File number: 35619
BEFORE THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)
BETWEEN:
L’ASSOCIATION DES PARENTS DE L’ÉCOLE ROSE-DES-VENTS AND JOSEPH PAGÉ IN HIS NAME AND IN THE NAME OF ALL CITIZENS OF CANADA RESIDING WEST OF MAIN STREET IN THE CITY OF VANCOUVER WHOSE FIRST LANGUAGE LEARNED AND STILL UNDERSTOOD IS FRENCH, OR WHO HAVE RECEIVED THEIR PRIMARY SCHOOL INSTRUCTION IN CANADA IN FRENCH, OR OF WHOM ANY CHILD HAS RECEIVED OR IS RECEIVING PRIMARY OR SECONDARY SCHOOL INSTRUCTION IN CANADA IN FRENCH APPELLANTS (Respondents on appeal, Petitioners at first instance)
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CONSEIL SCOLAIRE FRANCOPHONE DE LA COLOMBIE-BRITANNIQUE APPELLANT (Respondent on appeal, Respondent at first instance)
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THE MINISTER OF EDUCATION OF BRITISH COLUMBIA AND THE ATTORNEY GENERAL OF BRITISH COLUMBIA RESPONDENTS (Appellants on appeal, Respondents at first instance)
FACTUM OF THE APPELLANT (Courtesy translation) CONSEIL SCOLAIRE FRANCOPHONE DE LA COLOMBIE-BRITANNIQUE
Power Law Power Law 1199 West Hastings Street, suite 901 130 Albert Street, suite 1103 Vancouver, British Columbia V6E 3T5 Ottawa, Ontario K1P 5G4 Mark C. Power, Jean-Pierre Hachey David P. Taylor M. Élie Ducharme Tel.: 604-265-0340 Tel.: 613-702-5566 Fax: 1-888-404-2227 Fax: 613-702-5566 Email: [email protected] Email: [email protected]
Gall, Legge, Grant & Munroe LLP Agent for the Appellant, 1199 West Hastings Street, 10th floor Conseil scolaire francophone de la Vancouver, British Columbia V6E 3T5 Colombie-Britannique
Robert W. Grant, QC
Counsel for the Appellant, Conseil scolaire francophone de la Colombie-Britannique
ORIGINAL: Registrar of the Supreme Court of Canada
Copies: McCarthy Tétrault LLP Burke-Robertson, LLP 777 Dunsmuir Street, suite 1300 441 Maclaren Street, suite 200 Vancouver, British Columbia Ottawa, Ontario V7Y 1K2 K2P 2H3
Warren B. Milman Robert Houston, QC Karrie Wolfe Tel.: 613-236-9665 David Cowie Fax: 613-235-4430 Tel.: 604-643-7100 Email: [email protected] Fax: 604-643-7900 Email: [email protected]
Counsel for the Respondents, the Ministry Agent for the Respondents, the of Education of British Columbia and the Ministry of Education of British Attorney General of British Columbia Columbia and the Attorney General of British Columbia
Nicolas M. Rouleau, Professional Cavanagh LLP corporation 1111 Prince of Wales Drive, suite 720 Brock Avenue 401 Toronto, Ontario M6H 3P2 Ottawa, Ontario K2C 3T2
Nicolas Rouleau Colin Baxter Tel.: 416-885-1361 Anna Turinov Fax: 1-888-850-1306 Tel.: 613-569-8558 Email: [email protected] Fax: 613-569-8668 Email: [email protected]
Counsel for l’Association des parents Agents for l’Association des de l’École Rose-des-Vents and Joseph parents de l’École Rose-des- Pagé in his name and in the name of Vents and Joseph Pagé in his all citizens of Canada residing west of name and in the name of all Main Street in the city of Vancouver citizens of Canada residing west whose first language learned and still of Main Street in the city of understood is French, or who have Vancouver whose first language received their primary school learned and still understood is instruction in Canada in French, or of French, or who have received whom any child has received or is their primary school instruction receiving primary or secondary in Canada in French, or of whom school instruction in Canada in any child has received or is French receiving primary or secondary school instruction in Canada in French
Table of Contents
PART I – OVERVIEW AND FACTS ...... 1
(A) Overview ...... 1
Overview of the context in which École élémentaire Rose-des-Vents operates ...... 1
Overview of the two issues regarding the interpretation of s. 23 of the Charter raised by this appeal ...... 2 (B) The facts ...... 4
PART II – STATEMENT OF ISSUES ...... 6
PART III – STATEMENT OF ARGUMENT...... 7
I. What role does the power of management and control exercised by the Conseil play in determining whether the Rose-des-Vents school facility is substantively equivalent to English-language school facilities, for the purpose of determining whether the Rose-des- Vents school facility complies with s. 23? ...... 7 a. The remedial purpose of s. 23 of the Charter ...... 7
b. The role of the constitutional right to manage and control French-language education in a minority setting ...... 8 c. The role of the constitutional right to manage and control French-language education in British Columbia ...... 10 d. In this case, the Province distorts the constitutional power of management and control by using the existence of the Conseil as a shield to defend itself against the allegations regarding the Rose-des-Vents school facility ...... 11 e. The Court of Appeal for British Columbia seems to have accepted that it was not open to the petition judge to find that Rose-des-Vents is not substantively equivalent without first conducting an analysis of the responsibility of the Province and the Conseil (if any) ...... 20 II. How must a court assess the substantive equivalence of a minority French-language school facility to majority English-language school facilities, for the purpose of determining whether the French-language school facility complies with s. 23? ...... 22 a. The school facility must be substantively equivalent so that parents will not be dissuaded from enrolling their children in the French-language school for reasons related to the school facility ...... 22 b. In this case, the petition judge applied the correct test for assessing the substantive equivalence of the Rose-des-Vents school facility to the facilities of English- language schools ...... 23 1
c. The Province’s approach to comparing the Rose-des-Vents facility to the facilities of English-language schools fails to take into account the remedial nature of s. 23 of the Charter ...... 26 d. The petition judge applied the correct test in assessing the substantive equivalence of the Rose-des-Vents school facility to the facilities of the VSB schools west of Main Street ...... 30 III. The paragraphs struck by the petition judge were not relevant to the analysis of substantive equivalence required by s. 23 of the Charter ...... 32 PART IV – ARGUMENT REGARDING COSTS ...... 36
PART V – ORDER SOUGHT ...... 37
PART VI – LIST OF AUTHORITIES ...... 39
PART VII – LEGISLATION ...... 42
2
PART I – OVERVIEW AND FACTS
(A) Overview
1. This appeal raises two issues regarding the interpretation of section 23 of the Canadian Charter of Rights and Freedoms (“ Charter ”): first, what role does the power of management and control exercised by a French-language school board outside Quebec play in determining whether the minority French-language school facilities guaranteed by section 23 of the Charter are substantively equivalent to English-language school facilities, and second, how should a court assess the substantive equivalence of minority French-language school facilities?
Overview of the context in which École élémentaire Rose-des-Vents operates
2. The following outlines a few key facts regarding École élémentaire Rose-des-Vents (“Rose-des-Vents”), the French-language school at issue in this appeal. Rose-des-Vents is the only publicly funded French-language elementary school west of Main Street in Vancouver; it serves the entirety of this area.1 Like all French-language schools in British Columbia, it is operated by the Conseil scolaire francophone de la Colombie-Britannique (“Conseil”).
3. Rose-des-Vents provides education from kindergarten through grade 6. Rose-des-Vents accommodates a number of students that significantly exceeds its capacity. The Rose-des-Vents facility, which before it was inherited by the Conseil in 2001 housed an English-language school of the Vancouver School Board (“VSB”),2 has an operational capacity of fewer than 200 students. However, in the 2011-2012 school year, the school year during which the hearing that led to the first-instance judgment that is the subject of this appeal took place, 344 students were enrolled at Rose-des-Vents. There is therefore insufficient space at Rose-des-Vents for the students already enrolled there, much less the 500 students who, according to the petition judge,3 would already be enrolled if the current state of the school facilities did not constrain the increase
1 Affidavit no. 1 of Angéline Martel, Exhibits “A”, “B”, “C”, and “D”, APÉ Record, Vol. III, p. 178, Conseil Record, Vol. IV, p. 931 . 2 Note that the “Vancouver School Board” or “VSB”, the English-language school board that serves all of Vancouver, is also known as the “Vancouver Board of Education” or “VBE”, “Vancouver School District No. 39”, “School District No. 39”, or “SD 39”. The record contains references to the VSB under a number of these names. 3 All references to the “petition judge” in this factum are references to Mr. Justice Peter Willcock, the judge who was seized of the petition in this case during case management and during the hearing on the merits, and who wrote the judgment of October 31, 2012, which is the subject of this appeal. Mr. Justice Willcock was appointed to the Court of Appeal for British Columbia in 2013. in enrolment in Vancouver west of Main Street, not to mention the 710 eligible students in the catchment area.4
4. Due to the lack of space, Rose-des-Vents occupies several classrooms in École secondaire Jules-Verne. Two old portable classrooms and three new modular classrooms have also been installed on the crowded site. The site, which does not include a sports field, provides insufficient play space for the students at Rose-des-Vents. The Rose-des-Vents school building is overcrowded and many of the instructional spaces are of poor quality, as they have been converted temporarily in an attempt to respond, as well as possible, to the rapid increase in the number of students.
5. The question of the Charter -compliance of the Rose-des-Vents school facility is at issue, not only in this appeal, but also in the comprehensive action brought by the Conseil and its co- plaintiffs in the Supreme Court of British Columbia, regarding the system for capital funding of French-language schools in the province and the current state of the French-language school facilities serving several communities in the province, including Rose-des-Vents.5
Overview of the two issues regarding the interpretation of s. 23 of the Charter raised by this appeal 6. The Province’s defense to the petition brought by the Association des parents de l’École Rose-des-Vents and Joseph Pagé (the “APÉ”) distorts the power of management and control guaranteed to British Columbia’s French-language community. The Province is using the existence of the Conseil – which exercises the constitutional power to manage and control French-language education on behalf of the French-speaking community – as a shield to defend itself against the allegation that the school facilities at Rose-des-Vents are not substantively
4 Reasons of the petition judge of October 31, 2012, L’Association des parents de l’école Rose-des-vents v. Conseil scolaire francophone de la Colombie-Britannique , 2012 BCSC 1614, paras 41 and 127 [“Reasons of the petition judge of October 31 2012”], Record of the Appellants, Association des parents de l’école Rose-des-Vents and Joseph Pagé et al. (hereinafter “APÉ record”), Vol. I, page 86 . 5 The comprehensive action was also launched in 2010 (see the decision of the petition judge regarding costs: L’Association des parents de l’école Rose-des-vents v. Conseil scolaire francophone de la Colombie-Britannique , 2013 BCSC 1111, para. 4, APÉ record, Vol. I, p. 153 ). The trial of the comprehensive action began in December 2013 and is ongoing. This Court has already decided an interlocutory procedural issue in the comprehensive action: see Conseil scolaire francophone de la Colombie-Britannique v. British Columbia , 2013 CSC 42, [2013] 2 R.C.S. 774, Book of Authorities of the Appellant, Conseil scolaire francophone de la Colombie-Britannique (hereinafter “Conseil Authorities”), Tab 5 .
2 equivalent to those of the schools of the VSB west of Main Street in Vancouver, which compete with it, and that the facilities at Rose-des-Vents therefore do not comply with s. 23 of the Charter.
7. The Province uses the existence of the Conseil as a shield in two ways: by claiming that, because the Conseil exists, the state of the school facilities at Rose-des-Vents is the result of choices made by the Conseil, which, in the Province’s view, is an indication that such school facilities are adequate under s. 23 of the Charter; and by claiming that if the school facilities at Rose-des-Vents are inadequate, the fault lies with the Conseil and not the Province. According to the Province, it is not open to a court to conclude that the school facilities do not comply with s. 23 of the Charter without first determining which party is responsible for the state of the facilities. In so doing, the Province disregards the fundamental importance of the power of management and control, and the remedial purpose of s. 23 of the Charter.
8. It should be clear from the outset: to the extent that it arises, the issue of “responsibility” relates only to the question of what specific remedy is appropriate and just in the circumstances, and is irrelevant to determining whether the current state of the facilities breaches s. 23 of the Charter. In view of the very limited nature of the declaration requested by the APÉ in this case, the issue of “responsibility” did not arise before the petition judge.
9. In this case, the petition judge applied the correct test in determining that Rose-des-Vents is not substantively equivalent to the VSB schools that compete with it.
10. The test applied by the petition judge focused on the real choices faced by parents when choosing a school for their children: he considered all the VSB schools west of Main Street to be the appropriate comparators with reference to which he had to evaluate the school facilities at Rose-des-Vents. By adding to this analysis the criterion of “what is practical in the situation confronting all of the parties”, 6 the Court of Appeal ignored the importance of the substantive equivalence of French-language and English-language school facilities, as well as the remedial nature of s. 23 of the Charter.
6 Reasons of the Court of Appeal of September 20, 2013, L’Association des parents de l’école Rose-des-vents v. British Columbia (Minister of Education) , 2013 BCCA 407 para. 44 [“Reasons of the Court of Appeal”], APÉ Record, Vol. I, page 180 . 3
11. This Court should confirm the soundness of the approach adopted by the petition judge and the importance it accords to the substantive equality of French-language education and English- language education in British Columbia, guaranteed by s. 23 of the Charter.
(B) The facts
12. The vast majority of the facts are not contested. The Province has not appealed any of the petition judge’s findings of fact. It does not allege that palpable and overriding errors were committed. The petition judge made numerous findings of fact that the school facilities at Rose- des-Vents are inferior to those offered by the VSB west of Main Street, and that Rose-des-Vents is much less accessible than those English-language schools:
[…] The CSF has defined the catchment area to include all of Vancouver west of Main Street. The CSF is obliged to receive and register as students any child of a rights-holder living in that catchment area. Enrollment has grown and is growing. There is no available flexible space in the school. The library is very small. The washrooms are inadequate. The classrooms are significantly smaller than those in other schools. The hallways are narrow and there is no storage space. The playground is small and divided into small pieces. It is probable that the space made available to Rose-des-vents at Jules Verne will diminish in the coming years. Parents have moved to other schools because of crowding, inadequate facilities and long travel times.7 13. The many findings of fact made by the petition judge were based on an ample evidentiary record, including:
a) forty-four affidavits of teachers and administrators at Rose-des-Vents, officials of the Conseil, parents, expert witnesses – in the fields of sociolinguistics (notably regarding the number of children of parents with French as their mother tongue living in Vancouver west of Main Street) and history – and others, filed by the Conseil, totalling 1,688 pages, including exhibits;8 b) seventeen affidavits of parents filed by the APÉ, totalling 590 pages, including exhibits;9 and c) twenty-four affidavits of officials from the Ministry of Education of British Columbia and the Ministry of Finance of British Columbia, officials from several English-language school
7 Reasons of the petition judge of October 31, 2012, para. 137, APÉ Record, Vol. I, page 86 . 8 In paras. 36 to 40 of the reasons of the petition judge of October 31, 2012, the petition judge describes the evidence filed by the Conseil and the APÉ ; Table of contents of the petition record, Record of the Appelant, Conseil scolaire francophone de la Colombie-Britannique, (hereinafter “Conseil Record”), Vol. X, p. 2620 ; Table of contents of the supplementary petition record, Conseil Record, Vol. X, p. 2625 . 9 In paras. 36 to 40 of the reasons of the petition judge of October 31, 2012, APÉ Record, Vol. I, page 86 , the petition judge describes the evidence filed by the Conseil and the APÉ; Table of contents of the petition record, Conseil Record, Vol. X, p. 2620 ; Table of contents of the supplementary petition record, Conseil Record, Vol. X, p. 2625 . 4
boards in British Columbia, including the VSB, and others, filed by the Province, totalling 1,260 pages, including the exhibits.10 14. The petition judge made his numerous findings of fact after a very lengthy hearing on the merits: “[t]he hearing of the petition commenced on May 30, 2012, and continued for approximately five weeks. The parties submitted voluminous affidavit evidence and excerpts from transcripts of the examination of deponents under oath.” 11
15. Having identified the matter in issue before him – “whether, bearing in mind all of the facilities provided to them, a disparity exists between the facilities afforded to minority and majority language students”, the petition judge found that “[t]he evidence, in my view, clearly establishes such a disparity.” 12 The Province’s pleadings in this matter illustrate the fact that there was no misunderstanding regarding the actual matter in issue:
the court ordered that the Petition be heard in two phases: the first phase was to address whether the existing facilities and transportation at École Rose-des-Vents are sufficient to protect the rights guaranteed to s. 23 rights-holders in that catchment area; and the second phase of the Petition would address responsibility and remedies for any breach that might be found to exist.13 16. While the Province argued at first instance that French-language early childhood services such as a daycare and a preschool are a “misuse of resources that ought to be directed to ‘core services’”, 14 the petition judge found, to the contrary, that:
[t]he evidence is that where space permits Anglophone schools can devote space to the use of non- profit daycares and pre-schools. The evidence, further, is that most Anglophone schools have available space and many do offer that service. To deprive the Francophone school of the opportunity to make that service available to its students is to cause it to be less competitive with its Anglophone counterparts.15
10 In paras. 64 to 76 of the reasons of the petition judge of October 31, 2012, APÉ Record, Vol. I, page 86 , the petition judge describes the evidence filed by the Province; Table of contents of the petition record, Conseil Record, Vol. X, p. 2620 ; Table of contents of the supplementary petition record, Conseil Record, Vol. X, p. 2625 . 11 Reasons of the petition judge of October 31, 2012, para. 10, APÉ Record, Vol. I, page 86 . 12 Reasons of the petition judge of October 31, 2012, para. 144, APÉ Record, Vol. I, page 86 . 13 Province’s notice of application, May 28, 2012, para. 3, Conseil Record, Vol. 1, p. 1 . See also Province’s notice of application, June 8, 2012, para. 2, Conseil Record, Vol. I, p. 11 ; Province’s notice of application, June 12, 201, paras. 2 and 4, Conseil Record, Vol. I, p. 18 ; L’Association des parents de l’école Rose-des-Vents v. Conseil scolaire francophone de la Colombie-Britannique , 2012 BCSC 1206, paras. 22-28, APÉ Record, Vol. I, page 65 . 14 Reasons of the petition judge of October 31, 2012, para. 149, APÉ Record, Vol. I, page 86 . 15 Reasons of the petition judge of October 31, 2012, para. 149. 5
In any event, based on the evidence, the petition judge concluded: “I am of the view that facilities available to elementary students would compare unfavourably with most Anglophone schools in the VSB even if no use were made of classrooms for daycare or pre-school uses.” 16
17. As regards the accessibility of Rose-des-Vents, the petition judge found that:
given the evidence with respect to the facilities afforded to students at Rose-des-vents […] long travel times in this case are clearly not offset by superior facilities or programs, and that together with inadequate facilities, long travel times act as a disincentive to enrolment, preserve the status quo, and defeat the purposes of s. 23 of the Charter .17 18. In the end, the petition judge concluded that “I am satisfied, weighing all the evidence of the facilities made available to Francophone students in comparison with the facilities made available to Anglophone students, that the former are not equivalent to the latter. I am further satisfied that the disparity is such as to limit enrolment in the minority Francophone program and contribute to the assimilation which is sought to be avoided by s. 23.” 18
19. The Province appealed, alleging that the petition judge should have determined the issue of responsibility as between the Conseil and the Province before concluding that s. 23 had been breached, and that the Province should have had the opportunity to raise in its defence the state of school facilities throughout the province, exogamy, and the fact that parents withdraw their children from French-language schools for reasons other than the state of the school facilities.
20. The Court of Appeal allowed the appeal and ordered a new hearing.
PART II – STATEMENT OF ISSUES
21. What role does the power of management and control exercised by the Conseil play in determining whether the Rose-des-Vents school facility is substantively equivalent to English- language school facilities, for the purpose of determining whether the Rose-des-Vents school facility complies with s. 23? 22. How must a court assess the substantive equivalence of a minority French-language school facility to majority English-language school facilities, for the purpose of determining whether the French-language school facility complies with s. 23?
16 Reasons of the petition judge of October 31, 2012, para. 150. 17 Reasons of the petition judge of October 31, 2012, para. 157. 18 Reasons of the petition judge of October 31, 2012, para. 158. 6
PART III – STATEMENT OF ARGUMENT
I. What role does the power of management and control exercised by the Conseil play in determining whether the Rose-des-Vents school facility is substantively equivalent to English-language school facilities, for the purpose of determining whether the Rose-des-Vents school facility complies with s. 23? a. The remedial purpose of s. 23 of the Charter
23. As this Court has often emphasized, the starting point for any analysis of a constitutional right is the consideration of its underlying objective.19
24. In the case of s. 23 of the Charter, this Court ruled in Mahé that the purpose of s. 23 is “to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language flourishes, as far as possible, in provinces where it is not spoken by the majority of the population.” 20
25. Moreover, in both Mahé and in subsequent jurisprudence interpreting s. 23, this Court has emphasized above all that s. 23 of the Charter has a remedial purpose: “[a] further important aspect of the purpose of s. 23 is the role of the section as a remedial provision. It was designed to remedy an existing problem in Canada, and hence to alter the status quo.” 21 The very existence of s. 23 indicated the inadequacy of the system that preceded it.
26. Consequently, as this Court explained in Reference re Public Schools Act (Man.), s. 23 of the Charter must be interpreted “in recognition of previous injustices that have gone unredressed and which have required the entrenchment of protection for minority language rights.” 22
27. Similarly, this Court explained in Arsenault-Cameron that the “true purpose” of this section is that of “redressing past injustices and providing the official language minority with equal access to high quality education in its own language, in circumstances where community development will be enhanced.” 23
19 Hunter v. Southam Inc , [1984] 2 S.C.R. 145, paras. 16-20, Conseil Authorities, Tab 7 ; R c. Big M Drug Mart Ltd , [1985] 1 S.C.R. 295, p. 344, Conseil Authorities, Tab 13 . 20 Mahé v. Alberta , [1990] 1 S.C.R. 342, p. 362 [“ Mahé ”], APÉ Authorities, Tab 21 . 21 Mahé , p. 363, APÉ Authorities, Tab 21. 22 Reference re Public Schools Act (Man.), s. 79(3), (4) and (7) , [1993] 1 S.C.R. 839, pp. 850-851 [“ Reference re Public Schools Act (Man.) ”], Conseil Authorities, Tab 14 . 23 Arsenault-Cameron v. Prince Edward Island , 2000 SCC 1, para. 27, [2000] 1 S.C.R. 3, APÉ Authorities, Tab 4 . 7
28. Because of the remedial purpose of s. 23 of the Charter and the special nature of the rights protected by s. 23, it is particularly important that these rights be implemented without delay.24
b. The role of the constitutional right to manage and control minority French- language education in a minority setting 29. This Court recognized in Mahé that given the objective of s. 23 of the Charter, it necessarily includes the power to manage and control education in the minority official language, which power belongs to the minority official language community:
it is essential, in order to further this purpose, that, where the numbers warrant, minority language parents possess a measure of management and control over the educational facilities in which their children are taught. Such management and control is vital to ensure that their language and culture flourish. It is necessary because a variety of management issues in education, e.g., curricula, hiring, expenditures, can affect linguistic and cultural concerns. I think it incontrovertible that the health and survival of the minority language and culture can be affected in subtle but important ways by decisions relating to these issues. To give but one example, most decisions pertaining to curricula clearly have an influence on the language and culture of the minority students. 25 30. The management and control of minority official language education is all the more necessary since the historical context of such education in Canada clearly demonstrates that the majority is unable to respond adequately to the needs of the minority. As Chief Justice Dickson put it in Mahé:
Furthermore, as the historical context in which s. 23 was enacted suggests, minority language groups cannot always rely upon the majority to take account of all of their linguistic and cultural concerns. Such neglect is not necessarily intentional: the majority cannot be expected to understand and appreciate all of the diverse ways in which educational practices may influence the language and culture of the minority. In commenting on various setbacks experienced by the Francophone minority in Ontario, the Court of Appeal of that province noted that "[l]ack of meaningful participation in management and control of local school boards by the Francophone minority made these events possible" ( Reference Re Education Act of Ontario, supra, at p. 531). A similar observation was made by the Prince Edward Island Court of Appeal in Reference Re Minority Language Educational Rights (P.E.I.), supra, at p. 259: It would be foolhardy to assume that Parliament intended to . . . leave the sole control of the program development and delivery with the English majority. If such were the case, a
24 Doucet-Boudreau v. Nova Scotia (Minister of Education) , 2003 SCC 62, paras. 28-29, [2003] 3 S.C.R. 3, [“ Doucet-Boudreau ”], APÉ Authorities, Tab 17 . 25 Mahé, pp. 371-72, APÉ Authorities, Tab 21 . 8
majority language group could soon wreak havoc upon the rights of the minority and could soon render such a right worthless. I agree with the sentiments expressed in these statements. If section 23 is to remedy past injustices and ensure that they are not repeated in the future, it is important that minority language groups have a measure of control over the minority language facilities and instruction. 26 31. The specific issue addressed by this Court in Mahé was whether the appellants were entitled to a French-language school board in Edmonton that would manage French-language education. It was in order to answer that question that this Court set out the sliding scale approach, which recognizes that even where the number of students does not guarantee an independent French-language school board, parents are still entitled to a measure of management and control over French-language education.
32. More specifically, the power of management and control over French-language education guarantees control over “those aspects of education which pertain to or have an effect upon […] language and culture”, 27 This Court provided an initial, non-exhaustive indication of the scope of these “aspects of education” in Mahé , as follows:
(3) the minority language representatives should have exclusive authority to make decisions relating to the minority language instruction and facilities, including: a) expenditures of funds provided for such instruction and facilities; b) appointment and direction of those responsible for the administration of such instruction and facilities; c) establishment of programs of instruction; d) recruitment and assignment of teachers and other personnel; and e) the making of agreements for education and services for minority language pupils.28
33. In Arsenault-Cameron , this Court clarified the scope of this power – once again in a non- exhaustive way. In that case, this Court stressed that:
the right to management and control furthers the remedial goals of s. 23. Empowerment is essential to correct past injustices and to guarantee that the specific needs of the minority language community are the first consideration in any given decision affecting language and cultural concerns.29
26 Mahé, pp. 372 and 373, APÉ Authorities, Tab 21 . 27 Mahé, p. 375, APÉ Authorities, Tab 21 . 28 Mahé, p. 377 [emphasis added]. 29 Arsenault-Cameron, para. 45. 9
34. In Arsenault-Cameron , this Court found that the location of a French-language school is an aspect of education that contributes to the preservation and flourishing of the minority language community. It was open to the French-language school board in that case to establish as a priority that French-language education be offered in Summerside and not in another community; it was not open to the Minister of Education to refuse to establish such a school and to insist that students from Summerside travel to another community by school bus in order to study in French.30 This Court ruled that “[s]chool size, facilities, transportation and assembly of students […] have an effect on language and culture.” 31
c. The role of the constitutional right to manage and control French-language education in British Columbia 35. It was in the wake of this Court’s decision in Mahé that a number of jurisdictions recognized their obligation to establish and fund French-language school boards. However, in British Columbia, a legal challenge brought by the French-language community and a favourable ruling by the Supreme Court of British Columbia were required before the Province established the Conseil. 32 Moreover, it took a second legal challenge for the Province to give the Conseil jurisdiction over French-language education throughout British Columbia, rather than leaving the management and control of that education in a large portion of British Columbia in the hands of English-language school boards.33 This historical context partially illustrates the “past injustices” that s. 23 of the Charter seeks to redress in British Columbia, as does the history of French- language education in Vancouver prior to the enactment of the Charter in 1982.34
36. In Association des parents francophones v. British Columbia (1996), Justice Vickers found that the system that existed in the 1990s in British Columbia did not meet the Province’s obligations under s. 23 of the Charter, and that this system placed unacceptable limitations on the power of management and control guaranteed to the French-language community. In
30 Arsenault-Cameron, paras. 47-51. 31 Arsenault-Cameron, para. 53. 32 Association des parents francophones v. British Columbia (1996), 27 B.C.L.R. (3d) 83 (S.C.), Conseil Authorities, Tab 1 . 33 Association des parents francophones v. British Columbia (1998), 61 B.C.L.R. (3d) 165 (S.C.), Conseil Authorities, Tab 2 . Justice Vickers explained in para. 10 of this judgment that initially, the Conseil’s territory was limited to Vancouver, the Lower Mainland and Victoria; he explained in para. 14 when and how the Province extended the Conseil’s jurisdiction to the entirety of the province. 34 Affidavit # 1 of Nicolas Kenny, APÉ Record, Vol. III, p. 1 . 10 determining what level of management and control was required, Justice Vickers wrote in 1996 that “[u]sing the ‘sliding scale’ approach mandated by the Supreme Court of Canada in Mahe , I have concluded that in this case the numbers warrant the maximum level of management and control necessary to preserve language and culture in the proposed area.” 35
37. The Conseil exercises the right to manage and control French-language education in British Columbia. In particular, it is the Conseil that sets the priorities of the French-language community in Vancouver west of Main Street, a determination that “[lies] at the core of the management and control conferred on the minority language rights holders and their legitimate representatives by s. 23.”36
38. Of course, in regulating the education offered in British Columbia the Province “can impose appropriate programs in so far as they do not interfere with the legitimate linguistic and cultural concerns of the minority”.37 However, this Court has made clear that “[s]chool size, facilities, transportation and assembly of students can be regulated, but all have an effect on language and culture and must be regulated with regard to the specific circumstances of the minority and the purposes of s. 23.” 38
39. The Province must take s. 23 into account when dealing with any issue relating to the Conseil’s school facilities, and must take into account the priorities of the French-language community, as established by the Conseil.
d. In this case, the Province distorts the constitutional power of management and control by using the existence of the Conseil as a shield to defend itself against the allegations regarding the Rose-des-Vents school facility 40. In this case, in defending the petition brought by the APÉ, the Province is using the existence of the Conseil – which exercises the power of management and control over French- language education on behalf of the French-language community 39 – as a shield to defend itself
35 Association des parents francophones v. British Columbia (1996), para. 47, Conseil Authorities, Tab 1 . 36 Arsenault-Cameron, para. 51, APÉ Authorities, Tab 4 . 37 Arsenault-Cameron, para. 53, APÉ Authorities, Tab 4 . 38 Arsenault-Cameron, para. 53 [emphasis added], APÉ Authorities, Tab 4 . 39 This Court has repeatedly noted that while the rights conferred by s. 23 of the Charter are of an individual nature, they nonetheless have a collective aspect. Notably, in Solski (Tutor of) v. Quebec (Attorney General) , 2005 SCC 14, [2005] 1 S.C.R. 201, para. 23 [“ Solski ”], Conseil Authorities, Tab 16 , this Court ruled that the rights conferred by s. 23 of the Charter are above all “individual rights in favour of persons belonging to specific categories of rights holders”, but they still have a collective aspect, since the application of s. 23 “will of necessity affect the future of 11 against the allegation that the Rose-des-Vents school facility is not substantively equivalent to the facilities of the VSB west of Main Street in Vancouver, which compete with it, and that the Rose-des-Vents school facility therefore does not in comply with s. 23 of the Charter. In so doing, the Province distorts the power of management and control – granted by s. 23 of the Charter to enable minority official language communities to change the status quo – and attempts to use it against the French-language community.
41. The Province uses the existence of the Conseil as a shield by claiming that, because the Conseil exists, the state of the school facilities at Rose-des-Vents is a result of choices made by the Conseil.40 Consequently, in the Province’s view, this is a further indication that those school facilities are adequate under s. 23 of the Charter,41 as well as an indication that, if the school facilities at Rose-des-Vents are inadequate, the fault lies with the Conseil and not with the Province.42 According to the Province, it is not open to a court to find that the school facilities do not comply with s. 23 of the Charter without first determining which party is responsible for the state of the facilities.43
42. It would be completely incompatible with the Conseil’s longstanding position regarding the inadequacy of the school facilities at Rose-des-Vents, as well as the evidentiary record in this case, to claim that the current situation in Vancouver west of Main Street is acceptable because it is a result of decisions made by the Conseil. The Conseil has always taken the position that the school facilities at Rose-des-Vents do not comply with s. 23 of the Charter.
43. The evidentiary record clearly showed that the Conseil had for years held the view – and communicated to the Province – that the school building occupied by Rose-des-Vents must be
minority language communities”. Similarly, in Doucet-Boudreau , para. 28, APÉ Authorities, Tab 17 , this Court found that “While the rights are granted to individuals, they apply only if the ‘numbers warrant’, and the specific programs or facilities that the government is required to provide varies depending on the number of students who can potentially be expected to participate. This requirement gives the exercise of minority language education rights a unique collective aspect even though the rights are granted to individuals.” [References omitted.] 40 Reasons of the petition judge of October 31, 2012, para. 4, APÉ Record, Vol. I, p. 86 . 41 As an example, see: Province’s written argument on the merits before the petition judge, June 5, 2012, paras. 225 and 226, Conseil Record, Vol. X, p. 2548 . 42 Amended Response of the Minister of Education of British Columbia and the Attorney General of British Columbia, March 11, 2011, paras. 22 and 83-91 [“Province’s amended response to the motion”], APÉ Record, Vol. II, p. 37 . 43 Reasons of the petition judge in a related proceeding: L’Association des parents de l’école Rose-des-vents v. Conseil scolaire francophone de la Colombie-Britannique , 2013 BCSC 1243, para. 33, Conseil Authorities, Tab 8. 12 replaced.44 The evidentiary record also clearly showed that the Conseil had determined that the school building occupied by Rose-des-Vents must be replaced by two new school buildings on two new sites, one located between Main Street and Granville Street, and the other located west of Granville Street in Vancouver. 45 Moreover, nine months before the Province filed its first substantive response to the APÉ’s petition, the Conseil, along with its co-plaintiffs, had pleaded in the comprehensive action that the state of the facilities at Rose-des-Vents, including their accessibility, does not comply with s. 23 of the Charter.46
44. The Province was thus well aware, when it defended the petition brought by the APÉ, that in determining that Rose-des-Vents must be replaced by two new schools on two new sites, one between Main Street and Granville Street, and the other west of Granville Street,47 the Conseil had made exactly the same kind of decision regarding Rose-des-Vents that the Commission scolaire de langue française de l’Île-du-Prince-Édouard had made in Arsenault- Cameron by determining that French-language education had to be offered in Summerside – the type of decision the Province must adequately take into account due to the major impact it has on language and culture.
45. Just as the Commission scolaire de langue française de l’Île-du-Prince-Édouard was entitled to determine that a French-language school was required in Summerside because parents had the option of sending their children to more accessible English-language schools than the existing French-language school and as a result of the transportation time to that school “many of the s. 23 children were discouraged from attending the minority language school”, 48 the Conseil is entitled to determine that the school facilities at Rose-des-Vents have a deterrent effect and
44 Affidavit #1 of Guy Bonnefoy, paras. 21 to 26, Conseil Record, Vol. X, p. 2381 ; Affidavit #4 of Luc Morin, paras. 7 to 11, APÉ Record, Vol. III, p. 134 . 45 Affidavit #4 of Sylvain Allison, paras. 78 and 85, APÉ Record, Vol. III, p. 179 ; moreover, the Province’s evidence confirmed that the Province knew that the Conseil had requested, through the education capital funding system, since the submission of its 2010-2011capital plan, the funding required to build two new elementary schools west of Main Street in Vancouver, and that the previous year the Conseil had requested the funding required to build one new elementary school west of Main Street in Vancouver (Affidavit #1 of Doug Stewart, Exhibit “D”). 46 The comprehensive action was launched in 2010 (see the decision of the petition judge regarding costs: L’Association des parents de l’école Rose-des-vents v. Conseil scolaire francophone de la Colombie-Britannique , 2013 BCSC 1111, para. 4, APÉ Record, Vol. I, p. 153 ); the Province’s first substantive response to the petition was filed on March 11, 2011 (see the Province’s amended response to the petition). 47 Affidavit #4 of Sylvain Allison, paras. 78 and 85, APÉ Record, Vol. III, p. 179 ; Affidavit #1 of Doug Stewart, exhibit ‘D’, Conseil Record, Vol. I, p. 251 . 48 Arsenault-Cameron, para. 50, APÉ Authorities, Tab 4 . 13 must be replaced by two new schools, one between Main and Granville Streets and the other west of Granville Street.
46. As this Court noted in Arsenault-Cameron , “[s]ection 23 is premised on the fact that substantive equality requires that official language minorities be treated differently, if necessary, 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.”49 In Arsenault-Cameron , “[w]hat made sense to the minority language community and its Board did not make sense to the Minister because pedagogical needs were not understood in the same way.”50 This Court found that it was the French-language school board that could determine the impact of school facilities – in that case their location – on the French-language community, and the Province had to give effect to that determination.51 After all,
the s. 23 standard is not neutral but favours community development. […] s. 23 was intended in part to protect the minority against the effect of measures adopted to suit the needs of the majority. It is therefore clear that minority language parents and their representatives are in the best position to identify local needs when it comes to defining the relevant areas.52 47. In this case, the Conseil is of the same opinion as the APÉ with regard to the lack of substantive equivalence of the school facilities at Rose-des-Vents, and the Conseil has determined that Rose-des-Vents’ catchment area must be divided in two and must be served by two new schools on new sites. However, the Conseil does not have the means necessary to solve this problem of substantive equivalence, as a result of the Province’s total control over funding under British Columbia’s system for funding capital projects in education.53 Under this system, the Conseil may report problems and identify solutions – which it has done on numerous occasions regarding Rose-des-Vents – but it does not have the financial means to deal with these problems.
48. What then should be made of the Province’s position that the problems at Rose-des- Vents, if there are any, are the fault of the Conseil and not of the Province, and that it is not open to the Supreme Court of British Columbia to rule that the school facilities at Rose-des-Vents do
49 Arsenault-Cameron, para. 31, APÉ Authorities, Tab 4 .. 50 Arsenault-Cameron, para. 49, APÉ Authorities, Tab 4 . 51 Arsenault-Cameron, paras. 49 to 58 APÉ Authorities, Tab 4 . 52 Arsenault-Cameron, para. 57, APÉ Authorities, Tab 4 . 53 Various aspects of this system are explained in Affidavit #1 of Doug Stewart, Affidavit #1 of Reg Bawa, APÉ Record, Vol. II, p. 135 and Affidavit #1 of Guy Bonnefoy, Conseil Record, Vol X, p. 2381 . 14 not comply with s. 23 of the Charter without first determining who is responsible for the lack of substantive equivalence at Rose-des-Vents?
49. To the extent that it arises, the issue of “responsibility” is solely related to determining which specific remedy is appropriate and just in the circumstances. The Province’s position runs counter to the general approach of this Court regarding the determination of responsibility for a breach of the Charter, according to which the Charter “does not require that the impugned government action or law be the only or the dominant cause of the prejudice suffered by the claimant”. 54 Given the very limited nature of the declaration sought by the APÉ in this case – which required that the petition judge determine “whether existing instruction and facilities are in fact equivalent to instruction and facilities afforded to similarly situated majority language students”, 55 the issue of responsibility simply does not arise.
50. In other words, a detailed examination of who did what, in order to determine why the current situation exists, could be (but is not necessarily) related to the determination of a remedy under s. 24(1) of the Charter, but in this case, the APÉ was not asking for a concrete remedy aside from a general declaration, and the issue is therefore simply not relevant.
51. Moreover, by claiming that it is impossible to conclude that the school facilities at Rose- des-Vents do not comply with s. 23 of the Charter without first deciding the issue of “responsibility” for their condition, the Province attempts to introduce into the analysis of substantive equivalence under s. 23 of the Charter a fault element that is completely foreign to the jurisprudence interpreting s. 23 and that is completely incompatible with the remedial nature of that section.56
52. This approach ignores the purpose of s. 23 of the Charter as well as the existence and constitutional mission of the Conseil. Rose-des-Vents exists in order to change the status quo west of Main Street in Vancouver; in other words, to stop the assimilation – the loss of the French language and culture – that would otherwise be inevitable in this area (and that exists
54 Canada (Attorney General) v. Bedford , 2013 SCC 72, para. 76, [2013] 3 S.C.R. 1101, Conseil Authorities, Tab 4. 55 Reasons of the petition judge of October 31, 2012, para. 8(b), APÉ Record, Vol I, p. 86 . 56 Province’s amended response to the petition, para. 22, APÉ Record, Vol II, p. 37 . 15 historically in this area), 57 and to ensure the survival and flourishing of the French-language community.
53. The Conseil exists in order to enable Rose-des-Vents, and the other French-language schools in British Columbia, to fulfil this linguistic and cultural mission.
54. For its part, the Province has the constitutional obligation to adequately fund the Conseil and Rose-des-Vents, and to offer any further assistance required to ensure that they are able to fulfil their linguistic and cultural mission.58 Indeed, s. 23 of the Charter “places positive obligations on governments to mobilize resources and enact legislation for the development of major institutional structures”59 and contains an “affirmative promise” that requires “timely compliance”. 60 As this Court held in Arsenault-Cameron , “[t]he province has the duty to actively promote educational services in the minority language and to assist in determining potential demand.” 61
55. By claiming that the quality of the school facilities cannot be considered without first evaluating the history of the choices made by the Province and the Conseil, the Province (which has a duty to fulfil the affirmative promise contained in s. 23 of the Charter), puts forth a position that would have the effect – paradoxical to say the least – of drawing out and making more arduous and difficult the task of establishing that the school facilities at Rose-des-Vents do not comply with s. 23 of the Charter , because the French-language community benefits from the
57 Affidavit #1 of Nicolas Kenny, APÉ Record, Vol III, p. 1 . 58 This Court clearly explained, in para. 38 of Doucet-Boudreau , that the French-language school board in question in that case – the Conseil scolaire acadien provincial – was created for the “fulfilment of the Province’s s. 23 obligations”. None of the reasons put forward by the government of Nova Scotia “as reasons for its decision to place the previously announced school construction projects on hold pending cost-benefit reviews”, including “lack of funds”, “justified the government’s failure to fulfill its obligations under s. 23 .”: Doucet-Boudreau, para. 39, APÉ Authorities, Tab 17 . 59 Doucet-Boudreau, para. 28, APÉ Authorities, Tab 17 ; Mahé, p. 389, APÉ Authorities, Tab 21 . 60 Doucet-Boudreau, para. 29, APÉ Authorities, Tab 17 , citing, as examples of cases in which the need for timely compliance with this affirmative promise required “courts to order affirmative remedies to guarantee that language rights are meaningfully, and therefore necessarily promptly, protected”: Marchand v. Simcoe County Board of Education (1986), 29 D.L.R. (4th) 596 (Ont. H.C.) (QL) [« Marchand »], APÉ Authorities, Tab 22 ; Marchand v. Simcoe County Board of Education (No. 2) (1987), 44 D.L.R. (4th) 171 (Ont. H.C.), Conseil Authorities, Tab 11 ; Lavoie v. Nova Scotia (Attorney-General) (1988), 47 D.L.R. (4th) 586 (N.S.S.C.T.D.), Conseil Authorities, Tab 9 ; Conseil des écoles séparées catholiques romaines de Dufferin et Peel v. Ontario (Ministre de l’Éducation et de la Formation) (1996), 136 D.L.R. (4th) 704 (Ont. Ct. (Gen. Div.)), aff’d (1996), 30 O.R. (3d) 681 (C.A.), APÉ Authorities, Tabs 11 and 12 ; Conseil scolaire fransaskois de Zénon Park v. Saskatchewan , [1999] 3 W.W.R. 743 (Sask. Q.B.), aff’d [1999] 12 W.W.R. 742 (Sask. C.A.), APÉ Authorities, Tabs 13 and 14 ; Assoc. française des conseils scolaires de l’Ontario v. Ontario (1988), 66 O.R. (2d) 599 (C.A.), Conseil Authorities, Tab 3 ; Association des parents francophones v. British Columbia (1998), Conseil Authorities, Tab 2 . 61 Arsenault-Cameron, para. 34, APÉ Authorities, Tab 4 . 16 highest level of management and control over French-language education possible – management by its own French-language school board.
56. In other words, according to the Province, because the community benefits from this highest level of management and control, the Province can defend itself, first of all, by attempting to blame the Conseil for a breach of s. 23, and a court must necessarily decide who is responsible for the breach before being able to rule on the adequacy of the school facility under s. 23, even where the remedy requested is no more than a simple declaration that the school facility of the French-language minority is not substantively equivalent to those of the majority.
57. This approach does not withstand scrutiny and does violence to s. 23 of the Charter . It runs counter to the jurisprudence of this Court regarding the objectives of s. 23 and to the constitutional right to manage and control French-language education outside Quebec. Moreover, this position runs counter to the Province’s duty to take into account the particular vulnerability of the rights protected by s. 23 to government inaction and delay, explained by this Court in paragraphs 28 and 29 of Doucet-Boudreau .
58. This Court should confirm that in this case the constitutional right to management and control exercised by the Conseil can in no way be used by the Province as a defence in response to the question of whether the school facilities at Rose-des-Vents are substantively equivalent to those of the VSB west of Main Street, as required by s. 23. On the contrary, the Province has a duty to take into account the fact that the Conseil, which exercises the right of management and control in British Columbia, has determined that the school facilities at Rose-des-Vents do not comply with s. 23 of the Charter and do not allow the Conseil to fulfil its linguistic and cultural mission west of Main Street in Vancouver. As this Court has recognized in other provinces in Arsenault-Cameron and Doucet-Boudreau , the Conseil is better placed than Ministry of Education officials to determine the impact of school facilities on the preservation and development of the French language and culture:62
Where a minority language board has been established in furtherance of s. 23, it is up to the board, as it represents the minority official language community, to decide what is more appropriate from a cultural and linguistic perspective. The principal role of the Minister is to develop institutional
62 Arsenault-Cameron, paras. 49 to 58, APÉ Authorities, Tab 4 ; Doucet-Boudreau, paras. 38 and 39, APÉ Authorities, Tab 17 . 17
structures and specific regulations and policies to deal with the unique blend of linguistic dynamics that has developed in the province.63 59. If the circumstances were different and the Conseil had determined that the school facilities at Rose-des-Vents were substantively equivalent to those of the English-language schools that compete with it, and therefore that they comply with the Charter, that determination would be relevant to an analysis of the compliance of school facilities with the Charter ’s requirements. But the reality is the exact opposite of that hypothetical situation: in this case, the Conseil has determined and has been advising the Province – for a long time – that the school facilities at Rose-des-Vents are not at all equivalent and do not comply with the Charter . The Province must give this determination all the weight it deserves as a decision resulting from the exercise of the constitutional power to manage and control French-language education. The Conseil is very simply in a better position to decide what is most appropriate from a cultural and linguistic perspective, particularly as regards school facilities, including their quality and location.
60. Instead of taking into account the Conseil’s determination, the Province has attempted, in this case, to use the minority’s power of management and control as a means to escape its constitutional responsibility, and in so doing, it has caused precisely the kind of delay against which this Court has already warned the provinces and territories.
61. The Province chose this route instead of giving due deference to the Conseil’s determination that the Rose-des-Vents school facility is inadequate, and that two new facilities must be built in Vancouver west of Main Street, just as the Minister of Education of Prince Edward Island was required to give full weight to the judgment of the Commission scolaire de langue française de l’Île-du-Prince-Édouard regarding the need to provide French-language education in Summerside, as explained by this Court in Arsenault-Cameron . This is all the more important in this case given that the Conseil depends on the Province for the financial means necessary to address the major gap in the quality and accessibility it has identified regarding the Rose-des-Vents school facility, just as the Commission scolaire de langue française de l’Île-du-
63 Arsenault-Cameron, para. 43, APÉ Authorities, Tab 4 . 18
Prince-Édouard depended on the province of Prince Edward Island for the funding necessary to establish a French-language school in Summerside.64
62. It is essential that this Court clarify the law on this issue as the Province appears to have misread the jurisprudence of this Court relating to s. 23 of the Charter . In its written argument on the merits before the petition judge, the Province argued that “[t]he Province takes no issue with the position that s. 23 is remedial. However, it would be an error to view its remedial nature as its sole, or even primary, aim.” 65
63. Although the statement is obvious, based on the entire body of this Court’s jurisprudence interpreting s. 23 of the Charter, the history of this appeal clearly indicates that this Court should affirm that the analysis of the substantive equivalence of French-language school facilities to the facilities of majority English-language schools in no way includes a fault element.
64. This statement is obvious because a contrary conclusion would run counter to the very purpose of s. 23 of the Charter. The courts’ scrutiny of the implementation of s. 23 of the Charter seeks to ensure that the provinces and territories take the concrete measures required to safeguard the rights guaranteed by s. 23. The purpose of this scrutiny is clearly not simply to punish acts of bad faith or deliberate violations of s. 23, but rather to ensure that jurisdictions responsible for education fully take into account the affirmative promise of s. 23 of the Charter .
65. To take just one example, in Arsenault-Cameron , the issue was whether it was sufficient under s. 23 of the Charter to offer French-language education to the residents of Summerside from a school located in another community, namely École Évangeline in Abram’s Village, nearly 30 km from Summerside.66 In connection with this issue, it was in no way relevant to know whether it was possible to assign any “fault” to the Minister of Education of Prince Edward Island or the Commission scolaire de langue française de l’Île-du-Prince-Édouard. Indeed, the Minister had made the contested decision “[b]ecause [he] did not think that programs delivered by the seven small schools that had between 55 and 83 students were pedagogically beneficial”. The fact remains that the Minister’s decision was overturned, because his refusal to
64 School Act , R.S.P.E.I. 1988, c. S-2.1, s. 128, as cited in Arsenault-Cameron, para. 7, APÉ Authorities, Tab 4 . 65 The Province’s written argument on the merits before the petition judge, June 5, 2012, para. 69, Conseil Record, Vol. X, p. 2548 . 66 Arsenault-Cameron, para. 2, APÉ Authorities, Tab 4. 19 approve the establishment of a small French-language school in Summerside “was depriving French language students of equal access to quality education in their own language”. 67
e. The Court of Appeal for British Columbia seems to have accepted that it was not open to the petition judge to find that Rose-des-Vents is not substantively equivalent without first conducting an analysis of the responsibility of the Province and the Conseil (if any) 66. The Court for Appeal for British Columbia seems to have accepted the Province’s erroneous theory by ruling that it was not open to the petition judge to find that the school facilities at Rose-des-Vents are not equivalent to those of English-language schools west of Main Street without also deciding the question of the responsibility of the Province and the Conseil (if any). This conclusion of the Court of Appeal is wrong in law.
67. The parties understood what the petition judge intended to decide in his judgment of October 31, 2012, and understood that it was not necessary to consider the responsibility of the Province and the Conseil (if any) for the current state of the school facilities at Rose-des-Vents 68 . As the petition judge explained:
[…] The petitioners seek to advance the cause of their children, if possible, without bearing the burden of establishing responsibility for the alleged inadequacies. … […] The petitioners therefore applied for and obtained leave to amend the petition to delete the challenge to specific funding decisions brought pursuant to the Judicial Review Procedure Act and to limit the prayer for relief to a declaration that existing facilities do not meet the standard mandated by the Charter and an order that the court retains jurisdiction to later address any claim for further relief. The petitioners were content that the remedy for any shortcoming would rest, in the first instance, in the hands of government. They would seek further relief from the court only in the event of inactivity on the part of government in the face of a declaratory judgment. With a view toward an efficient resolution of the claim, bearing in mind the direction in Doucet- Boudreau v. Nova Scotia (Minister of Education) , 2003 SCC 62, [2003] 3 S.C.R. 3 [ Doucet- Boudreau ], that allegations of infringements of s. 23 Charter rights should be addressed promptly, so as to minimize the effect of assimilation during protracted proceedings, I held, at para. 72 of my reasons [of November 4 2011 (2011 BCSC 1495)]:
67 Arsenault-Cameron, para. 48, APÉ Authorities, Tab 4. 68 Province’s notice of application, May 28, 2012, para. 3, Conseil Record, Tab 1 . See also Province’s notice of application, June 8, 2012, para. 2, Conseil Record, Tab 2 ; Province’s notice of application, June 12, 2012, paras. 2 and 4, Conseil Record, Tab 3 ; L’Association des parents de l’école Rose-des-Vents v. Conseil scolaire francophone de la Colombie-Britannique , 2012 BCSC 1206, paras. 22-28, APÉ Record, Vol. I, p. 65 . 20
... on the hearing of the petition the Court will first address only the issue of whether the existing facilities and transportation afforded to the children of rights holders in the Roses des vents catchment area are sufficient to protect the rights guaranteed to their parents under s. 23 of the Charter . That order now requires me to consider the two questions described in the November 4, 2011, judgment: a) whether the rights-holders can establish their numbers warrant instruction and facilities; and b) whether existing instruction and facilities are in fact equivalent to instruction and facilities afforded to similarly situated majority language students.69 68. In his reasons of November 4, 2011, in which the petition judge granted the APÉ’s application to proceed only with the issue of the adequacy of the school facilities at Rose-des- Vents – after the APÉ repeatedly stated to the Court that it had no intention of entering into a legal debate of any kind regarding who was responsible for the lack of substantive equivalence – the petition judge held:
[…] I conclude that I should exercise my discretion to order that the petitioners’ claim that their facilities and transportation are inadequate to protect their Charter rights, should be heard before considering responsibility or remedies for such breach as may be found to exist. Accordingly, I order that on the hearing of the petition the Court will first address only the issue of whether the existing facilities and transportation afforded to the children of rights holders in the Roses des Vents catchment area are sufficient to protect the rights guaranteed to their parents under s. 23 of the Charter .70 69. The Court of Appeal for British Columbia overturned the judgment of October 31, 2012, ruling that:
[t]he effect of the judge’s disposition of the first phase of the hearing of the Petition was to unfairly preclude the Province from ever having an opportunity to obtain all of the evidence it wished to pursue to support its defence that any disparity in the facilities did not amount to a breach of the Parents’ s. 23 Charter rights through the discovery process that he set, or to present expert evidence with respect thereto.71 70. The conclusion of the Court of Appeal seems to indicate that it accepts the Province’s premise that the lack of substantive equivalence at Rose-des-Vents does not constitute a
69 Reasons of the petition judge of October 31, 2012, paras. 4, 6, 7 and 8, APÉ Record, Vol. I, p. 86 . 70 L’Association des parents de l’école Rose-des-Vents v. Conseil scolaire francophone de la Colombie-Britannique , 2011 BCSC 1495, para. 72, APÉ Record, Vol. I, p. 35 . 71 Reasons of the Court of Appeal, para. 54, APÉ Record, Vol. I, p. 180 . 21 constitutional problem, since the petition judge did not draw any conclusion with regard to the “responsibility” for this lack of substantive equivalence.
71. This Court should reaffirm the correct interpretation of the law, namely, that the critical constitutional role played by the Conseil cannot be distorted by the Province in order to cause a delay and prevent a court from ruling on the lack of substantive equivalence at Rose-des-Vents and the breach of s. 23 of the Charter that necessarily results from it.
II. How must a court assess the substantive equivalence of a minority French- language school facility to majority English-language school facilities, for the purpose of determining whether the French-language school facility complies with s. 23? a. The school facility must be substantively equivalent so that parents will not be dissuaded from enrolling their children in the French-language school for reasons related to the school facility 72. As the petition judge correctly stated in his judgement of October 31, 2012, it is clear, based on the jurisprudence interpreting s. 23 of the Charter, and based on the remedial purpose of s. 23, that the facility of a French-language school outside Quebec must be substantively equivalent to the facilities of the English-language schools (including schools offering a French immersion program)72 that compete with it:
[i]mplicit in Arsenault-Cameron , Dufferin et Peel and Mahe is the view that the level of instruction and facilities afforded to minority language students must be equivalent to the Anglophone facilities available to students in the same district. That stands to reason given the remedial purpose of s. 23 of the Charter . The risk of assimilation will not be reduced by the establishment of instruction or facilities that bear no relationship to the instruction and facilities which might otherwise be selected by the rights-holders for their children.73
72 In Solski, Conseil Authorities, Tab 16 , para. 50, this Court explained the difference between immersion and French-language education as follows: Outside Quebec, immersion programs are designed to provide second language training to children attending schools designed for those adopting the language of the majority. Immersion programs occur in a majority setting where the majority language is spoken in the corridors and during extra-curricular activities. Immersion programs are run in majority schools that are a part of the majority school system. As a result, immersion programs lack the cultural element that is vital to minority language education, as discussed in Mahe . There, this Court insisted on the need to identify schools with the minority in coming to the decision that s. 23 guaranteed the right to management to representatives of the minority. Therefore, while there is nothing in the language of s. 23(2) that strictly restricts the nature of the instruction, it would be contrary to the purpose of the provision to equate immersion with minority language education. 73 Reasons of the petition judge of October 31, 2012, para. 99, APÉ Record, Vol. I, p. 86 . 22
73. Indeed, it is obvious that in order to be able to fulfil its mission, namely to ensure the survival and flourishing of the French-language community, a French-language school must have facilities that do not discourage parents from enrolling their children at that school. In fact, this Court recognized explicitly, and not just implicitly, in Arsenault-Cameron , that school facilities can discourage parents from enrolling their children at the French-language school.74 As noted above, in Arsenault-Cameron , it was the level of accessibility of the facility located in Abram’s Village that was unacceptable, because it had the effect of discouraging parents living in Summerside from enrolling their children at the school.
74. It is for this reason that the Conseil is of the view that the test applicable to the analysis of the substantive equivalence of a French-language school’s facility to those of the majority English-language schools that compete with it can be summarized simply in the following question: does the French-language school’s facility have the effect of discouraging a reasonable parent from enrolling his or her child at the school? If the answer is yes, the facility of the French-language school is not substantively equivalent and therefore does not comply with s. 23 of the Charter .
b. In this case, the petition judge applied the correct test for assessing the substantive equivalence of the Rose-des-Vents school facility to the facilities of English-language schools 75. In this case, the petition judge applied the correct test in determining that Rose-des-Vents is not substantively equivalent to the VSB schools that compete with it.
76. The test applied by the petition judge was centred on the real choices faced by parents when they choose a school for their children. The petition judge considered the 36 English- language schools in the catchment area of École Rose-des-Vents to be the appropriate comparators against which he had to evaluate the school facilities at Rose-des-Vents. The petition judge’s approach, like the approach of this Court in Arsenault-Cameron , was driven by the objective of substantive equality between the two school systems, between which members of the minority language community must choose, as well by a consideration of the major deterrent effect which is caused by an absence of substantive equivalence among the school facilities.
74 Arsenault-Cameron, paras. 50 and 51, APÉ Authorities, Tab 4 . 23
77. By centring his analysis on the real choices faced by parents, the petition judge adopted the approach of other Canadian courts that have evaluated the substantive equivalence of French- language school facilities, namely, comparing the French-language school in question with the English-language schools to which parents who can enroll their children at the French-language school could realistically send their children. In other words, the petition judge compared Rose- des-Vents to other schools located in the relevant area of Vancouver, and not to rural schools in northeastern British Columbia, as the Province urged him to do.75
78. Like this case, the Yellowknife case involved comparing the school facility of an existing French-language school (École Allain St-Cyr (“ÉASC”)) to those of English-language schools. In Yellowknife , Justice Charbonneau found that “[t]he fundamental question the Court must answer about ÉASC’s current infrastructure is whether this infrastructure is adequate for providing the students who attend the school with substantive equality with the students of the English linguistic majority.” 76
79. As in this case, the plaintiffs and the territorial government in Yellowknife did not agree on the relevant point of comparison: “[t]he Plaintiffs submit that the point of comparison should be Yellowknife’s English schools. The Defendants argue that this would be an error since the English schools have a much greater number of students than ÉASC. In their opinion, ÉASC should be compared with schools, in the NWT or elsewhere, with a comparable number of students.” 77
80. Like the petition judge in this case, Justice Charbonneau found that, given the objectives of s. 23 of the Charter, a comparison of a local nature is required:
The reality in Yellowknife is that students of the French linguistic minority have a choice between frequenting ÉASC or a school of one of the two English school boards. This is how the issue presents itself to them. The parents and their children do not have to choose between ÉASC and Kalemi Dene School, or between ÉASC and the schools of Norman Wells, Inuvik, Paulatuk or Kakisa. Nor do they have to choose between ÉASC and a French school in Alberta or Saskatchewan. Any comparison with these schools is completely divorced from reality and the options the members of the minority community actually have.
75 As an example of evidence filed by the Province regarding schools that are very far from Rose-des-Vents and in very different contexts and communities, see Affidavit #1 of Larry Espe (Peace River North), Conseil Record, Vol. V, p. 1182 . 76 Association des Parents ayants droit de Yellowknife et al. v. Attorney General of the Northwest Territories et al., 2012 NTWSC 43, para. 578 [“Yellowknife ”], APÉ Authorities, Tab 5. 77 Yellowknife, para. 579, APÉ Authorities, Tab 5. 24
Consequently, the main comparator in the analysis of the adequacy of ÉASC’s infrastructure must be the schools of Yellowknife’s Anglophone majority, because they represent the French linguistic minority students’ other option, especially given that several of them offer an immersion program [emphasis added]. 78 81. A comparison of a local nature led the judge to conclude that ÉASC was not substantively equivalent to the English-language schools in Yellowknife, and therefore did not comply with s. 23 of the Charter .
82. The Hay River case also involved the evaluation of the substantive equivalence of the school facility of an existing French-language school, École Boréale, located in Hay River, to those of the English-language schools.
83. As in Yellowknife , the Court found in Hay River that “[t]he fundamental question the Court must answer about École Boréale’s current infrastructure is whether this infrastructure is adequate for providing the students who attend the school with substantive equality with the students of the English linguistic majority.” 79 As in Yellowknife , on the issue of choosing appropriate comparators, “[t]he Plaintiffs submit that the point of comparison should be Hay River’s English schools. The Defendants argue that this would be an error since the English schools have a much greater number of students than École Boréale. In their opinion, École Boréale should be compared with schools, in the NWT or elsewhere, with a comparable number of students.” 80
84. The Court drew the same conclusion as in Yellowknife :
the main comparator in the substantive equality analysis must be the schools of Hay River’s Anglophone majority, because they represent the French linguistic minority students’ other option. Even without immersion programs, these schools are the parents’ other option, which is why they, and not other schools in the NWT or elsewhere, must serve as the comparator for the purposes of the analysis.81 85. A comparison of a local nature led the Court to conclude that École Boréale was not substantively equivalent to the English-language schools in Hay River, and therefore did not comply with s. 23 of the Charter .
78 Yellowknife, paras. 582 and 583, APÉ Authorities, Tab 5. 79 Commission scolaire francophone, Territoires du Nord-Ouest et al. v. Attorney General of the Northwest Territories , 2012 NWTSC 44, para. 691 [“Hay River ”], APÉ Authorities, Tab 10 . 80 Hay River, para. 692, APÉ Authorities, Tab 10 . 81 Hay River, paras. 695 and 696, APÉ Authorities, Tab 10 . 25
86. Marchand also involved the issue of evaluating whether an existing French-language secondary school facility was substantively equivalent to the facilities of English-language schools.
87. Justice Sirois of the High Court of Justice for Ontario also based his evaluation of the substantive equivalence of school facilities on a local basis. Justice Sirois considered the evidence regarding the school facilities at the French-language secondary school and the English-language secondary schools located in the county, which the students could otherwise attend, and concluded that the French-language school facility was not substantively equivalent, and therefore did not comply with the Charter. He found that:
The s. 23 minority language educational rights of the plaintiff and those he represents to have their children receive their secondary school instruction in the French language in educational facilities, both provided by public funds, have been infringed and denied by the defendants. … The Legislature is under a duty to ensure that the French language secondary school instruction and educational facilities provided to the children of the plaintiff and the members of the class of persons he represents are equivalent to English language secondary school instruction and educational facilities provided within the County of Simcoe and such duty includes the provision of adequate funding for such purpose.82
c. The Province’s approach to comparing the Rose-des-Vents facility to the facilities of English-language schools fails to take into account the remedial nature of s. 23 of the Charter 88. In this case, the Province has argued that there is no reason to compare most aspects of the Rose-des-Vents facility to the same aspects of English-language school facilities, and that there is certainly no reason to compare school facilities on a local basis, because the Province does not impose uniform standards that apply to most aspects of school facilities in the province. According to the Province, “[t]he appropriate basis for comparing equivalence for the purposes of s. 23 is to examine only those elements of the educational program or facility for which the Province sets the standards, prescribes requirements or that the Province controls, which are universal across the province.” 83
82 Marchand, p. 22 (Quicklaw version), APÉ Authorities, Tab 22 . 83 Province’s written argument on the merits before the petition judge, paras. 12 and 80, Conseil Record, Vol. X, p. 2548 . 26
89. In the Province’s view, then, there is no reason to compare Rose-des-Vents to the other public schools to which the parents could send their children. On the contrary, the Province maintains that most aspects of the school facilities at Rose-des-Vents should simply not be compared, and that, in any case, it is necessary to examine the schools located throughout the Province.
90. According to the Province, even if the school facilities at Rose-des-Vents are worse than those of the VSB schools west of Main Street in Vancouver, it would be inappropriate to accord any importance to such a local comparison. The Province argued that “[t]o compare the educational programs and facilities within various geographic regions, some more impoverished than others, is to make the Province a contributor or perpetuator of regional disparities.” 84 In other words, according to the Province, even if a local comparison shows that the Rose-des- Vents school facility is of poorer quality than those of the VSB schools that compete with it, that is irrelevant for the purposes of s. 23 of the Charter, so long as there are schools in the province that occupy worse buildings than Rose-des-Vents, even if those buildings are located in distant rural areas. The Province argued before the petition judge that “[e]xamining what is happening ‘on the ground’ in geographic regions beyond Vancouver, helps to illuminate the areas where there is no set provincial requirement or prescribed standard, for example school grade configuration”. 85 86
91. The Province presented evidence regarding school buildings, their accessibility, and the school transportation offered in several regions of the province, but it emphasized two categories of comparators: the other school boards that have growing school populations and the other school boards whose student population is relatively sparsely distributed over the territory.87
92. The Province presented evidence to try to establish that even if the Rose-des-Vents facility is overcrowded, there are also problems of overcrowding at a number of English-
84 Province’s written argument on the merits before the petition judge, para. 78, Conseil Record, Vol. X, p. 2548 . 85 Province’s written argument on the merits before the petition judge, para. 81, Conseil Record, Vol. X, p. 2548 . 86 This claim was also at the core of the Province’s defence in para. 58 of the Province’s amended response to the petition, according to which “many school facilities that could benefit from upgrading or renovation”, a defence that was struck out by the petition judge in his judgment of November 4, 2011, 2011 BCSC 1495, para. 70(a). Note that the fact that this paragraph of the Province’s amended response to the motion was struck out did not prevent the government from presenting evidence regarding school buildings in various regions of British Columbia. 87 Reasons of the petition judge of October 31, 2012, para. 129, APÉ Record, Vol. I, p. 86 . 27 language schools in Surrey, for example.88 From the Province’s perspective, it is irrelevant that the parents who can send their children to Rose-des-Vents do not live in Surrey, and that the schools in Surrey are not part of the universe of choices facing parents who can send their children to Rose-des-Vents. This approach demonstrates why, as this Court has stated, “s. 23 was intended in part to protect the minority against the effect of measures adopted to suit the needs of the majority. It is therefore clear that minority language parents and their representatives are in the best position to identify local needs when it comes to defining the relevant areas.” 89
93. The Province also presented evidence that there are schools elsewhere in the province that are in a poor state of repair,90 although, as regards the condition of school facilities, the Province primarily emphasized a measurement of their condition (the index known as the “Facility Condition Index”, or “FCI”) which is based solely on the cost of maintenance compared to the value of the property,91 which takes into account factors that are not visible to parents, students, or teaching staff (e.g. the cost of repairs to the roof or the heating and ventilation system, compared to the value of the building), and which does not in any way evaluate the extent to which a building is well suited to serve as an educational space. The petition judge noted that the index “does not assess their fitness for educational purposes”92 (for example, the index does not take into account the fact that a classroom has no windows, is poorly sound-proofed, etc.) and concluded that “[i]t is an error […] to suggest that the FCI index is particularly helpful in this case”. 93
94. The Province also presented evidence that there are schools in some regions of the Province that are not very accessible, schools that have nothing to do with the choices faced by parents living in Vancouver west of Main Street, and regions that have very little in common with that part of Vancouver.
88 Affidavit #1 of Wayne Noye, Conseil Record, Vol. VI, p. 1365 . 89 Arsenault-Cameron, para. 57, APÉ Authorities, Tab 4 . 90 Affidavit #1 of Larry Espe (Peace River North), para. 50 (more than 1,200 km from Rose-des-Vents), Conseil Record, Vol. V, p. 1182 ; Affidavit #1 of Nancy Wells (Coast Mountains), paras. 20-21 (more than 1,300 km from Rose-des-Vents), Conseil Record, Vol. V, p. 1269 ; moreover, the evidence filed by the Province regarding the quality of VSB school facilities makes no distinction between schools located west and east of Main Street, despite the fact that only schools west of Main Street compete with Rose-des-Vents – see Affidavit #1 of Jordan Tinney, paras. 30 to 58, APÉ Record, Vol. IV, p. 1 . 91 Affidavit #1 of Susan Anson, Conseil Record, Vol. V, p. 1134 ; Affidavit #1 de Ken Frith, Conseil Record, Vol. V, p. 1145 . 92 Reasons of the petition judge of October 31, 2012, para. 68, APÉ Record, Vol. I, p. 86 . 93 Reasons of the petition judge of October 31, 2012, paras. 68, 141 and 142, APÉ Record, Vol. I, p. 86 . 28
95. On the issue of the substantive equivalence of the school facilities at Rose-des-Vents, the Province considered the schools attended by children living on the Gulf Islands (the islands between Vancouver Island and mainland British Columbia), northwestern British Columbia between Prince Rupert and Prince George, the region known as the Gold Trail (a rural area that experienced a drop in the student population following a decline in the forestry industry) and the Peace River region (a rural region in northeastern British Columbia on the border with Alberta) to be relevant.94 The petition judge rightly concluded that this evidence was irrelevant: “I accept the submission of the petitioners that once it is determined their numbers are sufficient to warrant an elementary school, the rights-holders are entitled to an elementary school that is at least equivalent to that afforded to most Anglophone students on the west side of the City of Vancouver.” 95
96. In short, as far as the Province is concerned, the concrete choices faced by parents living in Vancouver west of Main Street are not relevant to the evaluation of the substantive equivalence of the current Rose-des-Vents facility, or to determining whether that facility complies with s. 23 of the Charter .
97. Indeed, the Province argued that French-language education is “a program of choice” and that “the Province is not required to entice right holders, or provide incentives, to induce them to attend.” 96 According to the Province, parents make their decisions about enrolling their children “for all kinds of reasons and it is not reflective of equivalency”: 97 “[t]ake up is the choice of the right holder. Although the Petitioners argue that s. 23, and therefore government, should force right holders to attend, it is a program of choice.” 98
98. It goes without saying that this position taken by the Province ignores the objective of s. 23 of the Charter as well as the jurisprudence of this Court. Clearly, there is no question of forcing anyone to attend a particular school. What this Court has found in its jurisprudence is,
94 Affidavit #1 of Jeff Hopkins (Gulf Islands region), Conseil Record, Vol. V, p. 1239 ; Affidavit #1 of Nancy Wells, Conseil Record, Vol. V, p. 1269 ; Affidavit #1 of Teresa Downs, paras. 6 and 16, Conseil Record, Vol. V, p. 1175 ; Affidavit #1 of Larry Espe, paras. 15 to 33, Conseil Record, Vol. V, p. 1182 . 95 Reasons of the petition judge of October 31, 2012, para. 132, APÉ Record, Vol. I, p. 86 . 96 Province’s written argument on the merits before the petition judge, para. 87, Conseil Record, Vol. X, p. 2548 . 97 Province’s written argument on the merits before the petition judge, para. 88, Conseil Record, Vol. X, p. 2548 . 98 Province’s written argument on the merits before the petition judge, para. 89, Conseil Record, Vol. X, p. 2548 . 29 rather, that, if the school facilities at a French-language school have a deterrent effect, they prevent that school from fulfilling its remedial mission with regard to language and culture.99
99. The Province’s approach ignores that reality. It also ignores the fact that s. 23, as indicated above, not only contains an “affirmative promise” on the part of the Province, requiring “timely compliance”, 100 but also imposes on the Province “the duty to actively promote educational services in the minority language and to assist in determining potential demand.” 101 The Province must consider whether the school facilities discourage parents from enrolling their children at Rose-des-Vents, and must take that into account when making decisions. There is a parallel between these obligations of the Province and the Province’s obligations toward aboriginal peoples due to the honour of the Crown, which requires Canadian governments to give “a broad, purposive interpretation” to their constitutional obligations toward aboriginal peoples and to act “diligently in pursuit of [their] solemn obligations”. 102
d. The petition judge applied the correct test in assessing the substantive equivalence of the Rose-des-Vents school facility to the facilities of the VSB schools west of Main Street 100. The petition judge rightly recognized that the Province’s approach, and the evidence it presented regarding school facilities in a number of distant regions, of which all but Surrey were rural, simply fail to take into account the choices faced by the parents concerned.
101. A reading of the jurisprudence of this Court explaining the remedial nature of s. 23 of the Charter makes it clear that an approach that is not based on the actual choices faced by parents when deciding to which school they will send their children is wrong in law and disregards s.23’s mission to change the status quo in British Columbia.103 This was already clear based on this Court’s statements in Mahé 104 and the Reference re Public Schools Act (Man.) .105 There can no longer be any doubt on this issue since this Court’s ruling in Arsenault-Cameron , which
99 Arsenault-Cameron, paras. 50 et 51, APÉ Authorities, Tab 4 . 100 Doucet-Boudreau, para. 29, APÉ Authorities, Tab 17 . 101 Arsenault-Cameron, para. 34 [emphasis added], APÉ Authorities, Tab 4 . 102 Manitoba Métis Federation Inc v. Canada (Attorney General) , 2013 CSC 14, para. 78, [2013] 1 S.C.R. 623, Conseil Authorities, Tab 10 . 103 This status quo was partially documented, on a provincial scale, in the reasons of Justice Vickers in Association des parents francophones v. British Columbia (1996), para. 2, Authorities, Tab 1 , and in Vancouver west of Main Street in Affidavit #1 of Nicolas Kenny, APÉ, Vol. III, p. 1 . 104 Mahé, pp. 378 and 386, APÉ Authorities, Tab 21 . 105 Reference re Public Schools Act (Man.), pp. 862-863, Conseil Authorities, Tab 14 . 30 confirmed in the clearest possible way that if a building has a deterrent effect on enrolment, it breaches s. 23.
102. This Court explained very clearly in Arsenault-Cameron that it is crucial to take into account the specific nature of the French-language community and the concrete choices it faces:
[…] First, unlike majority language children, s. 23 children were faced with a choice between a locally accessible school in the majority language and a less accessible school in the minority language. The decision of the Minister fostered an environment in which many of the s. 23 children were discouraged from attending the minority language school because of the long travel times. A similar disincentive would not arise in the circumstances of the majority. Second, the choice of travel would have an impact on the assimilation of the minority language children while travel arrangements had no cultural impact on majority language children. For the minority, travel arrangements were in large measure a cultural and linguistic issue; they involved not only travel times but also a consideration of distances because of the impact of having children sent outside their community and of not having an educational institution within the community itself. 106
103. The approach adopted by the petition judge is perfectly in line with the path marked out by this Court in Arsenault-Cameron , which recognizes the importance of the choice right holders must make “between a locally accessible school in the majority language and a less accessible school in the minority language”, as well as the deterrent effect on enrolment at the school of the linguistic minority when that school is not sufficiently accessible.
104. An approach focused on the actual situation of right holders is also in line with this Court’s approach to aboriginal law, where “[t]he ‘meaningful right to hunt’ is not ascertained on a treaty-wide basis […] but in relation to the territories over which a First Nation traditionally hunted, fished and trapped, and continues to do so today.107
105. In this case, given that Rose-des-Vents suffers from serious problems flowing from both the school’s accessibility and the quality of the facility, the petition judge compared Rose-des- Vents and the VSB schools west of Main Street from those two perspectives. The approach of the petition judge, like the approach of this Court in Arsenault-Cameron , was guided by the objective of substantive equality between the two school systems between which members of the minority language community must choose, and by a consideration of the deterrent effect (not to
106 Arsenault-Cameron, para. 50, APÉ Authorities, Tab 4 . 107 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, para. 48, [2005] 3 S.C.R. 388, Conseil Authorities, Tab 12 . See also Re Education Act of Ontario and Minority Language Rights (1984), 10 D.L.R. (4 th ) 491, pp. 522-523 (C.A. Ont.), Conseil Authorities, Tab 15 ; Mahé, p. 386, APÉ Authorities, Tab 21 . 31 mention linguistic and cultural assimilation) that results when the school facilities are not substantively equivalent.
106. The petition judge simply recognized that it is relevant to know to what extent children in Vancouver west of Main Street “were faced with a choice between a locally accessible school in the majority language and a less accessible school in the minority language” and that it is also relevant to ask the same question regarding the other criteria a reasonable parent uses in order to compare school facilities.
107. In this case, the petition judge correctly applied the teachings of this Court in Arsenault- Cameron , by considering not only the choice “between a locally accessible school in the majority language and a less accessible school in the minority language”, 108 but also the choice between a more attractive school in the majority language and a less attractive school in the minority language; between a school with better instructional spaces in the majority language and a school with worse instructional spaces in the minority language; between a school in the majority language that is not overcrowded, or is less overcrowded, and a school in the minority language that is overcrowded, or is more overcrowded; etc. This Court should confirm that the petition judge’s approach was the correct one.
III. The paragraphs struck by the petition judge were not relevant to the analysis of substantive equivalence required by s. 23 of the Charter 108. Taking into account the real issues raised in the parties’ pleadings, and the issues that must be decided in order to determine whether the school facilities at Rose-des-Vents breach s. 23 of the Charter, the petition judge struck out certain paragraphs of the Province’s response on the basis that they were irrelevant.
109. The Court of Appeal found that the paragraphs struck out could have been relevant “to the issue of equivalence in terms of what is practical in the situation confronting all of the parties”. 109 The Court of Appeal explained that the petition judge should not have prevented the Province from pleading and arguing the defences it wished to advance regarding the substantive
108 Arsenault-Cameron, para. 50, APÉ Authorities, Tab 4. 109 Reasons of the Court of Appeal, paras. 44-46, APÉ Record, Vol. I, p. 180 . 32 equivalence of facilities, in relation to the sliding scale identified by the Supreme Court of Canada in Mahé .110
110. The Court of Appeal’s analysis, according to which s. 23 of the Charter requires only “equivalence in terms of what is practical in the situation confronting all of the parties” is wrong in law. The Court of Appeal undertakes the analysis of what is “practical” in the wrong context. It is only in the context of determining what the numbers warrant that what is “practical” must be considered:
In my view, it is more sensible, and consistent with the purpose of s. 23, to interpret s. 23 as requiring whatever minority language educational protection the number of students in any particular case warrants. Section 23 simply mandates that governments do whatever is practical in the situation to preserve and promote minority language education. 111 111. That must mean that, where the number of eligible students is too small, it is possible that it is not “practical” to offer certain programs of instruction, certain activities or certain courses, which can only be offered to a larger group. However, in this case, the petition judge determined that the number of eligible students living in Vancouver west of Main Street is at least 710 112 and that approximately 500 students should already be receiving a French-language education in that area.113
112. It is therefore not possible to claim that this number is insufficient to offer essentially the same services as those offered to children educated in the majority language in Vancouver west of Main Street, because what is “practical” has already been determined for several elementary schools of the VSB, with student enrolment of 250 students or fewer. It is clearly “practical” to offer a complete, substantively equivalent, and even identical, education to eligible students at two Conseil elementary schools, one west of Granville Street and the other between Main Street and Granville Street.114
113. The Court of Appeal put particular emphasis on the criterion of what is “practical” in determining that the paragraphs that had been struck by the petition judge should not have been struck. A reading of paragraphs 58, 76, 77 and 92 of the Province’s pleading (the Province’s
110 Reasons of the Court of Appeal, paras. 39-48, APÉ Record, Vol. I, p. 180 . 111 Mahé, p. 367, APÉ Authorities, Tab 21 . 112 Reasons of the petition judge of October 31, 2012, para. 41, APÉ Record, Vol. I, p. 86 . 113 Reasons of the petition judge of October 31, 2012, para. 127, APÉ Record, Vol. I, p. 86 . 114 Affidavit no. 4 of Sylvain Allison, paras. 78 and 85, APÉ Record, Vol. III, p. 179 ; Affidavit no. 1 of Doug Stewart, Exhibit “D”, Conseil Record, Vol. I, p. 251 . 33 amended response to the petition) facilitates the analysis:
58. There are many school facilities in British Columbia that could benefit from upgrading, renovation or replacement. … 76. The Respondents say that while the use of the French language at home has, and continues, to decrease within the French language community, this is in part because of the incidence of exogamous couples, that is, couples where the mother tongue of one of the two individuals is not French. 77. Most of the Conseil’s students, including those at Rose-des-Vents, are children of exogamous couples. … 92. If parents with rights under s. 23 of the Charter are choosing to send their children to English language schools, including French immersion schools, instead of sending them to Rose-des- Vents, they do so for a variety of reasons that do not constitute a violation of s. 23 of the Charter by the Minister, including: • the student’s French language skills are insufficient; • the student has difficulty keeping up; • the reduced social opportunities inherent in a smaller student body; • a desire to transition the student to an English language program in preparation for English language post-secondary studies; • a desire to not participate in the francophone community as represented by the Conseil.115
114. It is clear that these allegations, assuming that they are true, had no reasonable chance of establishing that the building in which Rose-des-Vents is located is substantively equivalent to those of the English-language schools.
115. Paragraph 58 of the Province’s amended response to the petition underlines that many school buildings in the province could benefit from investments. This allegation has no potential impact on what is required by s. 23 of the Charter in Vancouver west of Main Street. As explained above, the petition judge was right to rule that the relevant comparison for determining whether s. 23 of the Charter was breached is whether the quality of education offered to the minority in its community is comparable to that currently offered to the majority in the same catchment area.
115 Province’s amended response to the motion, paras. 58, 76, 77, and 92, APÉ Record, Vol. II, p. 37 . 34
116. Paragraphs 76 and 77 of the Province’s amended response to the petition allege that the linguistic and cultural assimilation of French speakers in general, and in Vancouver west of Main Street in particular, is caused at least in part by the phenomenon of exogamous families, and is not solely the result of the lack of substantive equivalence of school facilities. Such an allegation cannot constitute a valid defence to a breach of s. 23 of the Charter . A plain reading of s. 23 of the Charter clearly indicates that the fact that a family is exogamous or not is in no way relevant when determining whether s. 23 of the Charter is breached. Section 23 of the Charter does not include any obligation or requirement that both of a child’s parents be right holders in order for the child to receive a publicly funded education in the minority language.
117. In fact, s. 23 of the Charter specifically provides the contrary. It is sufficient for just one parent to be a right holder in order for his or her child to receive a publicly funded education in the minority language. This honourable Court has also underlined in the context of section 23(2) of the Charter that this section “applies without regard to the fact that qualified parents or children may not be French or English, or may not speak those languages at home”. 116 It necessarily follows that the fact that a family is exogamous has no relevance in determining the rights protected by s. 23. In fact, as a result of exogamy, the French-language school may play an even more crucial role in the transfer of the French language and culture, because it is even more difficult for one parent than for two to transmit the language and culture in a minority context.
118. According to the Court of Appeal, “[t]hese paragraphs may have relevance to what is practical in terms of equivalency in the situation confronting all of the parties as well as the ultimate remedy sought”. 117 However, as this Court, and s. 23 of the Charter itself, have stated that exogamy is not a relevant factor, it would be wrong to take that factor into account when determining the appropriate remedies.
119. Paragraph 92 of the Province’s amended response to the petition alleges that parents of eligible students choose to enrol their children at schools of the majority, including French immersion schools, for a variety of reasons that do not constitute breaches of s. 23 of the Charter .
120. The Court of Appeal accepted that this paragraph “may have relevance to what is practical
116 Solski, para. 31, Conseil Authorities, Tab 16 . 117 Reasons of the Court of Appeal, para. 45, APÉ Record, Vol. I, p. 180 . 35 in terms of equivalency in the situation confronting all of the parties as well as the ultimate remedy sought”. 118 The fact that some parents withdraw their children from French-language schools for reasons that are not related to the school facilities is not relevant to the analysis of the quality of the school facilities.
121. In this case, what is relevant, and the issue that the petition judge addressed, is whether there are parents who withdraw their children from Rose-des-Vents because the education and facilities offered at VSB schools are of a higher quality than those offered at Rose-des-Vents. The evidence evaluated by the petition judge in this regard is very clear and conclusive: there are many parents who withdraw their children from Rose-des-Vents or simply refuse to enrol their children there, because of the higher quality services offered by the VSB.
PART IV – ARGUMENT REGARDING COSTS
122. Having considered all the evidence in this case and the arguments of the parties, the petition judge ordered that the Province pay the Conseil its costs on a substantial indemnity basis.119 The petition judge found that such an order was “in the public interest in this case and just in the circumstances”, 120 because the issues before the court “involved constitutional principles and the sufficiency of measures taken to protect the minority language culture which is regarded as an important objective for all Canadians, given its place in the Charter . The case therefore implicates fundamental social values and policies.”121 The petition judge also took into account the means of the parties, concluding that
[i]t goes without saying, in my view, that the Province has a superior capacity to bear the costs of this proceeding. While the CSF is a large institution, its budget and resources ought to be devoted to the provision of facilities and services to students enrolled at its schools, and its capacity to bear the costs of the proceeding without impacting students is limited. In my view, it is appropriate to take into account the potential impact of a costs order upon the ability of the CSF to discharge its obligation to students and rights holders in considering its capacity to bear the costs of the proceeding.122
118 Reasons of the Court of Appeal, para. 46, APÉ Record, Vol. I, p. 180 . 119 Reasons of the petition judge regarding costs, Association des parents de l’école Rose-des-vents v. Conseil scolaire francophone de la Colombie-Britannique , 2013 BCSC 1111, para. 79 [“Reasons of the petition judge regarding costs”], APÉ Record, Vol. I, p. 153 . 120 Reasons of the petition judge regarding costs, para. 79, APÉ Record, Vol. I, p. 153 . 121 Reasons of the petition judge regarding costs, para. 72, APÉ Record, Vol. I, p. 153 . 122 Reasons of the petition judge regarding costs, para. 77, APÉ Record, Vol. I, p. 153 . 36
123. The Court of Appeal overturned this judgment and, exceptionally, ordered that the parties pay their own costs in this case.123
124. The Conseil is a not-for-profit organization attempting to ensure that the rights that are guaranteed to it, and to the parents on whose behalf it exercises the power of management and control conferred by s. 23 of the Charter , are respected. The issues raised by this appeal are either new and of public interest, or require the Conseil to defend the jurisprudence of this Court, and its correct application, in the public interest. The nature of the role and involvement of the Conseil in this appeal, in this Charter litigation , is such that this Court should award it its costs before all the courts, just as this Court ordered recently in Conseil scolaire francophone de la Colombie -Britannique v. British Columbia .124 The Conseil therefore requests all of its costs before this Court and the Court of Appeal, calculated on a substantial indemnity basis, regardless of the outcome of the case, and also asks that the costs order made by the petition judge on June 24, 2013, and overturned by the Court of Appeal, be reinstated.
PART V – ORDER SOUGHT
125. The Conseil asks that this appeal be allowed with costs, calculated on a substantial indemnity basis.
126. Moreover, the Conseil asks specifically that the reasons of this Court be delivered on a date well before April 1, 2015. Since the presentation of the evidence in the comprehensive action brought by the Conseil and its co-plaintiffs will end before April 1, 2015 – at which time the parties are expected to have presented all the evidence and completed their arguments before the Supreme Court of British Columbia, according to the current schedule – the decision of this Court, if it is favourable to the Conseil, could be of only very limited use to it if it is delivered after the applicants complete the very substantial work required to complete the trial of the comprehensive action, both with regard to Rose-des-Vents and with regard to the other communities and schools that are at issue in the action. It should be stressed that this trial will
123 L’Association des parents de l’école Rose-des-vents v. British Columbia (Minister of Education) , 2014 BCCA 40, para. 27, APÉ Record, Vol. I, p. 208 . 124 Conseil scolaire francophone de la Colombie-Britannique v. British Columbia , [2013] 2 S.C.R. 774, 2013 SCC 42, paras. 64 and 65, Conseil Authorities, Tab 5 .
37 last for more than one hundred days and involves more than fifty witnesses and one thousand exhibits. The examinations for discovery of the representatives of the parties lasted more than 80 days.
127. In the further alternative, the Conseil asks that the appeal be allowed with costs, calculated on a substantial indemnity basis, and that this Court exercise its power pursuant to s. 45 of the Supreme Court Act to “give the judgment and award the process or other proceedings that the court whose decision is appealed against should have given or awarded.” 125 In this case, the vast majority of the evidence that was before the petition judge is not contested; the debate centres primarily on the application of the law to the facts. In view of the high level of linguistic and cultural assimilation west of Main Street in Vancouver, the Conseil asks that this Court substitute a declaration that “the school facilities and transportation services offered to parents living west of Main Street in Vancouver who are entitled to have their children receive their elementary education in French are not equivalent to the school facilities and transportation services offered by the English-language schools in Vancouver west of Main Street” for the declaration made by the petition judge.
Dated this 18th day of July, 2014 in Vancouver.
______Robert W. Grant, QC Mark C. Power Jean-Pierre Hachey David P. Taylor
125 Supreme Court Act , R.S.C. 1985, c. S-26, s. 45; see also Corrie v. Gilbert , [1965] S.C.R. 457, p. 464, Conseil Authorities, Tab 6 . 38
PART VI – LIST OF AUTHORITIES
Jurisprudence Para cited Arsenault-Cameron v. Prince Edward Island , 2000 SCC 1, [2000] 1 S.C.R. 3. 27, 33, 34, 37, 38, Appellants’ Authorities, Association des parents de l’École Rose-des-Vents 44, 45, 46, 54, 58, and Joseph Pagé et al. (hereinafter “APÉ Authorities”), Tab 4. 61, 65, 73, 76, 92, 99, 102, 103, 105, 107 Association des parents ayants droit de Yellowknife et al. v. Attorney General of 78, 79, 80, 83, 84 the Northwest Territories et al., 2012 NWTSC 43. cor 1, 2012 CanLII 31380. APÉ Authorities, Tab 5. Association des parents francophones v. British Columbia (1996), 27 B.C.L.R. 35, 36, 101 (3d) 83 (C.S.) Association des parents francophones v. British Columbia (1998), 61 B.C.L.R. 35, 54 (3d) 165, 167 D.L.R. (4th) 534 (C.S.)) Assoc. française des conseils scolaires de l’Ontario v. Ontario (1988), 66 O.R. 54 (2d) 599 (C.A.) Canada (Attorney General) v. Bedford , 2013 SCC 72, [2013] 3 S.C.R. 1101. 49 Commission scolaire francophone et al. v. Attorney General of the Northwest 82, 83, 84 Territories , 2012 NWTSC 44, 2012 CanLII 31411. APÉ Authorities, Tab 10. Conseil des écoles séparées catholiques romaines de Dufferin et Peel v. Ontario 54 (Ministre de l’Éducation et de la Formation) , [1996] O.J. No. 2476, 136 D.L.R. (4th) 704 (Ont. Ct. (Gen. Div.)); aff’d [1996] O.J. No. 2564, (1996), 30 O.R. (3d) 681 (C.A.). APÉ Authorities, Tabs 11 and 12. Conseil scolaire francophone de la Colombie-Britannique v. Colombie- 5, 124 Britannique , 2013 SCC 42. Conseil scolaire fransaskois de Zénon Park v. Saskatchewan , [1999] 3 W.W.R. 54 743 (Sask. Q.B.), aff’d [1999] 12 W.W.R. 742 (Sask. C.A.). APÉ Authorities, Tabs 13 and 14. Corrie v. Gilbert , [1965] S.C.R. 457. 127 Doucet ‑Boudreau v. Nova Scotia (Minister of Education) , 2003 SCC 62, [2003] 3 40, 54, 58, 99 SCR 3. APÉ Authorities, Tab 17. Hunter v. Southam Inc , [1984] 2 S.C.R. 145. 23
39
L’Association des parents de l’école Rose-des-Vents v. Conseil scolaire 68, 90 francophone de la Colombie-Britannique , 2011 BCSC 1495. Appellants’ Record, Association des parents de l’école Rose-des-Vents and Joseph Pagé et al. (hereinafter “APÉ Record”), Volume I, page 35 . L’Association des parents de l’école Rose-des-Vents v. Conseil scolaire 15, 67 francophone de la Colombie-Britannique , 2012 BCSC 1206. APÉ Record, Volume I, page 65 . L’Association des parents de l’école Rose-des-vents v. Conseil scolaire 5, 12, 13, 14, 15, francophone de la Colombie-Britannique , 2012 BCSC 1614. 16, 17, 18, 41, 67, APÉ Record, Volume I, page 86 . 72, 91, 93, 95, 111, 122 L’Association des parents de l’école Rose-des-vents v. Conseil scolaire 43 francophone de la Colombie-Britannique , 2013 BCSC 1111. APÉ Record, Volume I, page 153 . L’Association des parents de l’école Rose-des-vents v. Conseil scolaire 41 francophone de la Colombie-Britannique , 2013 BCSC 1243. L’Association des parents de l’école Rose-des-vents v. British Columbia (Minister 123 of Education) , 2014 BCCA 40. APÉ Record, Volume I, page 208 . L’Association des parents de l’école Rose-des-vents v. British Columbia (Minister 10, 69, 109, 118, of Education) , 2013 BCCA 407. 120 APÉ Record, Volume I, page 180 . Lavoie v. Nova Scotia (Attorney-General) (1988), 47 D.L.R. (4th) 586 (N.S. S.C.). 54 Mahé v. Alberta , [1990] 1 S.C.R. 342. 24, 25, 29, 30, 32, APÉ Authorities, Tab 21. 54, 101, 104, 109, 110 Manitoba Métis Federation Inc v. Canada (Attorney General), 2013 SCC 14, 99 [2013] 1 S.C.R. 623. Marchand v. Simcoe County Board of Education (1986), 29 D.L.R. (4 th ) 596 (Ont. 54, 86 H.C.). APÉ Authorities, Tab 22. Marchand v. Simcoe County Board of Education (No. 2) (1987), 44 D.L.R. (4th) 54 171 (Ont. H.C.). Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 104 69, [2005] 3 S.C.R. 388. R v. Big M Drug Mart Ltd , [1985] 1 S.C.R. 295. 23 Reference re Public Schools Act (Man.), s. 79(3), (4) and (7) , [1993] 1 S.C.R. 839. 26, 101 Re Education Act of Ontario and Minority Language Rights (1984), 10 D.L.R. (4 th ) 104
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491. Solski (tutor of) v. Quebec (AG) , 2005 SCC 14, [2005] 1 S.C.R. 201. 40, 72, 117
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PART VII – LEGISLATION
Loi sur la Cour suprême , L.R.C. 1985, c. S-26, Supreme Court Act , RSC 1985, c S-26, s. 45. art. 45. Appeal may be dismissed or judgment Rejet de l’appel ou prononcé d’un jugement given
45. La Cour peut rejeter l’appel ou se substituer 45. The Court may dismiss an appeal or give à la juridiction inférieure pour le prononcé du the judgment and award the process or other jugement et l’engagement des moyens de proceedings that the court whose decision is contrainte ou autres procédures. appealed against should have given or awarded. Loi constitutionnelle de 1982 , Annexe B de la The Constitution Act, 1982 , being Schedule B Loi de 1982 sur le Canada (R-U), 1982, c 11, to the Canada Act 1982 (UK), 1982, c 11, s. art. 23. 23.
Droits à l'instruction dans la langue de la Minority Language Educational Rights - minorité - Langue d'instruction Language of instruction
23. (1) Les citoyens canadiens : 23. (1) Citizens of Canada a) (a) dont la première langue apprise et encore whose first language learned and still comprise est celle de la minorité francophone understood is that of the English or French ou anglophone de la province où ils résident, linguistic minority population of the province b) in which they reside, or qui ont reçu leur instruction, au niveau (b) primaire, en français ou en anglais au Canada et qui résident dans une province où la langue who have received their primary school dans laquelle ils ont reçu cette instruction est instruction in Canada in English or French and celle de la minorité francophone ou anglophone reside in a province where the language in de la province, which they received that instruction is the language of the English or French linguistic ont, dans l'un ou l'autre cas, le droit d'y faire minority population of the province, instruire leurs enfants, aux niveaux primaire et secondaire, dans cette langue. have the right to have their children receive primary and secondary school instruction in Continuité d'emploi de la langue that language in that province. d'instruction Continuity of language instruction (2) Les citoyens canadiens dont un enfant a reçu ou reçoit son instruction, au niveau (2) Citizens of Canada of whom any child has primaire ou secondaire, en français ou en received or is receiving primary or secondary
42 anglais au Canada ont le droit de faire instruire school instruction in English or French in tous leurs enfants, aux niveaux primaire et Canada, have the right to have all their secondaire, dans la langue de cette instruction. children receive primary and secondary school Justification par le nombre instruction in the same language.
(3) Le droit reconnu aux citoyens canadiens par Application where numbers warrant les paragraphes (1) et (2) de faire instruire leurs enfants, aux niveaux primaire et secondaire, (3) The right of citizens of Canada under dans la langue de la minorité francophone ou subsections (1) and (2) to have their children anglophone d'une province : receive primary and secondary school a) instruction in the language of the English or French linguistic minority population of a s'exerce partout dans la province où le nombre province des enfants des citoyens qui ont ce droit est suffisant pour justifier à leur endroit la (a) prestation, sur les fonds publics, de l'instruction dans la langue de la minorité; applies wherever in the province the number b) of children of citizens who have such a right is sufficient to warrant the provision to them out comprend, lorsque le nombre de ces enfants le of public funds of minority language justifie, le droit de les faire instruire dans des instruction; and établissements d'enseignement de la minorité linguistique financés sur les fonds publics. (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.
43