new French language minority schools are built:

When it comes to services and schools, I wanted to point out that coverage is always insufficient. As soon as a school is built, it fills up. Even when demand estimates are done, people’s interest in the service is underestimated. As they say, if you build it, they will come. That is absolutely the case in our communities, in terms of federal services and schools alike[7].

The Supreme Court of British Columbia recently concluded that the census underreports this category of rights-holders and that it is impossible to “quantify the extent of the underreporting.”[8]

According to Rodrigue Landry, the underreporting of rights-holders under section 23(1)(a) of the Charter is due to the fact that “the formulation of question 9 on mother tongue, the response options for that question, and the context created by the other language questions all communicate to the respondent that the census is expecting the respondent to identify a single language in response to the mother tongue question.”[9]

The census guide states the following with respect to question 9:

For a person who learned two or more languages at the same time in early childhood, report the language this person spoke most often at home before starting school. Report two or more languages only if those languages were used equally often and are still understood by this person.

For a child who has not yet learned to speak, report the language spoken most often to this child at home.

For people who are deaf or for people who have a speech disability, report knowledge of English or French as applicable, by marking the appropriate option. Other languages, including sign language, should be entered in the box labeled “Other language - specify”.

When reporting other languages, be specific. For example, people who report Chinese should instead report the specific Chinese language: Cantonese, Mandarin, Cheochow, Fukien, Hakka, Shanghainese, Taiwanese, etc.[10]

Although these guidelines show some openness to multiple responses, evidence in Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Education), 2016, shows that some parents did not know that more than one response could be given to the census question on mother tongue.[11]

3.2 Two categories of rights-holders ignored

As previously mentioned, the census does not collect data on the number of rights‑holders under paragraph 23(1)(b) and subsection 23(2) of the Charter:

The short-form questionnaire of the census simply does not ask any questions about the schooling of parents or their children, and the long-form questionnaire only asks whether the person has obtained a high school diploma or equivalent. The census data therefore do not make it possible to estimate the number of children whose parents are entitled to enrol them in a minority language school as a result of their own schooling or the schooling of one of their children.[12]

This situation creates serious problems for francophones in a minority setting, but the issue takes on a whole new meaning for anglophones in Quebec, as access to English language minority schools in Quebec is restricted to rights-holders in paragraph 23(1)(b) and subsection 23(2)[13] of the Charter:

Education is not only the cornerstone of any society, it is the key element for the vitality and longevity of minority language communities. Our community is struggling to maintain our institutions and even our critical mass. Our rights in education are entrenched. The fragility of our community, though, is heightened by the fact that Quebec refuses to sign on to paragraph 23(1)(a) of the charter, which would provide some much-needed access to our schools to help maintain them, especially our small schools outside of the major urban areas.

We cannot overemphasize the importance of reliable data on the number of rights‑holders who are in Quebec under section 23. In Quebec, over roughly a 45-year period, or since about 1971, our school population in the English sector has declined from over 250,000 students to 99,500 today, or about 100,000 students, which represents about a 60% drop in enrolment.

…

The current data gathered is not necessarily representative for our minority community when gauging English public schooling eligible families. The Supreme Court of Canada has been clear in indicating that section 23 rights are applicable where numbers warrant. Given the numbers and size of the English community in Quebec, we are entitled to the maximum service given for education in any province.[14]

4. THE IMPORTANCE OF THE NUMBERS

Simply put, the census provides an incomplete picture of rights-holders under section 23 of the Charter.

However, access to complete data on school attendance is vital, as access to the primary and secondary public schools of the minority population is subject to a numerical criterion. The rights conferred in subsections 23(1) and 23(2) of the Charter are limited by subsection 23(3), which reads as follows:

23(3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population 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.[15]

This numerical criterion — “where numbers warrant” — means parents and school boards must be able to justify their demand for minority language educational facilities by proving to the provincial/territorial authorities that there are a sufficient number of children to exercise their constitutional right under section 23 of the Charter.

The Supreme Court of Canada looked at the numerical criterion in subsection 23 for the first time in Mahé,[16] in 1990. It proposed a definition of the number required to warrant demand for educational services in the language of the minority.

What is being considered when a court addresses the “numbers warrant” question — existing demand, potential demand, or something else? The appellants’ position was that the existing demand for Francophone services is not a reliable indicator of demand because the demand for any service will to some extent follow the provision of that service. The respondent, on the other hand, argued that the courts cannot simply use the total number of potential s. 23 students as a gauge, since it is highly unlikely that all of these students will take advantage of a proposed service. There is some force to both of these arguments; accordingly, the approach I have taken mediates between the concerns which they raise. In my view, the relevant figure for s. 23 purposes is the number of persons who will eventually take advantage of the contemplated programme or facility. It will normally be impossible to know this figure exactly, yet it can be roughly estimated by considering the parameters within which it must fall — the known demand for the service and the total number of persons who potentially could take advantage of the service.[17]

Basically, the Supreme Court of Canada concluded that consideration must be given to existing clients, the children enroled in minority language schools, and potential clients, the parents who could exercise their right to education in the language of the minority for their children’s schooling.

The Supreme Court of Canada reiterated this definition in Arsenault-Cameron (2000),[18] stating that, in addition to the numerical criterion, the community development objectives of section 23 must be taken into consideration:

The determination of the appropriate area for the provision of minority language instruction and facilities is something that has to be decided in each case with due consideration to the numbers involved as well as all of the important factors specific to the case. It is however important to note that the s. 23 standard is not neutral but favours community development.[19]

5. THE CONSEQUENCES OF AN INCOMPLETE PICTURE

Numerous witnesses stated that the inability to collect comprehensive data on rights-holders exacts a high price on official language minority communities (OLMC), as it strikes at the very heart of community vitality: schools.

Ontario’s French Language Service Commissioner explained the link between the vitality of OLMC and schools as follows:

Statistics Canada recently published a report on immigration and the vitality of the Canadian Francophonie. The figures are alarming: between 2015 and 2035, the proportion of the population outside Quebec whose mother tongue is French is expected to drop from 3.8% to 2.7%, excluding immigrants whose mother tongue is not French but who are fluent in the language.

[…]

The decline in the demographic weight of the French language is worrisome, especially since Ontario has been unable to reach its goal of 5% francophone immigration. The French-language school system will become more important as a means of preserving the French language and francophone culture.[20]

Having complete data on rights-holders gains in importance when the vitality of OLMC is taken into consideration.

As the Vice-President of the Quebec Community Groups Network (QCGN) explains, there is an inherent link between access to complete data on rights holders and the possibility of exercising the right to school management:

Without doubt, a linguistic minority community cannot exist without schools that it manages and controls and without the structures that are required to manage and control those schools. It can neither manage nor control these institutions, nor hold provinces and territories to account, without accurate data that reflect our minority language education rights as defined in section 23 of the charter.[21]

Key decisions about the management of minority language schools rely on statistical and demographic data:[22]

[I]dentification of potential clients; awareness-raising and recruitment campaigns; calculation of the enrolment rate in minority schools; number and percentage of the school population in English-language programs and French immersion programs; planning of real property requirements in terms of establishments, physical facilities and renovations; planning of human resources requirements, such as the number of teachers for educational training; interventions related to minorities’ rights to obtain new schools. This last point is important and has been tackled in many trials related to language rights.[23]

Fixed assets stood out in the testimony as a key issue for OLMC school boards. Roger Paul, Executive Director of the Fédération nationale des conseils scolaires francophones, said it is practically impossible for school boards to justify requests to provincial or territorial authorities for additional schools because of a lack of demo-linguistic data that reflects the reality of French language minority communities:

When I was director general, I tried to prove to the government — the Ontario government, in this case — that we needed schools in certain places. I was then asked a very legitimate question; I was asked for the data proving that schools were needed in certain locations. I could not justify my demands with figures, because I did not have all of the data in this regard. Imagine how far behind we fell during all of this time.[24]

Some witnesses argued that provincial and territorial governments also need data on rights-holders to plan their service delivery and, in general, make informed decisions based on reliable and evidence-based data[25].

As Ontario’s French Language Services Commissioner François Boileau explained: “The education ministries and departments do not know the exact number of rights-holders and will therefore underestimate the number of eligible children in making plans for their elementary and secondary school systems.”[26] Geoffrey Chambers, Vice-President of the QCGN said “[w]e have to have a better dialogue”[27] between OLMC and their provincial or territorial government. “Better facts can establish a better dialogue.”[28]

As the example bellow shows, the lack of data on rights-holders results in unacceptable situations:

In certain urban areas like Toronto, rights-holders have doubled in some communities. Unfortunately, we were, for instance, granted a school for only 400 students. After three years, we are overcrowded. The youngsters are in temporary facilities. It can take up to 10 years to obtain funding for an expansion project. That is the reality our school boards are facing throughout Canada.[29]

This issue is whether such situations infringe on the guaranteed right of minority language communities to facilities that are on a basis of equality with the majority.[30]

In other words, an adequate enumeration of rights-holders would lead to the expansion of the minority language school system because, taking into account the potential clientele, the provinces and territories would provide better access to minority language education:

In the final analysis, there would be more infrastructure. It’s a kind of vicious circle. If there were more buildings, there would be more students. If there were more students, our communities would be seen as being very vital. If there were more infrastructure, it would strengthen not only the schools, but also feed into the vitality of communities.[31]

It is noteworthy that Mahé supports this argument, stating that “the demand for any service will to some extent follow the provision of that service.”[32]

6. A FEDERAL RESPONSIBILITY

Most witnesses said that the responsibility for collecting the data needed to warrant a request for minority language education lies with the federal government.

In Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2016,[33] the Supreme Court of British Columbia concluded that the provincial government was responsible for collecting data on rights-holders in the province. It did not address the issue of federal responsibility, as the federal government was not a respondent. The court cannot go beyond the parameters of the case.

The experts who appeared before the Committee presented the main legal arguments that justify that the enumeration of rights-holders is a federal responsibility. As to the census, subsection 91(6) of the Constitution Act, 1867, states that the census is exclusively under federal jurisdiction:[34]

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

…

6. The Census and Statistics.[35]

As to promoting and respecting the rights of official language minority communities, federal responsibilities are clearly set out in the Charter and the Official Languages Act (OLA):

• subsection 16(3) of the Canadian Charter of Rights and Freedoms encourages the federal government to take measures to advance the equality of status or use of English and French; and
• Part VII of the OLA requires the federal government to take positive measures to enhance the vitality of OLMC, including measures to ensure compliance with section 23 of the Charter.[36]

 “The Canadian courts have never considered in a published judgment whether section 23 of the Charter directly imposes obligations on the federal government.”[37] That said, as Messrs. Landry, Power, Roy and Hachey argued, “A liberal and purposive interpretation of section 23 of the Charter (as in the case of all the rights guaranteed by the Charter), in the context of the census, leads to the conclusion that section 23 of the Charter imposes obligations on the federal government in this area.”[38]

In Mahé, the Supreme Court of Canada concluded that “[s]ection 23 is one component in Canada’s constitutional protection of the official languages. The section is especially important in this regard, however, because of the vital role of education in preserving and encouraging linguistic and cultural vitality. It thus represents a linchpin in this nation’s commitment to the values of bilingualism and biculturalism.”[39]

The OLMC have also made other arguments that the enumeration of rights-holders must be done by the federal government. They believe that data collection should be done by a reputable and impartial agency like Statistics Canada.

Take the example of Quebec’s English language school boards. The only data on rights-holders they receive is from the province. The Government of Quebec compiles data from applications to receive instruction in English, which are submitted to the Quebec’s ministère de l’Éducation et de l’Enseignement supérieur.[40] The QESBA says this data is inadequate:

We never have a proper estimate, not only for our community as a whole, but more specifically for our education institutions, when seeking English eligible students. Many rights-holders choose to send their children to French schools, private schools, or religious schools, and never apply for a certificate of eligibility for English education. … As such, many Quebec children are never counted as potentially eligible.[41]

According to the QCGN, the issue of impartiality is especially important for data collection and processing. It also notes that data on the number of rights-holders “is not always in the province’s or territory’s interest to collect.”[42]. Ontario’s French Language Services Commissioner François Boileau makes the same point: “the provinces and territories could use the lower number of rights-holders to justify allocating fewer resources to French-language school boards.”[43] Mr. Power also underscored the importance of having objective data: “The more objective the data, the more reliable it is. When it comes from Ottawa, some provinces are almost not interested in counting or counting properly. Ironically, it’s sometimes preferable to have some distance. This is one of those cases.”[44]

In light of these considerations, the Committee recommends:

Recommendation 2

That the Government of Canada recognize it is responsible for collecting complete data on rights-holders subject to section 23 of the Canadian Charter of Rights and Freedoms and commit to obtaining a complete portrait of rights-holders by 2021.

7. DEVELOPING A CENSUS TO SUPPORT THE CHARTER

The OLMC representatives, school board officials and experts who appeared before the Committee understand that Statistics Canada must adhere to a stringent process for determining the content of the census program. The Statistics Canada official also explained that the organization has a responsibility to “respond to information needs by recommending the appropriate tools to precisely and accurately report on rights‑holders.”[45]

Nevertheless, witnesses were adamant that the short-form census questionnaire, which is sent out to 100% of the population, is the only format possible for enumerating rights-holders properly.

There are specific reasons for choosing the census over other tools such as post‑census surveys and provincial administrative files. There are also technical reasons for its use. According to the 2016 decision by the Supreme Court of British Columbia in Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Education), the government must consider demographics (the geographic distribution if rights-holders) when evaluating potential demand.[46] Official language minority school boards told the Committee that only the Canadian census is able to provide the required information broken down by non-standard geographic region, such as school catchment area:

Moreover, such data should be collected for the entire country to provide numbers of rights holders in specific areas such as school catchment areas, which only the federal census can do. Therefore, the Government of Canada through the census is the level of government in the best position to ensure that minority school boards and also provincial and territorial governments have reliable data on the number of rights holders.[47]

The provinces and territories lack the capacity to collect comprehensive data on rights-holders. For example, Statistics Canada discussed the possibility of using administrative data from the provinces: “If the provinces were able to collect standardized data on the language of instruction of parents, brothers and sisters, and provided that data to Statistics Canada, it would be possible to enumerate rights-holders using administrative data.” [48]

Moreover, British Columbia recently contacted the federal government to ask for assistance in enumerating rights-holders. Pursuant to the 2016 ruling in Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Education), the B.C. government wrote to the Honourable Navdeep Bains (Minister of Innovation, Science and Economic Development and Minister responsible for Statistics Canada), on 24 January 2017, to state that the Ministry of Education supports the Conseil scolaire francophone (CSF) de la Colombie-Britannique in its efforts to amend the Canadian census so that it collects comprehensive and reliable data on the three categories of rights-holders under section 23 of the Charter.[49]

The Association canadienne-française de l’Alberta (ACFA) undertook a similar process with its provincial government. On 22 February 2017, Alberta Minister of Education David Eggen stated as folllows: “More accurate data will assist the province and Francophone Regional authorities in their ability to better plan for the future.” The Minister stated that his department would pass ACFA’s request on to the provincial Office of Statistics and Information, which is responsible for consultations with Statistics Canada.[50]

The Committee understands that Statistics Canada must take into account the requests of various interest groups. When making recommendations to the Governor in Council on census questions, it must find “a balance” and that “adding questions to the census requires a whole set of considerations, and those related to data quality can’t be sacrificed.”[51]

That being said, the requests presented to the Committee derive from the Charter of Rights and Freedoms. The British Columbia Supreme Court recently ruled that the provincial government’s “failure to collect information regarding the potential demand for minority language education in British Colombia, including the numbers and geographical distribution of children who could enrol in a school of the CSF, unjustifiably infringes s. 23 of the Charter.”[52] The federal government is responsible for the census, and its obligation to support the advancement, protection and vitality of OLMC has been recognized repeatedly. However, it has also failed to meet its constitutional obligations for some time:

Section 23 establishes eligibility conditions that encompass the majority of rights-holders, but, after three decades, the Government of Canada has not yet developed the necessary tools to properly identify or enumerate all those individuals.[53]

Under section 24 of the Charter,[54] the federal government’s failure to compile statistics on the three categories of section 23 rights-holders could be interpreted as a violation or a denial of constitutional guarantees. It is also a breach of the provisions of Part VII of the OLA, which require the Government of Canada to take positive measures to advance the official languages and support the development of OLMC.

As lawyer Mark Power explained, “It doesn't make sense for the Government of Canada to interfere with section 23. Ultimately, I understand Victoria and Regina are saying ‘not right away’, but it's unacceptable for the Canadian government to be responsible for our inability to properly manage the future in terms of capital. It's illegal, even.”[55]

The Government of Canada must help Canadian parents exercise their constitutional right to send their children to minority schools. It must also provide minority school boards with the data they need to fully exercise their right to school governance and to engage in meaningful dialogue with the provinces and territories, which require reliable data from a reliable source to make informed decisions.

In light of these considerations, the Committee recommends:

Recommendation 3

That the Minister of Innovation, Science and Economic Development ask Statistics Canada, as part of its preparation for the 2021 Census, to establish an advisory committee specifically mandated to examine the enumeration of rights-holders under section 23 of the Canadian Charter of Rights and Freedoms.

Recommendation 4

That the Government of Canada require Statistics Canada to include questions in the 2021 Census that would allow for the enumeration of all rights-holders under the broadest interpretation of paragraphs 23 (1) (a) and (b) and subsection 23 (2) of the Canadian Charter of Rights and Freedoms.

A number of witnesses offered suggestions regarding the content of questions that could be added to the census. These suggestions have been organized by theme in Appendix A. The Committee has also included all of section 8 of the brief submitted by Rodrigue Landry, Mark Power, Marc-André Roy and Jean‑Pierre Hachey,[56] in which they analyze the changes required to specific census questions and suggest new questions to capture all rights-holders in the 2021 census (see Appendix B).

8. A NEW SURVEY ON THE VITALITY OF OFFICIAL LANGUAGE MINORITIES

In 2006, Statistics Canada conducted a post-censal Survey on the Vitality of Official-Language Minorities (SVOLM). The SVOLM resulted from a direct request by the former Official Languages Branch of the Privy Council Office and was essential to the review of the Action Plan for Official Languages 2003−2008.[57]

The SVOLM covered the following four themes:

• sense of belonging and subjective vitality;
• use of languages in daily activities;
• accessibility and use of health care services in the minority language; and
• school attendance of children with one parent who belongs to the official language minority.[58]

With regard to minority language education, Statistics Canada stated that the post‑censal survey allowed for the number of rights-holders to be estimated for the first time. It also provided information “on the main reasons behind parents' choices for the language of instruction of their children.”[59]

In his 2006–2007 annual report, the Commissioner of Official Languages wrote that the SVOLM “should be repeated at regular intervals to obtain chronological data on the communities.”[60] The following year, he wrote that it “represents a major step forward for the Official Languages Program” and “a positive measure in itself.”[61]

Data from the SVOLM must not replace the data on rights-holders collected in the short-form census. However, the SVOLM is still a significant and innovative means of compiling OLMC data.

Therefore, the Committee recommends:

Recommendation 5

That, as part of the next official languages action plan, the Government of Canada:

a)    mandate Statistics Canada to conduct a new post-censal survey on the vitality of official language minorities based on data from the 2021 Census; and

b)   provide Statistics Canada with the necessary funding to conduct this survey, analyze the data and distribute products derived from the survey.

Recommendation 6

That, as part of the new survey on the vitality of official language minorities, Statistics Canada establish an advisory committee that would include representatives from anglophone and francophone minority communities.

In conclusion, the Committee would like to thank all of the stakeholders who participated in the hearings and submitted briefs as part of this study. The Committee urges the Government of Canada to act quickly and make this a priority issue.