The Charter and minority-language education rights
Anglophone community has a constitutional right to elect own school boards, Benoît Pelletier writes.
The government of Quebec recently announced its intention to abolish school board elections and modify the structure of a number of school boards. Since then, there has been much discussion about whether the government is constitutionally able to abolish English school board elections, in light of the protection Section 23 of the Canadian Charter of Rights and Freedoms affords language minorities of each province.
I have come to the conclusion that it would be impossible to abolish English school board elections, because the right to hold them stems from the right of parents of the minority language community to have representatives on school boards, which includes the right to decide how to choose those representatives.
This conclusion is not drawn out of thin air. It is based on an interpretation of fundamental decisions by the Supreme Court of Canada that consider Section 23 of the Charter.
Section 23 of the Charter gives children whose parents are of the official language minority the right to attend primary and secondary schools in the minority language of their province, under certain specific conditions. At the core of the debate is the legally recognized level of management and control that same provision bestows upon the minority over its educational facilities and instruction.
The highest court of the country has already established in the Mahe case that it is the parents of the minority community “or persons such parents designate as their representatives” who should exercise management and control. This includes the “appointment and direction of those responsible for the administration of such instruction and facilities.” Does this give minorities the right to choose how they are represented?
An argument could be made that the right to elect representatives through school board elections flows naturally from the provisions of Section 23 of the Charter. In support of this hypothesis, the Supreme Court in Reference Re Public Schools Act explicitly includes school board elections in its enumeration of Section 23 rights of management and control.
In that same decision, the Supreme Court recognized the minister’s role in “develop institutional structures and specific regulations and policies to deal with the unique blend of linguistic dynamics that has developed in the province.” However, the court goes on to say that this role is subordinate to the specific needs of the minority language community and its Section 23 rights.
The constitutional rights of the minority community are notwithstanding the fact that school boards play very different roles and have different effects in the francophone versus anglophone communities; abolishing school board elections would have a very different impact on each community due to the fundamental differences between them.
For instance, francophones vote significantly less and generally show less interest in school board elections compared to the anglophone community.
Historically speaking, the government of Quebec tends to be the source of the francophone identity whereas English school boards tend to have a larger impact on the identity of the anglophone community. Suffice it to say that, with regards to the anglophone community, elected school board members have a direct effect on the vitality of the English language in Quebec.
Furthermore, if we were to consider alternative methods of selecting school board officials, my response is that there seems to be no better way to choose representatives than by elections. Ultimately, if the minority language community chooses to elect its school board officials, that choice should be respected. If it decides not to do so, that should be respected, as well. Regardless of the method it chooses, the anglophone community of Quebec has the constitutional right to retain its school board elections.