Substantive equality is the norm of Jurisprudence, even in the case of language
A school is much more than just a place to pass on theoretical and practical knowledge. It is also a setting for socialization where students can converse with one another and develop their potential in their own language and, in using it, familiarize themselves with their culture.
The essential role that language plays in human existence, development and dignity”, and its importance in “bridging the gap between isolation and community” We can stress the interplay of language and culture, stating that “any broad guarantee of language rights, especially in the context of education, cannot be separated from a concern for the culture associated with the language. Language is more than a mere means of communication, it is part and parcel of the identity and culture of the people speaking it”. Again “language and culture are not synonymous, but the vitality of the language is a necessary condition for the complete preservation of culture”.
The existence of majority language schools that serve a given number of students, regardless of where they are located in the province, supports a presumption that the province considers maintaining those schools to be appropriate from the standpoint of pedagogy and cost, and thus that it is appropriate to create a comparably sized homogeneous school for the minority. The test used to assess the quality of the educational experience provided to official language minorities does not vary with the number of minority language students. Equity gives official language minority the right to instruction that is equivalent in quality to the instruction provided to the majority.
The “substantive equivalence” analysis seeks to evaluate the quality of services provided to minority rights holders. The analysis is circumscribed by comparing the quality of the level of services that is warranted for the number of minority language students with the quality of that same level of services provided to neighboring schools. The analysis must remain global and contextual and must be mindful that instruction cannot be dissociated from the facilities in which it is provided. Multiple factors may be considered, including the quality of instruction, teachers, physical facilities, educational outcomes, extracurricular activities, and travel time. The relevant factors, as dictated by the circumstances of each case, are considered together in assessing whether the overall educational experience is inferior in a way that could discourage rights holders from enrolling their children in a minority language school. These considerations are applied from the standpoint of the reasonable rights holder parent, comparing the minority language school with the local majority schools that represent realistic alternatives for them.
Starting with the assumption that the question of language is an integral part of national history. It is a dominant theme that is reflected in legislative initiatives from key points in the country’s history. In language matters, the legislative pendulum has swung back and forth between two conflicting approaches, one based on policies of assimilation, and the other on promoting the development and autonomy of official language communities.
In adopting the Canadian Constitution, the framers took an initial step in favouring the recognition of language rights in education. At a time when language and religion often went hand in hand, the framers’ purpose in adopting circumstances which gave the provinces the exclusive power to make laws in relation to education. This was intended indirectly to protect French language and culture because it enabled French‑speaking Quebecers, who were in the minority in the country as a whole but in the majority in their province, to control their education system. The constitution preserved the rights of the Catholic minority in Ontario and the Protestant minority in Quebec in the area of education. The Constitution Act, 1867 did not, however, put an end to the tension that existed between those who advocated a unilingual conception of the country and those who championed a bilingual state. This tension can be explained by, among other things, the fact that at that time, many believed that a true national state should have a shared identity and thus a single common language, and saw education in that single language as a key to creating that shared identity. The use of any language other than English was merely a concession and not a right, as it is said in Canada:
“It is a perfectly natural thing that those of French descent should love their noble language, and even passionately desire to promote, as far as reasonably possible, its perpetuation here. One may even respect a similar sentiment on the part of the Germans, the Italians, and the others settled among us to whom the English is a foreign tongue. But it is not to be ignored or forgotten that, while all are tolerated, the official language of this Province, as of the Empire, is English, and that the official use of any other language is in the nature of a concession and not of a right”.
The historical and social context at the root of language rights in education makes clear the unique role of Canada’s constitutional landscape. In an oft‑quoted passage, illustrated the section’s importance by stating that it represents a “linchpin in this nation’s commitment to the values of bilingualism and biculturalism”. Again Canada has a bicultural founding character and that its commitment to bilingualism sets it apart among nations.
Purpose of the national constitution is to preserve culture and language, two core elements of the notion are of identity in said terms, then the well‑being of individuals and communities. We would also point out that, unlike some other rights in the constitution, it recognizes rights that are assessed not only in individual terms but also on a collective level. The rights conferred constitution are individual rights, but they have a collective scope. This means that the courts must, in interpreting the constitution consider each language group’s social context, demographics, and history. The courts thus have the delicate task of reconciling who are in the majority in that province but whose language is in the minority in the country as a whole, perceive their future in a Nation. “existence of a political compromise is without consequence with regard to the scope of language rights”. In Indian experience, in the South, divergent languages enjoy a common Vedic heritage and thus well integrated with the Vedics of the North. To limit the scope of language rights resulted from a political compromise would represent a bad trend, though many rights that have been granted were dearly won over many years, and it is up to the courts to give full effect to them, and to do so clearly and transparently, with a clearcut view of further national integration.
A small rural school is often the only solution when it comes to providing instruction to people living in remote locations, whereas, in the context of linguistic minorities, a homogeneous school, while it is of course one possible solution, is not the only one. It is sometimes possible to provide instruction to small groups either in a heterogeneous school or in a program of instruction. Moreover, financial considerations are not the same in urban and rural areas. The cost of acquiring land can be lower in a village than in a large urban centre. Nevertheless, official language minority schools, like rural schools, serve to meet the essential educational needs of isolated populations, needs that are distinctive from a geographical or a sociolinguistic standpoint. It therefore cannot be argued that small rural schools must be systematically excluded from the province‑wide comparison. Instead, exceptional cases should be excluded one by one. When a province operates small schools with limited numbers of students in certain parts of its territory, it necessarily believes that they satisfy the pedagogical needs of the students enrolled in them and that they are warranted having regard to the principles governing the sound use of public funds. Thus, pedagogical considerations usually encompass those related to cost. In exceptional cases, which will most certainly be rare, the province can still show that a proposed school is inappropriate on the basis either of the students’ pedagogical needs or of cost. In the question of Substantive equivalence, the inherent characteristics of a small school are neutral considerations in the balancing of the factors used to assess the educational experience. They must not be taken into account in the equation. What these characteristics mean is, in particular, that a parent cannot expect there to be the same number of specialized teachers or the same range of facilities as at a big school. In addition, the size of a small school can sometimes require that multiple grades be combined in individual classes in order to attain a sufficient number of students. These are circumstances that a reasonable parent is prepared to accept if his or her child attends a small school. But the demand for good governance can not be overlooked. The limited government immunity is justified by the fact that the law is the “source” of duty for the government.
Substantive equivalence compliance
When assessing the substantive equivalence of the services provided, the analysis is circumscribed by comparing the quality of the level of services that is warranted for minority language students with the quality of that same level of services provided to neighbouring schools. In other words, when only instruction is warranted, the “substantive equivalence” analysis will assess whether the quality of instruction of the minority is comparable to the quality of instruction of the majority, taking into account the nature and quality of the facilities necessary to provide instruction. Similarly, when access to certain facilities is warranted as part of the level of service to which rights holders are entitled, the quality of those facilities and the quality of similar facilities granted to the majority locally will be included in assessing the substantive equivalence of the global educational experience provided to them. On the other hand, when a particular service is not warranted (e.g. non‑core facilities), the quality of that service will not be taken into account in the “substantive equivalence” analysis. This is particularly important to bear in mind where elementary and secondary education are provided within the same homogeneous facility. Indeed, one must not lose sight of where either group of rights holders stands on the sliding scale. If elementary‑age students fall at the upper end of the scale and are entitled to homogeneous facilities but secondary‑age students fall at the middle of the scale and are entitled only to instruction with access to core facilities, dispensing both elementary and secondary education within the same homogeneous facility does not give rise to higher entitlement for the secondary‑age students (e.g. both will be entitled to a gymnasium, but it might be that no football field is provided for the secondary‑age students). The quality of the services received by secondary‑age students in this scenario must reflect their position on the sliding scale. In conducting their analyses, courts must be careful not to adopt a formalistic approach and must consider the quality of the level of services globally.
An aspect of an educational experience might be so deficient that a reasonable rights holder, even aware of the particularities of a small school, might consider the global educational experience to be meaningfully inferior. We hasten to add that this assessment is necessarily fact‑specific. Different considerations would apply, for example, when a certain facility is necessary to meet the curricular requirements.
Behiels, Michael D. Canada’s Francophone Minority Communities: Constitutional Renewal and the Winning of School Governance. Montréal: McGill‑Queen’s University Press, 2004.
Canada. House of Commons. House of Commons Debates, vol. 3, 1st Sess., 32nd Parl., October 6, 1980, p. 3286.
Canada. Senate and House of Commons. Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and the House of Commons on the Constitution of Canada, No. 38, 1st Sess., 32nd Parl., January 15, 1981, pp. 36‑37.
Canadian Intergovernmental Conference Secretariat. 18th Annual Premiers’ Conference. Statement on Language, Doc. 850‑8/027. St. Andrews, N.B., August 18‑19, 1977.
Charles, W.H. Understanding Charter Damages: The Judicial Evolution of a Charter Remedy. Toronto: Irwin Law, 2016.
Cook, Ramsay. “Language Policy and the Glossophagic State”, in David Schneiderman, ed., Language and the State: The Law and Politics of Identity. Cowansville, Que.: Yvon Blais, 1991, 73.
Doucet, Michel, Michel Bastarache, et Martin Rioux. “Les droits linguistiques: fondements et interprétation”, dans Michel Bastarache et Michel Doucet, dir., Les droits linguistiques au Canada, 3e éd. Cowansville, Que.: Yvon Blais, 2013, 1.
Giudici, Anja, and Sandra Grizelj. “National unity in cultural diversity: how national and linguistic identities affected Swiss language curricula (1914‑1961)” (2017), 53 Paedagogica Historica 137.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, 5th ed. Supp. Scarborough, Ont.: Thomson/Carswell, 2007 (loose‑leaf updated 2019, release 1).
Kymlicka, Will. Multicultural Citizenship: A Liberal Theory of Minority Rights. New York: Oxford University Press, 1995.
Martel, Angéline. Official Language Minority Education Rights in Canada: From Instruction to Management. Ottawa: Office of the Commissioner of Official Languages, 1991.
Ontario. Department of Education. English‑French Public and Separate Schools. Circular of Instructions. Toronto, 1913.
Ontario. Department of Education. Roman Catholic Separate Schools and English‑French Public and Separate Schools. Circular of Instructions For the School Year September to June, 1912‑1913: Instructions 17. Toronto, 1912.
The Official Languages of Canada. A National Understanding: Statement of the Government of Canada on the official languages policy. Ottawa: Minister of Supply and Services, 1977.
Trudeau, Pierre Elliott. The Constitution and the People of Canada. Ottawa: Government of Canada, 1969.