A pivotal case

The court case may involve schools in British Columbia, but a good chunk of interest in the outcome is coming from the Atlantic provinces. The case was heard at the Supreme Court of Canada just over a week ago, and it pits the government of British Columbia against its francophone school board and a parents’ group. The question? How much do provinces have to spend to satisfy a guarantee of educational rights to French language students? The rights are included in section 23 of the Charter of Rights and Freedoms. The B.C. board has argued that it has been systemically underfunded, and that francophone students do not enjoy the same benefits as their English-speaking counterparts. For its part, the government of British Columbia argues that there is a point at which small numbers of students can’t expect comparable services at any cost. In some corners, the whole argument has been condensed to “what happens when governments can’t afford to pay for a Charter right?” The attorney general for Prince Edward Island argued “that this court cannot overlook what ultimately would be required in terms of additional facilities, services and programming for minority language schools should the appellant be successful and, in particular, the significant financial impact that it may have on a small jurisdiction.” The P.E.I. submission continued, “Government is required to use limited public funds to ensure the needs of all citizens are met. Requiring a government to remedy every possible (section) 23 breach immediately is impractical and would create an unreasonable burden on the public purse.” Newfoundland and Labrador’s government is making a similar argument, saying: “cost considerations and practical realities must be taken into account … particularly in situations involving relatively small numbers of minority language students located in geographically dispersed communities across a province or territory.” It also makes the point that, “Given economies of scale, higher per capita costs for a minority language board or school are not unexpected; however, there comes a point at which higher costs are simply too high to be reasonable or practical.” The government of Nova Scotia is also involved, though it simply stated that it adopts the B.C. government’s arguments. It comes down to an interesting question, though — one that reaches all the way to the question of whether businesses in older buildings that might not be able to afford to meet accessibility criteria should be able to set aside accessible requirements. Is there a price point where financial costs mean that guaranteed rights don’t have to be delivered? And if you accept that there is a point where costs trump rights, how do you keep that point from becoming a sliding scale that excuses governments from living up to the requirements of the Charter of Rights and Freedoms? It’s a slippery slope.