35823 BETWEEN: And: And: in the SUPREME COURT of CANADA

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Court File No.: 35823

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE YUKON COURT OF APPEAL)

BETWEEN:

COMMISSION SCOLAIRE FRANCOPHONE DU YUKON, DISTRICT SCOLAIRE NO. 23

Appellant

and:

ATTORNEY GENERAL OF YUKON TERRITORY

Respondent and:

THE ATTORNEY GENERAL FOR SASKATCHEWAN, THE ATTORNEY GENERAL OF THE NORTHWEST TERRITORIES, THE ATTORNEY GENERAL OF QUEBEC, THE ATTORNEY GENERAL OF BRITISH COLUMBIA, THE COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA, CONSEIL SCOLAIRE FRANCOPHONE DE LA COLOMBIE BRITANNIQUE, FEDERATION DES PARENTS FRANCOPHONES DE LA COLOMBIE BRITANNIQUE, FEDERATION DES PARENTS FRANCOPHONES DE L' ALBERTA, FEDERATION NATIONALE DES CONSEILS SCOLAIRES FRANCOPHONES, FEDERATION NATIONALE DES COMMUNAUTES FRANCOPHONES ET ACADIENNE DUCANADA

Interveners

FACTUM OF THE INTERVENOR ATTORNEY GENERAL FOR SASKATCHEWAN Filed pursuant to Rules 37 and 42 of the Rules of the Supreme Court of Canada

Attorney General for Saskatchewan Intervener Ottawa Agent

Alan F. Jacobson and Barbara C. Mysko D. Lynne Watt Constitutional Law Branch Gowling Lafleur Henderson LLP Saskatchewan Ministry of Justice 160 Elgin Street, Suite 2600 and Attorney General Ottawa, ON KIP 1C3 8th floor, 1874 Scarth Street Telephone- (613) 786-8695 Regina, SK S4P 4B3 Fax - (613) 788-3509 Telephone - (306) 787-1087 lynne.watt(a{gowlings.com Fax - (306) 787-9111 [email protected] Publication Ban Interdiction de publication

Commission Scolaire Francophone du Yukon, District Scolaire no. 23 Appellant Ottawa Agent

Roger J.F. Lepage, Francis Poulin and Justin Dubois Romain Baudemont Juristes Power Law Miller Thomson LLP I30 Albert Street, Suite II 03 2I 03 - II th A venue, Suite 600 Ottawa, ON KIP 504 Regina, SK S4P 3Z8 Telephone- (6I3) 702-5566 Telephone (306) 347-8300 Fax - (613) 702-5566 Fax (306) 347-8350 [email protected] [email protected]

Attorney General of Yukon Territory Respondent

Maxime Faille and Fran~ois Baril Gowling Lafleur Henderson LLP I60 Elgin Street, Suite 2600 Ottawa, ON KIP IC3 Telephone - (6I3) 233-I78I Fax - (6I3) 563-9869 [email protected]

Attorney General of the Northwest Territories Intervener

Guy Regimbald Gowlings Lafleur Henderson LLP I60 Elgin Street, Suite 2600 Ottawa, ON KIP IC3 Telephone - (613) 233-I78I Fax - (6I3) 563-9869 [email protected]

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Attorney General of Quebec Intervener

Pierre Landry Noel & Associes 111 rue Champlain Gatineau, QC J8X 3R1 Telephone - (819) 771-73 93 Fax- (819) 771-5397 p.landry(a),noelassocies.com

Attorney General of British Columbia Intervener Ottawa Agent

Karrie Wolfe and Leah Greathead Robert E. Houston, Q.C. Attorney General of British Columbia Burke-Robertson 1001 Douglas Street, 6th floor 441 MacLaren Street, Suite 200 P.O. Box 9280, Station Prov. Govt. Ottawa, ON K2P 2H3 Victoria, BC V8W 9J7 Telephone- (613) 236-9665 Telephone- (250) 356-6185 Fax - (613) 235-4430 Fax- (250) 356-9154 [email protected] [email protected]

Commissioner of Official Languages of Canada Intervener

Pascale Giguere and Mathew Croitoru Commissioner of Official Languages of Canada 30 Victoria Street, 6th floor Gatineau, QC K 1A OT8 Telephone- (819) 420-4869 Fax - (819) 420-4864 pascale.giguere(a),ocol-clo.gc.ca

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Conseil Scolaire Francophone de Ia Colombie-Britannique and Federation des Parents Francophones de Ia Colombie Britannique Ottawa Agent Intervenors Elie Ducharme Maxine Vincelette and David P. Taylor Juristes Power Law Juristes Power I30 Albert Street, Suite 1103 1199 Hastings Street West, Suite 90I Ottawa, ON KIP 5G4 Vancouver, BC V6E 3T5 Telephone- (613) 702-5563 Telephone- (604) 365-0340 Fax - (613) 702-5561 Fax - (888) 404-2227 [email protected] mvi ncelette@juristespower. ca

Federation des Parents Francophones de I' Alberta Ottawa Agent Intervener Justin Dubois Nicolas M. Rouleau Juristes Power 720 Brock Street 139 Albert Street, Suite Il03 Toronto, ON M6H 3P2 Ottawa, ON KIP 5G4 Telephone- ( 4I6) 885-136I Telephone - (613) 702-5560 Fax - (888) 850-I306 Fax - (613) 702-5560 [email protected] [email protected]

Federation Nationale des Conseils Scolaires Francophones & Federation des Communautes Francophones et Acadienne du Canada Ottawa Agent Interveners Justin Dubois Mark C. Power Juristes Power Juristes Power 139 Albert Street, Suite II 03 II99 Hastings Street West, Suite 90I Ottawa, ON KIP 5G4 Vancouver, BC V6E 3T5 Telephone- (613) 702-5560 Telephone (604) 265-0340 Fax- (613) 702-5560 Fax: (604) 265-0340 [email protected] [email protected]

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TABLE OF CONTENTS

Page

Part I: Overview and Facts

A. Overview 1 B. Facts 2

Part II: Point in Issue 2

A. The Constitutional Questions 2 B. Position of the Intervener 3

Part III: Argument 3

A. Scope ofthe Constitutional Question 3 B. Relevant General Principles 4

i. A Purposive and Generous Interpretation of Section 23 4

C. The Saskatchewan Context 6

1. Relevant Provincial Legislation 6 11. Ongoing Litigation 6

D. The Interpretative Process 8

1. The Character and the Larger Objects of the Charter and the 8 Historical Origins of the Right

a. Control over Provincial Funding Priorities and 8 Institutional Mechanisms b. Protecting Against the Assimilation of the Minority Language 10 Community

11. The Language Chosen to Articulate the Specific Right 12

a. The Numbers Warrant Threshold and Management 13 and Control

iii. The Meaning and Purpose ofthe Other Specific Rights and Freedoms 14 with which it is Associated within the Text ofthe Charter

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Page

E. The Principle ofFederalism 15

F. Conclusion 17

Part IV: Costs 17

Part V: Nature of Order Sought 18

Part VI: Table of Authorities 19

Part VII: Statutes, Regulations and Rules 21

-ii- Publication Ban Interdiction de publication PART I OVERVIEW AND FACTS

A. Overview

1. The Attorney General for Saskatchewan ("Saskatchewan") advocates for an interpretation of section 23 that is consistent with both its text and its purpose. As confirmed in Solski (Tutor of) v Quebec (Attorney General), R v Nguyen, and Gosselin (Tutor of) v Quebec (Attorney General/, an interpretation of management and control that unduly expands the potential beneficiaries under section 23 risks undermining the very objective of the right. While the right must be placed in its proper linguistic, philosophic and historical contexts, the goal of redress for past wrongs should not recast the right beyond its intended purpose.

2. Saskatchewan submits that there is no ambiguity in the three categories of rights holders. Nor can management and control be extended so as to allow for open-ended admissions policies which fall outside the scope of the right. To breathe life into the expressed purpose of the provision does not mean to expand the scope beyond that which is explicitly and specifically delineated.

3. Two factors militate against an overly expansive approach to the rights holders' management and control. First, provinces must retain a measure of control over provincial funding priorities and institutional mechanisms in the delivery of education across the province. A provincial government's jurisdiction over education should not be curtailed beyond what is necessary to implement the requirements of the Charter. Saskatchewan submits that the specificity of the categories under section 23 is confirmation of the limits inherent in the obligation. Second, the primary purpose of section 23 is to protect the minority language community from assimilation and to maintain the integrity of the very language that is at risk. The well-established categories of rights holders allow the courts to ensure that this purpose is upheld.

1Solski (Tutor of) v Quebec (Attorney General), [2005] 1 SCR 201,2005 SCC 14 [Solski] [Appellant's Book of Authorities ("ABA") Vo12 Tab 32]; R v Nguyen, [2009] 3 SCR 208,2009 SCC 25 [Nguyen] [Respondent's Book of Authorities ("RBA") Vol3 Tab 36; and Gosselin (Tutor of) v Quebec (A ttorney General, [2005] 1 SCR 238, 2005 SCC 15 [Gosselin] [RBA Vol2 Tab 21]. Publication Ban Interdiction de publication 2

4. Saskatchewan submits that an extension of the right to management and control over student admissions does not find support in the case law. In light of this Court's Quebec jurisprudence, Saskatchewan urges the Court not to adopt a finding which would allow for an asymmetrical application of section 23. It should not be the case that rights holders and their boards are constitutionally entitled to exercise management of school admissions in some jurisdictions, and not in others.

B. Facts

5. Saskatchewan intervenes in this appeal pursuant to Rule 61(4) of the Rules of the Supreme Court of Canada and a Notice of Intention to Intervene filed with the Registrar dated September 9, 2014.

6. Saskatchewan accepts the facts as set out in the Respondent's Factum, the Attorney General ofYukon.

PART II POINTS IN ISSUE

A. The Constitutional Questions

7. The Constitutional Questions set out in the Order of the Chief Justice2 read as follows: 1. Do sections 2, 5 and 9 of the French Language Instruction Regulation, YOIC 1996/099, infringe section 23 ofthe Canadian Charter ofRights and Freedoms?

2. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under section 1 of the Canadian Charter ofRights and Freedoms?

2 Order ofMcLachlin C.J., dated August 21, 2014; Appellant's Factum, Appendix B. Publication Ban Interdiction de publication 3

B. Position of the Intervener

8. Saskatchewan submits that the answers to the Constitutional Questions are "no" and "yes" respectively.

9. In its submissions, Saskatchewan will focus on the first Constitutional Question.

PART III

ARGUMENT

A. Scope of the Constitutional Question

10. The first Constitutional Question goes to the constitutionality of specific sections of the French Language Instruction Regulation, YOIC 1996/099 (the "Yukon Regulation"). The Constitutional Question raises the issue of the proper exercise of governmental authority. That is, given section 23, what is the provincial or territorial government's competence in regulating the delivery and funding of education for both the minority and majority school divisions across the Province?

11. Saskatchewan submits that the Court's determination has the potential to further define and delineate the relationship between the provincial governments and minority-language school boards and to clarify their respective areas of responsibility in the delivery of minority language education. A right to management and control that varies based on the jurisdiction in which it is exercised is inconsistent with the principle of federalism. It would be incongruous to expand the right to management and control and thereby override the categories of rights holders and render the numbers warrant threshold meaningless. Section 23 is a specific limitation on the province or territory's plenary authority pursuant to section 93 of the Constitution Act, 1867.3 A provincial or

3 Constitution Act, 1867 (UK), 30 & 31 Viet, c 3, reprinted in RSC 1985, App II, No 5 [Respondent's Factum Part VII]; or in Yukon, s. 17 of the Yukon Act, SC 2002, c 7 [Saskatchewan's Factum Tab 4]. Publication Ban Interdiction de publication 4

territorial government's jurisdiction pursuant to section 93 should not be curtailed beyond what is necessary to implement the requirements of the Charter.

B. Relevant General Principles

12. Prior to addressing the Constitutional Questions stated on this appeal, Saskatchewan submits it is useful to set out relevant general principles to assist this Court in resolving those questions. i. A Purposive and Generous Interpretation of Section 23

13. Charter interpretation is to be both purposive and generous. And yet these twin principles of interpretation, while "sometimes conflated", are not the same. In R v Grant,4 the Supreme Court of Canada confirms that the purpose of the right remains the primary consideration:

The purpose of a right must always be the dominant concern in its interpretation; generosity of interpretation is subordinate to and constrained by that purpose [ ... ] While a narrow approach risks impoverishing a Charter right, an overly generous approach risks expanding its protection beyond its intended purposes. 5

14. While the interpretation is to be generous rather than legalistic it remains "important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore [ ...] be placed in its proper linguistic, philosophic and historical contexts".6 Whereas the remedial aspect of the right may encourage a generous interpretation, the goal of redress for past wrongs should not recast the right beyond its intended purpose.

4 R v Grant, [2009] 2 SCR 353, 2009 SCC 32 at para 17 [Grant] [Saskatchewan's Book of Authorities ("SKBA") Tab 2] . 5 Ibid. , per McLachlin C.J. and Charron J. (citation omitted). 6 R v Big M Drug Mart Ltd., [1985) 1 SCR 295 [Big M] at para 117 [ABA Vol1 Tab 24]. Publication Ban Interdiction de publication 5

15. As explained in R v Big M Drug Mart Ltd. , 7 the purpose of the right is to be ascertained in reference to: • the character and the larger objects of the Charter itself; • the language chosen to articulate the specific right or freedom; • the historical origins of the concepts enshrined; and • the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter.

16. This Court in R v Beaulac states: "language rights must in all cases be interpreted purposively in a manner consistent with the preservation and development of official language communities in Canada."8 Whereas the purpose of the specific right should guide the interpretative process, Saskatchewan submits that so too should the general purpose of the Charter.

17. The Charter "aims to guarantee that individuals benefit from a minimum standard of fundamental rights".9 Legislatures are open to enhancing the threshold by statute but are not constitutionally compelled to do so.

18. Saskatchewan urges a careful interpretation of the Charter in the minority language rights context. To put it simply, section 23 is "quite different from the type of legal rights which courts have traditionally dealt with." 10 The unique nature of the province's positive, financial obligation must be a factor in determining the extent of the obligation. As explained by Chief Justice Dickson in Mahe: [ ... ] Both its genesis and its form are evidence of the unusual nature of s. 23. Section 23 confers upon a group a right which places positive obligations on government to alter or develop major institutional structures. Careful interpretation of such a section is wise; however, this does not mean that courts should not "breathe life" into the expressed purpose of the section, or avoid implementing the possibly novel remedies needed to achieve that purpose.

[emphasis added]

7 Ibid., at para 117. 8 R v Beaulac, [1999] 1 SCR 768 at para 25 [emphasis in original] [Beaulac] [RBA Vol3 Tab 41] . 9 R v Kuldip , [1990] 3 SCR 61 8 at 63 8 [Kuldip] [SKBA Tab 3]. 10 Mahe v Alberta, [1990] 1 SCR 342 at 365 [Mahe] [RBA Vol 2 Tab 30]. Publication Ban Interdiction de publication 6

19. Saskatchewan respectfully submits that to breathe life into the expressed purpose of the provision does not mean to expand the scope beyond that which is expressly and specifically delineated.

C. The Saskatchewan Context

20. This appeal has potential ramifications for Saskatchewan in relation to two general areas in the province: (1) the relevant provincial legislation pertaining to education; and (2) the ongoing litigation in relation to the operating funding of the provincial francophone school board. i. Relevant Provincial Legislation

21. Saskatchewan's relevant provincial legislation both satisfies the government's Charter obligation, and surpasses the basic requirements of the Charter. Section 143 of Th e Education Act, 1995 confirms the right of the children of minority language adults to attend a minority language school at no cost to the student. 11 Section 144 allows the board to admit non-rights holders with the consent of the majority school board. 12 Saskatchewan submits that its current legislative framework represents one (but not the only) workable solution to the challenges inherent in delivering minority language education.

ii. Ongoing Litigation

22. The claim to management and control over the admission of non-rights holders is very much a live issue in Saskatchewan, as demonstrated in a recent decision from the Saskatchewan Court of Queen' s Bench:

Those claims include not only the triple mandate, but, among other things, that the CSF has the right to define the meaning of the term "primary" education in s.23, to determine the age of admission of students, to manage the admission of non-rights holders, and to a student-teacher ratio that

11 Th e Education Act, 1995 , SS 1995, c E-0.2, s 143 [Saskatchewan's Factum Tab 2]. 12 Ibid., s 144; see also, The Education Act, 1995, s 172 and Th e Education Regulations, 1986, RRS c E-0.1 Reg 1, s 20 [Saskatchewan's Factum Tab 2]. Publication Ban Interdiction de publication 7

corresponds to CSF policy. The trial judge may or may not agree with many of these claims. That said, it is fair to say that the full package of rights and obligations are ambitious, and call for the court to build a very significant new edifice on the basis of the principled foundation sketched out by the existing case law. 13

[emphasis added]

23. The decision highlights the potential, perhaps umque, financial consequences arising from the claims:

The CSF takes the position that it is, as a result of this triple mandate, entitled, by way of example, to be funded for programs to promote the emergence of Francophone programs in new communities, to pursue the extracurricular francization of students and their parents, and to provide welcoming services for new immigrants who are not rights holders. 14

24. In 2013, the rights holders issue culminated in a debate about whether, giVen the reparative character of section 23 , Saskatchewan should fund the education of extra-provincial residents attending schools within the Saskatchewan Francophone education system.15 Justice Richards (as he then was), of the Saskatchewan Court of Appeal, determined that Saskatchewan was not required to fund the education of extra-provincial residents. 16 This decision demonstrates that there are necessary limits to a minority school board' s admissions policies, at least to the extent that those policies are funded by a provincial or territorial government.

25. As these claims demonstrate, the question of who constitutes a rights holder raises concerns not only for the extent of operating funding to be made available on a per student basis, but also for the funding expectations for associated programs, such as those pertaining to francization, prekindergarten, and integration of non-rights holders students into minority language schools.

13 Saskatchewan v Conseil Scolaire Fransaskois, 2014 SKQB 285 at para 117 [Sk v CSF] [SKBA Tab 5]. 14 Ibid., at para 115. 15 R v Conseil Scolaire Fransaskois, 409 Sask R 277,2013 SKCA 35 [SKBA Tab 3] . 16 Ibid., see for example, paras 18 to 20. Publication Ban Interdiction de publication 8

D. The Interpretative Process

i. The Character and the Larger Objects of the Charter and the Historical Origins of the Right

26. Saskatchewan submits that two factors militate against an overly expansive approach to management and control: first, the provinces must retain a measure of control over provincial funding priorities and institutional mechanisms in the delivery of education; and second, a primary purpose of section 23 is to protect against the assimilation of the minority language community resulting from exposure to the majority language.

a. Control over Provincial Funding Priorities and Institutional Mechanisms

27. Provincial governments must retain a measure of control over provincial funding priorities and institutional mechanisms in the delivery of education. As is recognized in Solski, education falls within the purview of provincial power, and each province continues to have a legitimate interest in the provision and regulation of minority language education. 17 To put it 18 plainly, "[f]ederalism still plays an important role in the application of s. 23" •

28. The provincial government's positive obligation translates into public expenditures aimed at implementing the section 23 guarantee. Saskatchewan submits that the positive nature of the obligation, together with the associated financial ramifications, justifies clear parameters as to the beneficiaries of the right. Clear parameters allow the government to be accountable for the expenditure of public funds under section 23.

29. Saskatchewan acknowledges that the government's authority in matters of minority language education is constrained by section 23. This Court in Mahe confirms that the minority language community has a measure of management and control, along a sliding scale, over the delivery of education, particularly in relation to issues affecting language and culture.19 The

17 Solski, supra note 1 at para 10 [RBA Vo14 Tab 55] citing Arsenault-Cameron v Prince Edward Island, [2000] 1 SCR 3, 2000 SCC 1 at para 53 [ABA Vol1 Tab 2]. 18 Ibid. , at para 10. 19 Mahe, supra note 11 at 375 [RBA Vol2 Tab 30]. Publication Ban Interdiction de publication 9

province must, however, continue to deliver education province-wide, and in so doing must maintain provincial standards of education and be accountable to the public for the use of tax payer funds. The relationship with, and accountability to, the public as a whole means that the government must be able to easily articulate its justifications for its spending priorities.

30. Minority language education is often more costly on a per capita basis than majority language education, a differential which in Saskatchewan has been described as a "very healthy premium".20 The reality and the extent of the cost of minority language education reflect the dynamics of the existing relationships between provincial governments and minority language rights holders. The minority language premium combined with the attendant pressures of a growing province underscore the need for the government to remain accountable for its public spending.

31. Saskatchewan submits that the potential financial implications are a legally relevant consideration in resolving the issues raised by the Constitutional Question. It goes without saying that management and control over admissions could lead to increased enrolment of non-rights holders in francophone schools. Should the government be obligated to fund non-rights holders at the same level as rights holders, overall operational funding levels will necessarily escalate. Saskatchewan submits it should not be constitutionally obligated to pay for the education of non rights holders at the same elevated premium as rights holders.

32. Saskatchewan asks this Court to confirm the existing parameters around management and control so as to safeguard the reliability of the rights holder categories. The categories provide definition and a measure of predictability to the financial obligation. They provide the government with the control necessary to comply with its mandate to deliver province-wide education and equitably distribute public funds. An asymmetrical approach to management and control across jurisdictions would only serve to undermine the clarity that currently exists.

20 Sk v CSF, supra note 13 at para 154 [SKBA Tab 5] . Publication Ban Interdiction de publication 10

b. Protecting Against the Assimilation of the Minority Language Community

33. Furthermore, the very purpose of section 23 is disrupted by such an approach. The purpose of section 23 is to protect Canada's official languages while "preserving and encouraging [the] linguistic and cultural vitality" of the minority communities.2 1 To realize this purpose, section 23 guarantees a homogenous minority language school wherever in the province the numbers warrant. Not all circumstances warrant a separate homogenous school; shared facilities are necessary in some situations. But, as explained by Mark Power and Pierre Foucher, "[o ]nly homogenous schools constitute effective counterweights to the assimilative pressures of the majority language communities."22

34. The courts have consistently have taken caution to interpret the language of section 23 to avoid undermining the categories contrary to its purpose. Saskatchewan submits that the assimilative concerns underlying this cautious approach are relevant beyond the boundaries of Quebec. As explained by this Court in Gosselin:

In rejecting "free access" as the governing principle in s. 23, the framers of the Canadian Charter were concerned about the consequences of permitting members of the majority language community to send their children to minority language schools. The concern at the time (which the intervener, the Commissioner of Official Languages for Canada, submitted is a continuing concern today) was that at least outside Quebec minority language schools would themselves become centres of assimilation if members of the majority language community swamped students from the mmonty. . 1anguage commun1ty.. 23

[emphasis added]

21 Mahe, supra note 11 at 350 [RBA Vo12 Tab 30]. 22 Michel Bastarache, ed, Language Rights in Canada, 2nd ed (Cowansville: Yvon Blais, 2004) at 374 [SKBA Tab 6] . 23 Gosselin, supra note 1 at para 31 [RBA Vo12 Tab 21]. Publication Ban Interdiction de publication 11

35. In Solski, this Court found that it was acceptable for the provincial government to restrict the section 23 entitlement to children who had spent "sufficient" time in a minority language educational institution. To do otherwise would have been to encourage a gradual erosion of the purpose of the right. As explained by the Court:

Provincial governments are entitled to verify that registration and overall attendance in the program, the past and present educational experience of the child, are consistent with participation in the class of beneficiaries defined ins. 23(2).24

36. Saskatchewan submits that certain internal restrictions on the categories of rights holders are valid in that they uphold the very purpose of section 23. In Nguyen25 this Court confirmed the holding in Solski that an artificial background in minority language education may not be a valid entryway into the guarantees provided by section 23. "[A] short period of attendance at a minority language school is not indicative of a genuine commitment and cannot on its own be enough for a child's parent to obtain the status of a rights holder[.]"26 A proper interpretation of section 23 necessitates a "comprehensive analysis of the educational pathways" in question.

37. As the Court in Solski points out, it is contrary to the purpose of section 23 to equate minority language education with immersion education.27 Section 23 was framed with a view to protecting the linguistic minority from cultural dilution, recognizing that admissions policies which go beyond the intended class of beneficiaries risk embracing the immersion ethos. Perpetuating the immersion ethos within a minority language institution may serve to erode the very purpose of section 23 - that is, to protect the language and culture of the minority.

38. In addition to the problem of cultural dilution, open-ended admissions policies present a further risk at the level of governance. Such policies may increase the likelihood that non minority parents will be in a position to exercise control over minority language education. As acknowledged in Mahe, it does occur "that persons who are not, strictly speaking, members of

24 Solski, supra note 1 at para 48 [RBA Vo14 Tab 55]. 25 Nguyen, supra note 1 [RBA Vo13 Tab 36]. 26 Ibid., at para 29 [Describing and confirming the Court's holding in Solski]. 27 Solski, supra note 1 at para 50 [RBA Vo14 Tab 55]. Publication Ban Interdiction de publication 12

the minority language group are exercising control over minority language education" and are entitled to do so .Z8 In Mahe, Chief Justice Dickson suggests that non-minority control would be "a rare occurrence" - and yet, just how rare depends on how loosely the admissions criteria are applied.

ii. The Language Chosen to Articulate the Specific Right

39. The rights holder criteria set out in section 23 is specific, detailed, and clear. The first criterion, Canadian citizenship, applies to all three rights holder categories. It is the first qualifier set out in subsections (1) and (2). Subsection (3) further underscores the importance of citizenship by referring to the "right" under subsections (1) and (2) as being the "right of citizens of Canada".

40. Subsection (3) goes on to create a threshold for the implementation of the right of citizens of Canada, that is, whether the numbers warrant. The right applies where "the number of children of citizens who have such a right" is sufficient. The French version of the section uses similarly straight-forward language: « les citoyens canadiens » and « le droit reconnu aux citoyens canadiens par les paragraphes (1) and (2) ». Saskatchewan submits that there is no room for ambiguity as to the first criterion, that is, whether the rights holders have to be citizens. The right pursuant to section 23 is a benefit of citizenship.

41. For citizens, there are three categories of rights holders as set out in subsections (1) and (2): first, those whose first language learned and still understood is that of the minority population in the province; second, those who have received their primary school instruction in Canada in English or French and reside in a province where that language is the linguistic minority language; and third, those of whom any child has received or is receiving primary or secondary school instruction in the minority language.

28 Mahe, supra note 11 at 379 [RBA Vol 2 Tab 30] . Publication Ban Interdiction de publication 13

9 42. In Ref erence re Education Act of Ontario and Minority Language Education Right/ , the Ontario Court of Appeal performed a similar exercise, reviewing the ordinary meaning of the words to determine whether and to what extent "management and control" formed a part of the entitlement. The Court found that the English version of subsection 23(3)(b) is capable of two interpretations, one of which suggests that the educational facilities appertain to the minority. The French version supports this interpretation. Saskatchewan submits that a degree ofbelonging in relation to facilities, facilities that are explicitly guaranteed in section 23 , is qualitatively different from exclusive authority to admit students who fall outside the scope of the guarantee. Section 23 is an individual right that is exercised collectively. The collective exercise of the right should not be used to override the categories of individual rights holders.

a. The Numbers Warrant Threshold and Management and Control

43 . Granting a minority language school board a constitutional entitlement to admit non rights holders through the exercise of management and control - at public expense - amounts to granting a board the power to unilaterally override the definition of rights holders. This is not how the power of management and control is intended to function. Management and control is granted on a sliding scale, contingent on the number of rights holders. The number of rights holders (or beneficiaries) is not contingent on the extent of management and control.

44. The "numbers warrant" requirement serves as a threshold for the implementation of the section 23 entitlement, reached only with a sufficient "number of children of citizens who have such a right". Without sufficient numbers, there is no constitutional obligation to implement the right guaranteed pursuant to subsections (1) and (2). The numbers warrant threshold necessitates parameters around the categories of rights holders. If the categories lack definition, the threshold becomes meaningless. It is the clarity of the three categories of rights holders that makes it possible to implement the right.

29 Reference reEducation Act of Ontario and Minority Language Education Rights (1984), 10 DLR (4th) 491 (ON CA) [SKBA Tab 4]. Publication Ban Interdiction de publication 14

45. Mahe confirms that, where numbers warrant, minority language parents have a right to management and control over the educational facilities in which their children are taught. The parents' management and control is not absolute but rather a "measure" or a "degree" of management and control, even at the upper end of the sliding scale. 30 The government continues to play a role in the regulation of education, to the extent that such regulation does not interfere with the language and culture of the minority.

46. The effective implementation of the right hinges on its clarity. The parents' management and control extends to those aspects of education that have an effect on minority language and culture - but, for the sake of implementation, cannot so extend to the point of disavowing the text and the purpose of the right. Without the ability to rely on the categories as set out, section 23(3) is unworkable. It is impossible to know whether the numbers warrant in the absence of a system to discern who or what the relevant numbers are.

47. Finally, management and control assumes a certain measure of delegation to a smaller number of rights holders or a board. The remaining rights holders delegate authority on the basis that the board will implement the guarantees arising from section 23. They entrust the implementation of their rights to the board, and it is consistent with section 23 that those rights be well-defined and their outcomes, foreseeable. Clarity provides the rights holders with the greatest assurance that their rights will be respected.

iii. The Meaning and Purpose of the Other Specific Rights and Freedoms with which it is Associated within the Text of the Charter

48. In Big M, Chief Justice Dickson calls for an examination of the meaning and purpose of associated rights and freedoms within the Charter. Sections 15, 27, and 59 are particularly relevant for this contextual exercise. Section 15, the equality provision, intersects with section 23 in its concern for minority rights. Section 27, the interpretative provision, underscores the importance of the multicultural heritage of Canadians. Section 59 is relevant to the extent that it

30 Mahe, supra note 11 at 380 [RBA Vol 2 Tab 30]. Publication Ban Interdiction de publication 15

impacts on the implementation of section 23 within Quebec and the interpretation to be given to section 23 as a whole.

49. Although section 23 must be read in concert with the associated rights, the unique character of section 23 stands out as an exception to sections 15 and 27. Or, as this Court explains in Arsenault-Cameron and then confirms in Gosselin, "s. 23 could also be viewed not as an exception to equality guarantees but as their fulfilment."31 Section 23 accords "special status [to the minority group] in comparison to all other linguistic groups in Canada". 32 The implementation of the section 23 guarantee makes available the education that may otherwise be provided to the majority group.

50. Both in Mahe and Gosselin, this Court rejected the reliance on the equality guarantee as a justification for modifying or expanding the categories of rights holders pursuant to section 23. It is the protection of the minority group that is at the core of section 23 's purpose, not the assignment of further rights to the majority.

51. Saskatchewan submits that section 59 reflects a critical concessiOn with Quebec to solidify the guarantee to minority language rights. It is an explicit compromise intended to protect the majority language community in Quebec - a "built-in" compromise, as it were. The very existence of an explicit compromise militates against adopting provincially specific interpretations of the Charter. If such an irregular approach were intended, Saskatchewan respectfully submits, the Charter would include explicit direction to that effect.

E. The Principle of Federalism

52. This Court's previous decisions in Solski and Nguyen affirm the authority of the provincial government to restrict minority language education to students who have followed a genuine educational pathway or have "sufficient" educational background. This Court has

31 Gosselin, supra note 1 at para 21 [RBA Vol2 Tab 21]. 32 Mahe, supra note 11 at 369 [RBA Vol2 Tab 30]; Gosselin, supra note 1 at paras 21-2 [RBA Vol2 Tab 21]. Publication Ban Interdiction de publication 16

confirmed in the course of these decisions that immersion does not equate to minority language education. Unless these decisions are to be overturned, to find for the Appellant in this matter would amount to a conclusion that a Charter provision is to be interpreted and applied differently in different provinces.

53. Such a conclusion results in asymmetrical federalism. It is submitted that this Honourable Court should avoid a finding that rights holders and their representative boards may exercise extensive management of school admissions in some jurisdictions but not in others. It cannot be the case that rights holders have enhanced rights in particular jurisdictions.

54. Although strictly applicable to the Constitution Acts, the principle of federalism is preserved in section 3 of The Saskatchewan Act. Saskatchewan submits that this principle applies in the current case:

The provisions of the Constitution Acts. 1867 to 1886 shall apply to the Province of Saskatchewan in the same way and to the like extent as they apply to the provinces heretofore comprised in the Dominion as if the said Province of Saskatchewan had been one of the provinces originally united, except in so far as varied by this Act and except such provisions as are in terms made or by reasonable intendment may be held to be specially applicable to or only to affect one or more and not the whole of the said provinces.3

[emphasis added]

55. Saskatchewan submits that the Charter should apply to Saskatchewan in the same way as it does to other provinces. While the Charter provision must be interpreted according to

historical and demographic realities that differ in different regions of the country, this IS a balancing exercise that ought to result in a single consistent interpretation of the Charter.

33 Th e Saskatchewan Act, SC 1905, c 42, s 3 [Saskatchewan' s Factum Tab 3] ; as amended by the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11. Publication Ban Interdiction de publication 17

56. Section 23 of the Charter was negotiated as a single solution for a complex problem with varying considerations across the country. Saskatchewan submits that the existence of section 59 of the Charter demonstrates that exceptions to the single solution were to be made explicitly.

F. Conclusion

57. Saskatchewan submits the first Constitutional Question should be answered in the negative. To grant the school boards extensive or exclusive authority over admissions contradicts both the text and the purpose of section 23. Such an expansion of management and control would inevitably result in an escalation of costs in the delivery of education, a result that would conflict with the specific nature of the rights holder categories. An erosion of the categories would introduce uncertainty into the implementation of the right, which would in tum undermine the purpose of protecting the minority language and the principle of federalism. This Court should avoid a finding that rights holders are constitutionally entitled to exercise extensive management of school admissions in some jurisdictions but not in others.

58. This Court inMahe found that the level ofmanagement and control is granted on a sliding scale, contingent on the number of rights holders in a province. Saskatchewan submits that management and control flows from the text of section 23 and should not be expanded so as to undermine that text. Whether and what the numbers warrant determines the level of management and control. The level of management and control does not determine the numbers.

PART IV COSTS

59. Saskatchewan does not seek costs and submits it is not liable for costs. Publication Ban Interdiction de publication 18

PARTV NATURE OF ORDER SOUGHT

60. Saskatchewan submits that this Court should answer the Constitutional Questions "no" and "yes" respectively.

61. Saskatchewan anticipates using its full 10 minutes of oral argument at the hearing, as set out in Rule 71(5)(c).

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED at Regina, Saskatchewan, this 15th day of December, 2014.

Alan Jacobson Publication Ban

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PART VI TABLE OF AUTHORITIES

Paragraphs

Arsenault-Cameron v Prince Edward Island, [2000] 1 SCR 3, 2000 SCC 1 50

Gosselin (Futor of) v Quebec (A ttorney General), [2005] 1 SCR 238, 2005 1, 34, 49, 50 sec 15

Mahe v Alberta, [1990] 1 SCR 342 18, 29, 33 , 38, 46, 51 , 59

R v Beaulac, [1999] 1 SCR 768 16

R v Big M Drug Mart Ltd. , [1985] 1 SCR 295 14, 15 , 48

R v Conseil Scolaire Fransaskois, 409 Sask R 277, 2013 SKCA 35 24

R v Grant, [2009] 2 SCR 353, 2009 SCC 32 13

R v Kuldip, [1990] 3 SCR 618 17

R v Nguyen, [2009] 3 SCR 208, 2009 SCC 25 1, 36, 52

Reference re Education Act of Ontario and Minority Language Education 42 Rights (1984), 10 D.L.R. (4th) 491 (ON CA)

Saskatchewan v Conseil Scolaire Fransaskois, 2014 SKQB 285 22,23, 30

Solski (Futor of) v Quebec (Attorney General), [2005] 1 SCR 201 , 2005 SCC 1, 35 , 36, 37, 53 14

Legislation

Canadian Charter ofRights and Freedoms, Part I of the Constitution 1, 7, 10-11 , 18, Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 , 26-29, 33 -37, ss 15, 23 , and 59 39-43, 44-49, 52, 56-57

Constitution Act, 1867 (UK), 30 & 31 Viet, c 3, reprinted in RSC 1985, App 11 II, No 5, s 93 Publication Ban

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The Education Act, 1995, SS 1995, c E-0.2, ss 143, 144, and 172 21

The Education Regulations, 1986, RRS c E-0.1 Reg 1, s. 20 21

French Language Instruction Regulation, YOIC 1996/099 7, 10

The Saskatchewan Act, SC 1905, c 42; as amended by the Constitution Act, 54 1982, s. 53(2)

Secondary Sources

Michel Bastarache, ed., Language Rights in Canada, 2nd ed. (Cowansville: 33 Yvon Blais, 2004) Publication Ban

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PART VII STATUTES, REGULATIONS AND RULES

Legislation Tab

Canadian Charter ofRights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 , ss 15, 23, and 59.

The Education Act, 1995, SS 1995, c E-0.2, ss 143, 144, and 172 2 The Education Regulations, 1986, RRS c E-0.1 Reg 1, s 20. 2 The Saskatchewan Act, SC 1905, c 42, s 3. 3 Publication Ban Interdiction de publication Constitution Act, 1982

(c) not to be compelled to be a witness in proceedings against that person in re spect of the offence; (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; (e) not to be denied reasonable bail without just cause; (j) except in the case of an offence under military law tried before a military tri bunal, to the benefit of trial by jury where the maximum punishment for the of fence is imprisonment for five years or a more severe punishment; (g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or wa:s criminal according to the general principles of law recognized by the com munity of nations; (h) if fmally acquitted of the offence, not to be tried for it again and, if fmally found guilty and punished for the offence, not to be tried or punished for it again; and (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

Treatment or punishment 12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

Self-crimination 13. A witness who testifies in any proceedings has the right not to have any in criminating evidence so given used to incriminate that witness in any other proceed ings, except in a prosecution for perjury or for the giving of contradictory evidence.

Interpreter 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

EQUALITY RIGHTS

Equality before and under law and equal protection and benefit of law 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in par ticular, without discrimination based on race, national or ethnic origin, colour, reli gion, sex, age or mental or physical disability.

56 Publication Ban Interdiction de publication Constitution Act, 1982

Affirmative action programs (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups includ ing those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. <84l

OFFICIAL LANGUAGES OF CANADA

Official languages of Canada 16. (1) English and French are the official languages of Canada and have equali ty of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada.

Official languages ofNew Brunswick (2) English and French are the official languages of New Brunswick and have equality of status and equal rights and privileges as to their use in all institutions of the legislature and government ofNew Brunswick.

Advancement of status and use (3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

English and French linguistic communities in New Brunswick 16.1 (1) The English linguistic community and the French linguistic community in New Brunswick have equality of status and equal rights and privileges, including the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities.

Role of the legislature and government ofNew Brunswick (2) The role of the legislature and government of New Brunswick to preserve and promote the status, rights and privileges referred to in subsection (1) is af firmed. <85)

<84) Subsection 32(2) provides that section 15 shall not have effect until three years af ter section 32 comes into force. Section 32 came into force on April17, 1982; therefore, . section 15 had effect on April17, 1985.

<85) Section 16.1 was added by the Constitution Amendment, 1993 (New Brunswick) (see Sl/93-54).

57 Publication Ban Interdiction de publication Constitution Act, 1982

(a) there is a significant demand for communications with and services from that office in such language; or (b) due to the nature of the office, it is reasonable that communications with and services from that office be available in both English and French.

Communications by public with New Brunswick institutions (2) Any member of the public in New Brunswick has the right to communicate with, and to receive available services from, any office of an institution of the legis lature or government ofNew Brunswick in English or French.

Continuation of existing constitutional provisions 21. Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada. <92>

Rights and privileges preserved 22. Nothing in sections 16 to 20 abrogates or derogates from any legal or cus tomary right or privilege acquired or enjoyed either before or after the coming into force of this Charter with respect to any language that is not English or French.

MINoRITY LANGUAGE EoucATIONAL RIGHTS

Language of instruction 23. (1) Citizens of Canada (a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or (b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province, have the right to have their children receive primary and secondary school instruc tion in that language in that province. <93>

Continuity of language instruction (2) Citizens of Canada of whom any child has received or is receiving primary or secondary school instruction in English or French in Canada, have the right to have

<92> See, for example, section 133 of the Constitution Act, 1867 and the reference to the Manitoba Act, 1870 in footnote (67) to that section.

<93> Paragraph 23(1)(a) is not in force in respect of Quebec. See section 59, below.

59 Publication Ban Interdiction de publication Constitution Act, 1982 all their children receive primary and secondary school instruction in the same lan guage.

Application where numbers warrant (3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province (a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and (b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds.

ENFORCEMENT

Enforcement of guaranteed rights and freedoms 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Exclusion of evidence bringing administration of justice into disrepute (2) Where, in proceedings under subsection (1 ), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the ad ministration of justice into disrepute.

60 Publication Ban Interdiction de publication Constitution Act, 1982

GENERAL

Aboriginal rights and freedoms not affected by Charter 25. The guarantee in this Charter of certain rights and freedoms shall not be con strued so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 17 63; and (b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired. <94>

Other rights and freedoms not affected by Charter 26. The guarantee in this Charter of certain rights and freedoms shall not be con strued as denying the existence of any other rights or freedoms that exist in Canada.

Multicultural heritage 27. This Charter shall be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians.

Rights guaranteed equally to both sexes 28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

Rights respecting certain schools preserved 29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, 9 separate or dissentient schools. <5)

Application to territories and territorial authorities 30. A reference in this Charter to a province or to the legislative assembly or leg islature of a province shall be deemed to include a reference to the Yukon Territory and the Northwest Territories, or to the appropriate legislative authority thereof, as the case may be.

<94> Paragraph 25(b) was repealed and re-enacted by the Constitution Amendment Proclamation, 1983 (see SI/84-102). Paragraph 25(b) originally read as follows: (b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way ofland claims settlement.

<95) See section 93 of the Constitution Act, 1867 and footnote (50).

61 Publication Ban Interdiction de publication Constitution Act, 1982

Commencement of paragraph 23(1)(a) in respect of Quebec 59. (1) Paragraph 23(1)(a) shall come into force in respect of Quebec on a day to be fixed by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

Authorization of Quebec (2) A proclamation under subsection (1) shall be issued only where authorized by the legislative assembly or government of Quebec. <109>

Repealoftlllssection (3) This section may be repealed on the day paragraph 23(1)(a) comes into force in respect of Quebec and this Act amended and renumbered, consequentially upon the repeal of this section, by proclamation issued by the Queen or the Governor General under the Great Seal of Canada.

Short title and citations 60. This Act may be cited as the Constitution Act, 1982, and the Constitution Acts 1867 to 1975 (No. 2) and this Act may be cited together as the Constitution Acts, 1867 to 1982.

References 61. A reference to the "Constitution Acts, 1867 to 1982" shall be deemed to in clude a reference to the "Constitution Amendment Proclamation, 1983". <110>

(109) No proclamation has been issued under section 59.

<110> Section 61 was added by the Constitution Amendment Proclamation, 1983 (see SII 84-102). See also section 3 of the Constitution Act, 1985 (Representation), S.C. 1986, c. 8, Part I and the Constitution Amendment, 1987 (Newfoundland Act) (see Sl/88-11).

71 Publication Ban Interdiction de publication 82

c. E-0.2 EDUCATION, 1995

(2) A person's right to receive instruction mentioned in clause (1)(b) is the right to instruction in courses of instruction approved by the board of education: (a) in the schools of the school division; or (b) subject to the stated policies, requirements and conditions of the board of education, in any schools or institutions outside the school division with which the board of education has made arrangements to provide certain services to pupils of the school division. (3) Except as otherwise provided in this Act, the educational services provided pursuant to this section are to be provided at the cost of the school division, and no fees for tuition, transportation or any other expenses with respect to attendance at school are to be charged with respect to a pupil who is resident in the school division or whose parent or guardian is a resident in the school division. (4) Notwithstanding subsection (3) , the board of education may require payment in whole or in part of costs incurred with respect to transportation pertaining to special projects or special equipment or supplies not ordinarily furnished to pupils under the policies of the board of education. (5) Subject to the regulations, when a pupil who is resident in one school division is accepted by a board of education to attend a school in another school division, no fees for tuition are to be charged with respect to the pupil's attendance at the school in the other school division. (6) Subject to the regulations, if a pupil mentioned in subsection (5) attends school in another school division, the board of education for that school division is not required to provide the pupil with school transportation services or to pay for school transportation services for the pupil. 1995, c.E-0.2, s.142; 1998, c.21, s.58; 2013, c.9, s.11.

Right to attend school at cost of conseil scolaire 143(1) Subject to the other provisions in this Act, every person who has attained the age of six years but has not attained the age of 22 years and whose parent is a minority language adult has the right: (a) to attend a fransaskois school in the francophone education area in which that person's parent who is a minority language adult, or that person's guardian, is resident; and (b) to receive instruction appropriate to that person's age and level of educational achievement in courses of instruction approved by the conseil scolaire: (i) in the fransaskois school in the francophone education area; or (ii) subject to the stated policies, requirements and conditions of the conseil scolaire, in schools or other educational institutions outside the division scolaire francophone with which arrangements have been made by the conseil scolaire to provide certain services to pupils of the francophone education area. Publication Ban Interdiction de publication 83

EDUCATION, 1995 c. E-0.2

(2) Except as otherwise provided in this Act, the educational services provided pursuant to subsection (1) are to be provided at the cost of the conseil scolaire and no fees for tuition, transportation or any other expenses with respect to attendance at a fransaskois school are to be charged with respect to a pupil whose parent is a minority language adult and whose parent or guardian is a resident in the division scolaire francophone. (3) Notwithstanding subsection (2), the conseil scolaire may require payment in whole or in part of costs incurred with respect to transportation pertaining to special projects or special equipment or supplies not ordinarily furnished to pupils under the policies of the conseil scolaire. (4) Subject to the regulations, when a pupil who is resident in one francophone education area, and whose parent is a minority language adult, is accepted by the conseil scolaire to attend a fransaskois school in another francophone education area, no fees for tuition are to be charged with respect to the pupil's attendance at the fransaskois school in the other francophone education area. (5) Subject to the regulations, if a pupil mentioned in subsection (4) attends a fransaskois school in another francophone education area, the conseil scolaire is not required to provide the pupil with school transportation services or to pay for school transportation services for the pupil. 1995, c.E-0.2, s.143; 1998, c.21, s.59; 2013, c.9, 8.12.

Attendance of others at fransaskois school 144 A person who has attained the age of six years but has not yet attained the age of 22 years and whose parent is not a minority language adult may attend a fransaskois school in any francophone education area that exists or becomes established if the attendance of that person at a fransaskois school in the francophone education area is agreed to by: (a) the board of education of the school division where the person would otherwise attend school; and (b) the conseil scolaire. 1995, c.E-0.2, s.144; 1998, c.21, s.60.

Access to high schools 145(1) Notwithstanding any other provision of this Act, any person who is a resident of a city in which a public school division and a separate school division have been established may declare his or her intention to enrol one or more of his or her children who are eligible to register in Grade 9, 10, 11 or 12 in a school in either the public school division or the separate school division. (2) A declaration of intention pursuant to subsection (1) is to be given in writing to the boards of education of the school divisions affected prior to June 1 in any year and is effective from the commencement of the next following school year. Publication Ban Interdiction de publication 97

EDUCATION, 1995 c. E-0.2

Recovery of costs 171 Subject to the regulations, where a board of education provides educational services to persons other than those mentioned in section 142, it may recover the costs of those services. 1995, c.E-0.2, s.171.

Recovery of costs by conseil scolaire 172 Subject to the regulations, where a conseil scolaire provides educational services to persons other than those mentioned in section 143, the conseil scolaire may recover the costs of those services. 1995, c.E-0.2, s.172.

Fees for resident persons 173(1) In this section, "resident" means a person whose place of residence is inside the boundaries of the school division in which the person seeks or is provided with educational services. (2) Where a pupil, or a parent or a guardian of a pupil, is a resident of that portion of an Indian reserve that is included in a school division, subsection 142(2) does not apply, and the board of education may charge any tuition fees in the amounts prescribed in an agreement between the board of education and the Indian band or the Government of Canada or, where no agreement exists, any tuition fees in the amounts prescribed in the regulations. (3) A board of education may charge tuition fees calculated in accordance with the regulations with respect to a pupil where the pupil, or a parent or a guardian of a pupil, is a resident, but where neither the pupil nor a parent of the pupil is: (a) a Canadian citizen or permanent resident; (b) lawfully admitted to Canada as a temporary resident; (c) a refugee or the subject of a refugee claim made in the previous year; or (d) a reciprocal exchange student. 1995, c.E-0.2, s.173; 2013, c.9, s.17.

STAFF OF SCHOOLS

Composition of staff of school 174(1) The staff of each school consists of a principal and any number of teachers that the board of education or the conseil scolaire considers necessary and appropriate to conduct the program of instruction approved by it for each school, and may include any other assistant principals, teaching and supervisory assistants, consultants, educational assistants and support staff that the board or the conseil scolaire may authorize with respect to each school in its jurisdiction. (2) Notwithstanding subsection (1), in a school in which not more than one teacher is employed, the board of education or the conseil scolaire may designate that teacher to be the principal of the school. 1995, c. E-0.2, s. 174; 2008, c.ll, s.8. Publication Ban Interdiction de publication 16 E-0.1 REG 1 EDUCATION, 1986

Tuition fee amount 20(1) In accordance with this section, a board of education may establish a tuition fee amount to be charged pursuant to sections 171 and 173 of the Act. (2) In accordance with this section, the conseil scolaire may establish a tuition fee amount to be charged pursuant to section 172 of the Act. (3) For the purposes of subsections (1) and (2) , a board of education or the conseil scolaire, as the case may be, shall calculate the tuition fee amount payable with respect to a pupil in accordance with the following formula, using budgeted expenditures of the board of education or conseil scolaire for the particular fiscal year:

Tuition fee amount = (Expenditures -Recovered Costs) -o-- Enrolment. (4) For the purposes of subsection (3) , expenditures are outlined in the chart of accounts and are to be determined by adding the following expenses of the board of education or conseil scolaire: (a) governance expenses; (b) administration expenses; (c) instruction expenses; (d) plant operation and maintenance expenses; (e) complementary services expenses; (f) other expenses. (5) For the purposes of subsection (3), the following expenses as outlined in the chart of accounts are to be excluded from the calculation of the tuition fee amount: (a) costs of pupil transportation; (b) payments of tuition fees to other boards of education or to the conseil scolaire; (c) external service expenses; (d) allowances for: (i) uncollectable taxes; (ii) losses on disposal of tangible capital assets; and (iii) write-downs of tangible capital assets; (e) prekindergarten program expenses. (6) For the purposes of subsection (3), the recovered costs to be deducted from the expenditures in the calculation of the tuition fee amount are the reimbursements received by the board of education or conseil scolaire related to the expenses mentioned in subsections (4) and (5) , not including grant revenue received from the Government of Saskatchewan. Publication Ban Interdiction de publication 17

EDUCATION, 1986 E-0.1 REG 1

(7) A board of education or the conseil scolaire may charge fees for the transportation of pupils described in sections 171, 172 and 173 of the Act, but, in accordance with clause (5)(a), the calculation of those fees must be separate from the calculation of the tuition fee amount. (8) Notwithstanding subsection (3), if a board of education or the conseil scolaire has a tuition fee arrangement with another party, the board of education or conseil scolaire: (a) may make adjustments to the calculation of the tuition fee amount with the consent of the parties to the arrangement; or (b) shall make adjustments to the calculation of the tuition fee amount if the agreement among the parties requires that adjustments be made. (9) A board of education or the conseil scolaire shall inform the minister of any adjustments made pursuant to subsection (8) to the tuition fee amount. (10) The parties to arrangements with respect to the payment of the tuition fee amount shall, by agreement, set the dates by which the tuition fee amount is to be paid. 14 Dec 2012 SR 87/2012 s3.

PARTV.1 School Year

Application of Part 20.1 This Part applies with respect to the 2013-2014 school year and subsequent school years. 14 Dec 2012 SR 87/2012 s4.

School holidays 20.2(1) The following days are school holidays: (a) Saturdays and Sundays; (b) Family Day, Good Friday, Victoria Day, Labour Day, Thanksgiving Day and Remembrance Day; (c) any day proclaimed as a holiday by the Governor General or the Lieutenant Governor. (2) When Remembrance Day falls on a Saturday or Sunday, the Monday following that day is to be observed as the school holiday. (3) A holiday declared by the mayor of a city, town or village or the reeve of a rural municipality in which a school is situated is not a school holiday unless the board of education or conseil scolaire declares it to be. (4) Notwithstanding subsection (1), one or more Saturdays may be declared to be school days by resolution of the board of education or conseil scolaire. 14 Dec 2012 SR 87/2012 s4. Publication Ban Interdiction de publication 3

SASKATCHEWAN ACT

APPENDIXE 4-5 EDWARD VII, CHAPTER 42

An Act to establish and provide for the Government of the Province of Saskatchewan [Assented to July 20, 1905]

Preamble WHEREAS in and by The British North America Act, 1871, being chapter 28 of the Acts of the Parliament of the United Kingdom passed in the session thereof held in the thirty-fourth and thirty-fifth years of the reign of Her late Majesty Queen Victoria, it is enacted that the Parliament of Canada may from time to time establish new provinces in any territories forming for the time being part of the Dominion of Canada but not included in any province thereof and may at the time of such establishment make provision for the constitution and administration of any such province and for the passing of laws for the peace, order and good government of such province and for its representation in the said Parliament of Canada; And whereas it is expedient to establish as a province the territory hereinafter described and to make provision for the government thereof and the representation thereof in the Parliament of Canada: Therefore His Majesty by and with the advice and consent ofthe Senate and House of Commons of Canada enacts as follows: Short title 1 This Act may be cited as "The Saskatchewan Act." Province of Saskatchewan formed: its boundaries 2 The territory comprised within the following boundaries, that is to say: Commencing at the intersection of the international boundary dividing Canada from the United States of America by the west boundary of the Province of Manitoba, thence northerly along the said west boundary of the Province of Manitoba to the north-west corner of the said Province of Manitoba; thence continuing northerly along the centre of the road allowance between the twenty-ninth and thirtieth ranges west of the principal meridian in the system of Dominion lands surveys as the said road allowance may hereafter be defined in accordance with the said system to the second meridian in the said system of Dominion lands surveys as the same may hereafter be defined in accordance with the said system; thence northerly along the said second meridian to the sixtieth degree of north latitude; thence westerly along the parallel of the sixtieth degree of north latitude to the fourth meridian in the said system of Dominion lands surveys as the same may be hereafter defined in accordance with the said system; thence southerly along the said fourth meridian to the said international boundary dividing Canada from the United States of America; thence easterly along the said international boundary to the point of commencement, is hereby established as a province of the Dominion of Canada to be called and known as the Province of Saskatchewan. B.N.A. Acts 1867 to 188, to apply 3 The provisions of The British North America Acts, 1867 to 1886 shall apply to the Province of Saskatchewan in the same way and to the like extent as they apply to the provinces heretofore comprised in the Dominion as if the said Province of Saskatchewan had been one of the provinces originally united, except in so far as varied by this Act and except such provisions as are in terms made or by reasonable Publication Ban Interdiction de publication 4

SASKATCHEWAN ACT

intendment may be held to be specially applicable to or only to affect one or more and not the whole of the said provinces. Representation in the Senate 4 The said province shall be represented m the Senate of Canada by four members: Provided that such representation may after the completion of the next decennial census be from time to time increased to six by the Parliament of Canada. Representation in the House of Commons 5 The said province and the Province of Alberta shall until the termination of the Parliament of Canada existing at the time of the first readjustment hereinafter provided for continue to be represented in the House of Commons as provided by chapter 60 of the Statutes of 1903 each of the electoral districts defined in that part of the schedule to the said Act which relates to the North-West Territories whether such district is wholly in one of the said provinces or partly in one and partly in the other of them being represented by one member. Readjustment after next quinquennial census 6 Upon the completion of the next quinquennial census for the said province the representation thereof shall forthwith be readjusted by the Parliament of Canada in such manner that there shall be assigned to the said province such a number of members as will bear the same proportion to the number of its population ascertained at such quinquennial census as the number sixty-five bears to the number of the population of Quebec as ascertained at the then last decennial census; and in the computation of the number of members for the said province a fractional part not exceeding one-half of the whole number requisite for entitling the province to a member shall be disregarded and a fractional part exceeding one-half of that number shall be deemed equivalent to the whole number and such readjustment shall take effect upon the termination of the parliament then existing. Subsequent readjustments (2) The representation of the said province shall thereafter be readjusted from time to time according to the provisions of section 51 of The British North America Act, 1867. Election of members of House of Commons 7 Until the Parliament of Canada otherwise provides the qualifications of voters for the election of members of the House of Commons and the proceedings at and inconnection with elections of such members shall mutatis mutandis be those prescribed by law at the time this Act comes into force with respect to such elections in the North-West Territories. Executive Council 8 The Executive Council of the said province shall be composed of such persons under such designations as the Lieutenant Governor from time to time thinks fit Seat of Government 9 Unless and until the Lieutenant Governor in Council of the said province otherwise directs by proclamation under the Great Seal the seat of government of the said province shall be at Regina. Publication Ban Interdiction de publication 16

E-0.1 REG 1 EDUCATION, 1986

Tuition fee amount 20(1) In accordance with this section, a board of education may establish a tuition fee amount to be charged pursuant to sections 171 and 173 of the Act. (2) In accordance with this section, the conseil scolaire may establish a tuition fee amount to be charged pursuant to section 172 of the Act. (3) For the purposes of subsections (1) and (2), a board of education or the conseil scolaire, as the case may be, shall calculate the tuition fee amount payable with respect to a pupil in accordance with the following formula, using budgeted expenditures of the board of education or conseil scolaire for the particular fiscal year:

Tuition fee amount = (Expenditures - Recovered Costs) + Enrolment. (4) For the purposes of subsection (3), expenditures are outlined in the chart of accounts and are to be determined by adding the following expenses of the board of education or conseil scolaire: (a) governance expenses; (b) administration expenses; (c) instruction expenses; (d) plant operation and maintenance expenses; (e) complementary services expenses; (f) other expenses. (5) For the purposes of subsection (3), the following expenses as outlined in the chart of accounts are to be excluded from the calculation of the tuition fee amount: (a) costs of pupil transportation; (b) payments of tuition fees to other boards of education or to the conseil scolaire; (c) external service expenses; (d) allowances for: (i) uncollectable taxes; (ii) losses on disposal of tangible capital assets; and (iii) write-downs of tangible capital assets; (e) prekindergarten program expenses. (6) For the purposes of subsection (3), the recovered costs to be deducted from the expenditures in the calculation of the tuition fee amount are the reimbursements received by the board of education or conseil scolaire related to the expenses mentioned in subsections (4) and (5), not including grant revenue received from the Government of Saskatchewan.