The Expansion of Minority Language Education Rights in Ontario

The Expansion of Minority Language Education Rights in Ontario

By Heather Cameron

Respect for minorities is one of the unwritten constitutional principles underlying the Canadian constitution and of paramount importance in Canadian history. One of the key considerations in Canada’s unique multicultural history has been the guarantee of language rights to minority language groups in Canada, encompassing the Francophone minority outside Quebec and the Anglophone minority within Quebec. Following a history of denying rights to these groups, the Ontario Court of Appeal upheld education rights for French language students in Ontario in the decision Reference re Education Act of Ontario and Minority Language Education Rights, 1984.

First, section 93 of the Constitution Act 1867 (CA 1867) grants the legislatures of each province outside Quebec the power to make laws governing education and to establish an education management system. Prior to the passage of the Charter, this provincial power to grant or not grant minority language education rights in public schools resulted in a denigration of rights. In 1912, the Ontario government passed Standing Order 17 mandating English as the sole language of instruction, with the Judicial Council of the Privy Council upholding the order in 1917. Finally, the Royal Commission on Bilingualism and Biculturalism recognized the  necessity of preserving minority languages and education rights in 1977.

The Constitution Act 1982 (CA 1982) expanded protections to include the preservation and enforcement of guaranteed rights and fundamental freedoms, including minority language education rights.  CA 1982 builds on CA 1867 to specify the delegated rights in minority language education, enshrining the protection of minority rights that provides the framework for protection of Canada’s diverse and multicultural society. Section 23 specifies which Canadian citizens may choose to have their children educated in the minority language of a province. These rights are enshrined in the Constitution and cannot be overridden by an Act of Parliament or the Legislature.

The Ontario Court of Appeal continued to expand on the boundaries of this constitutional guarantee in one of the first cases to consider section 23, the Reference re Education Act of Ontario and Minority Language Education Rights, 1984. This decision considered the application of section 23 to existing provincial education laws. It held that Section 23 must be given a broad and liberal interpretation because it enacts new rights and creates a code establishing minority language education rights.  Under this code, the province is obligated to provide publicly funded French language instruction. The Legislature must further provide for education facilities for the minority on an equal basis to the majority, recognising the status of schools as a means to reflect and transmit the values of an official language community.

The Court further held that the right of Francophone parents to manage and control French language classes and schools should be recognized as being encompassed within section 23. Section 23 guarantees the representation of the linguistic minority on school boards and other authorities which administer minority language education, and these representatives should be given exclusive authority to make decision pertaining to this education. This right applies to both denominational and non-denominational schools.

This case was essential to the expansion of minority language education rights in Canada, overturning years of government action negatively impacting minority communities. Most importantly, it guaranteed the rights of minority groups to manage and control their own schools. Previously, French language schools existed outside of Quebec, but were controlled by the Anglophone majority and were not guaranteed equality with Anglophone education. This case ensured that all future minority education rights were to be interpreted with an expansive view, thereby expanding minority rights in Ontario and Canada. It represented an important protection of Franco-Ontarians, as it guaranteed their children would have a level of education equal to Anglophone communities and retain its essential place in the community.

The court’s holding further led to future decisions expanding and clarifying the rights of minorities in the context of language rights education in other provinces, as well as applying these same principles in the areas of government services and healthcare. This decision becomes more meaningful as aboriginal languages gain recognition in Canadian society and the Courts must eventually decide how to create new rights in this area. One must hope that courts will draw on the Ontario Court of Appeal’s approach to give Aboriginal language education the same large and liberal interpretation guaranteed to other minority language groups.

This content has been updated on 19 January 2017 at 11 h 05 min.