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This document: 2000 CanLII 13312 (NS S.C.)
Citation: Doucet-Boudreau v. Nova Scotia (Department of Education), 2000 CanLII 13312 (NS S.C.)
Date: 2000-06-19
Docket: S.H.No.147535

[Noteup] [Cited Decisions and Legislation]

Date: 15062000

Docket: S.H. 147535


                                    IN THE SUPREME COURT OF NOVA SCOTIA



BETWEEN:   GLENDA DOUCET-BOUDREAU, ALICE BOUDREAU, JOCELYN BOURBEAU, BERNADETTE CORMIER-MARCHAND, YOLANDE LEVERT and CYRILLE LEBLANC, in their name and in the name of all Nova Scotia parents who are entitled to the right, under Section 23 of the Canadian Charter of Rights and Freedoms, to have their children educated in the language of the minority, namely the French language, in publicly funded French language school facilities; and LA FÉDÉRATION DES PARENTS ACADIENS DE LA NOUVELLE-ÉCOSSE INC.,



                                                                        - and -








                                                                 D E C I S I O N




HEARD BEFORE:               The Honourable Justice Arthur J. LeBlanc


PLACE HEARD:                  Halifax, Nova Scotia


DATES HEARD:                  October 18, 19, and 20, 1999


DATE OF RECEIPT            November 10, 1999

MEMORANDA OF               November 29, 1999

THE RESPONDENTS:        January 7, 2000



DATE OF RECEIPT            September 10, 1999

MEMORANDA OF               November 23, 1999

THE APPLICANTS:             


WRITTEN RELEASE:         June 15, 2000


COUNSEL:                           Joel E. Fichaud, Q.C., and Melanie S. Comstock, Solicitors

 for the Applicants

Alexander M. Cameron, Solicitor for the Respondent,

Minister of Education

Noella M. Martin, Solicitor for the Respondent,

Le Conseil Scolaire Acadien Provincial



[1]               This is an application pursuant to s. 23 of the Canadian Charter of Rights and Freedoms asking the Court to direct the Nova Scotia Department of Education and le Conseil Scolaire Acadien Provincial to provide homogeneous French programs and homogeneous facilities at the secondary-school level out of public funds in Chéticamp, Isle Madame, Clare, Argyle and Kingston/Greenwood.



[2]               Section 23 of the Charter of Rights and Freedoms is a specific provision dealing with minority language education in Canada.


[3]               Section 23 provides as follows:


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 instruction in that language in that province.


(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 all their children receive primary and secondary school instruction in the same language.


(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.



[4]               The Education Act, as a result of legislative amendments passed in 1996, provides for the establishment of a French school board for the purpose of providing a French-first-language program to the children of s. 23 parents.  The following are the amendments to the Act which relate to the matters in issue:




Power to establish Conseil

11     (1)     The Governor in Council may establish a school board with jurisdiction throughout the Province, a body corporate to be known as the Conseil scolaire acadien provincial, for the purpose of providing a French-first-language program to the children of entitled parents.


Responsibility of Conseil

(2)     The Conseil acadien is responsible for the delivery and administration of all French-first-language programs.


École acadienne

(3)     A public school, or part of a public school, in which a French-first-language program is provided shall be known as an école acadienne.


Consequences of establishing the Conseil

(4)     Upon the establishment of the Conseil acadien,

(a)        every conseil d'école is dissolved;

(b)        the Conseil acadien becomes responsible for the control and management of every educational facility of a conseil d'école;

(c)        the assets and liabilities of the conseils d'école are vested in the Conseil acadien, including all employee benefits and entitlements;

(d)        the vesting of any assets of a conseil d'école in the Conseil acadien does not void any policy of insurance with respect to any of the assets, including any public liability policy, and the Conseil acadien is deemed to be the insured party for the purpose of such policy;

(e)        the Conseil acadien is substituted for a dissolved conseil d'école with respect to any agreement to which the dissolved conseil d'école was a party;

(f)         all persons employed by a conseil d'école become employees of the Conseil acadien, the employment and seniority of each of the employees with the conseil d'école at the time of establishment of the Conseil acadien is deemed to be employment and seniority with the Conseil acadien and the continuity of employment and seniority is not broken;

(g)        the Conseil acadien is a successor employer for the purpose of the Pension Benefits Act;

(h)        the Conseil acadien shall continue to pay any pension or annuity, being paid by a conseil d'école, according to its terms;

(i)         notwithstanding clauses (c) and (f), Section 71 of the Labour Standards Code does not apply to a period of employment with a conseil d’école; and

(j)         Sections 9 and 10 apply mutatis mutandis. 1995-96, c.1, s.11.


Entitlement to program

12     The children of an entitled parent are entitled to be provided a French-first-language program by the Conseil acadien if they otherwise have a right pursuant to this Act to attend a public school and if the numbers warrant the provision of the program out of public funds. 1995-96, c.1, s.12.


Election of Conseil

13  (1)   The Conseil acadien shall be elected by entitled persons, at the same time as the regularly scheduled elections for school boards.


Right to Vote

(2)   An entitled person may vote in an election for the Conseil acadien or for another school board if that person is otherwise entitled to vote in an election for a school board but that person is not entitled to and shall not vote in the same election for both.


Rules respecting voting

(3)   Notwithstanding the Municipal Elections Act,

(a)   for greater certainty, only entitled persons may be members of the Conseil acadien;

(b)   where a person intends to vote in an election for the Conseil acadien, the person may be required pursuant to subsection 83(2) of that Act to take an oath or make an affirmation attesting to that person’s status as an entitled person;

(c)   subsections 83(3) to (5) of that Act apply mutatis mutandis;

(d)   where a person votes in an election for the Conseil acadien, that fact shall be entered in the poll book in the manner directed by the Municipal Elections Officer;

(e)   for greater certainty, the Governor in Council may, pursuant to that Act, alter any forms under that Act for the purpose of this Section; and

(f)   The Municipal Elections Officer may give such directions as may be necessary for the purpose of this Section.


Appointment of first members

(4)   Pending the election of the first Conseil acadien, the Governor in Council shall appoint the members of the Conseil acadien.

Electoral districts

(5)   Commencing with the first election of the members of the Conseil acadien,

(a)   the Province shall be divided into eight electoral districts or such greater number of districts as the Utility and Review Board determines;

(b)   the boundaries of the electoral districts shall be as determined by the Utility and Review Board; and

(c)   the same number of members need not be elected from each electoral district.


Matters for consideration

(6)   In determining the boundaries of the electoral districts and the number of members to be elected from each, the Utility and Review Board shall give consideration to effective representation of the Acadian and Francophone communities in the Province and effective representation shall be considered of greater importance than parity of voting. 1995-96, c.1, s.13.


Designation of facilities

14  (1)   The Governor in Council may designate educational facilities that are to be used to provide a French-first-language instruction program.


Consequences of designation

(2)   Upon designation pursuant to subsection (1) of an educational facility owned by a district school board or regional school board,

(a)   where the educational facility is an entire school, the ownership of the school and its control and management are transferred to the Conseil acadien; or

(b)   where the educational facility is not an entire school, the ownership of the school and its control and management are transferred to the Conseil acadien if the Governor in Council so orders.


Further consequences of designation

(3)   Upon designation pursuant to subsection (1) of an educational facility owned by a municipality,

(a)   where the educational facility is an entire school, the control and management of the school is transferred to the Conseil acadien; or

(b)   where the educational facility is not an entire school, the control and management of the school is transferred to the Conseil acadien if the Governor in Council so orders.


“school” defined

(4)   In subsections (2) and (3), “school” includes the real property upon which the school is situate.


Powers of Governor in Council on designation

(5)   Where an educational facility is designated pursuant to subsection (1), the Governor in Council may, on the recommendation of the Minister after consultation by the Minister with the Conseil acadien and the school board responsible for the facility before the designation,

(a)   after consultation by the Minister or the Minister’s representative with persons employed by a school board in or with respect to the facility or their representative, designate them to become employees of the Conseil acadien;

(b)   designate assets and liabilities of a school board within or pertaining to the facility to be vested in the Conseil acadien;

(c)   designate assets of a school board within or pertaining to the facility, including assets designated pursuant to clause (b), to be shared by the school board and the Conseil acadien;

(d)   designate agreements in which the Conseil acadien is to be substituted for the school board.


Consequences of designation

(6)   Upon designation of a person pursuant to clause (5)(a),

(a)   that person becomes an employee of the Conseil acadien;

(b)   the period of employment and seniority of that person with a school board at the time of designation of that person is deemed to be employment and seniority with the Conseil acadien and the continuity of employment and seniority is not broken;

(c)   the Conseil acadien becomes responsible for all employee benefits and entitlements that person had as an employee of the other school board;

(d)   the Conseil acadien is a successor employer for the purpose of the Pension Benefits Act; and


(e)   Section 9 applies mutatis mutandis.


Vesting of assets and liabilities

(7)   Upon designation of assets and liabilities pursuant to clause (5)(b),

(a)   those assets and liabilities are vested in the Conseil acadien; and

(b)     the vesting of any assets of a school board in the Conseil acadien does not void any policy of insurance with respect to any of the assets, including any public liability policy, and the Conseil acadien is deemed to be the insured party for the purpose of such policy.


Duties of school boards respecting assets

(8)   Upon designation of assets pursuant to clause (5)(c), the assets shall be maintained by the school board that owns the assets and each school board shall pay its share of the costs necessary to operate and maintain those assets, as agreed upon by the school boards.



(9)   Where as a result of a designation pursuant to subsection (1) an educational facility becomes a facility shared by the Conseil acadien and another school board, each school board shall pay its share of the costs necessary to operate and maintain the facility and of the outstanding capital costs pertaining to the facility, as agreed upon by the school boards.


Disagreement on cost-sharing

(10) Where the Conseil acadien and another school board cannot agree upon their shares of the costs referred to in subsection (8) or (9), the Minister shall determine each school board’s share.


Substitution of Conseil for board

(11) Upon designation pursuant to clause (5)(d) of an agreement to which a school board is a party, the Conseil acadien is substituted for the school board with respect to that agreement. 1995-96, c.1, s.14.


Language of administration and operation

15  (1)   Subject to subsection (2), the language of administration and operation of the Conseil acadien and all French-first-language program facilities shall be French.


Use of English

            (2)    When the circumstances warrant the use of English, the Conseil acadien and French-first-language program facilities shall use English. 1995-96, c.1, s.15.


Duties of Conseil

16  The Conseil acadien shall

(a)   promote and distribute information about the French-first-language program;

(b)   include in its learning materials information about the Acadian culture; and

(c)   in providing its educational programs, engage in activities that promote Acadian culture and the French language. 1995-96, c.1, s.16.



[5]               Glenda Doucet-Boudreau, Alice Boudreau, Jocelyn Bourbeau, Bernadette Cormier-Marchand, Yolande Levert and Cyrille LeBlanc are the Applicants who claim to be citizens of Canada who have a right to have their children receive primary and secondary education in the language of the minority in the Province of Nova Scotia, as provided in s. 23 of the Charter. The Applicant, La Fédération des parents acadiens de la Nouvelle-Écosse, inc. (the "Federation") is a nonprofit organization, incorporated in 1984, whose primary mandate is to monitor the educational development and the advancement of educational rights of the Acadian and Francophone minority in Nova Scotia.



[6]               The Respondents are the Department of Education (Department) and Le  Conseil Scolaire Acadien Provincial (Conseil). The Department, established under the Education Act, administers the school system and provides educational programs and services across the province. The Conseil is a  statutory school board established under the Act as a result of recent amendments to the Act ,whose mandate is to provide a French-first-language program to the children of s. 23 entitled parents.


[7]               The Applicants maintain that numerous efforts  made  to obtain homogeneous school programs and facilities have not succeeded even though there is a sufficient number of children to satisfy the requirements of s. 23. The Applicants argue that steps taken to date by the Conseil  and the Department of Education fall far short of the needs and rights of the Applicants and other s. 23 parents.


[8]               The Department did not provide any analysis of the number of students or the costs of additional programs and facilities to meet the demands being made by the Applicants.


[9]               The number of students registered with the Conseil  for the  regions from Grades 9 to 12, for the academic year 1997-98, are as follows:


École NDA                                          125

École R.C. Gordon                                 21

École Sainte-Anne-du-Ruisseau            251

École Secondaire de l'Île Madame        124

École Secondaire de Clare                    322      (including Grade 8)


[10]           The number of students registered with the Conseil  for the  regions from Grades 9 to 12, for the academic year 1998-99, are as follows:


École NDA                                          113

École R.C. Gordon                                 20

École Sainte-Anne-du-Ruisseau            254

École Secondaire de l'Île Madame        106

École Secondaire de Clare                    340        (including Grade 8)                                


[11]           The number of students registered with the Conseil  for the five regions, for Grades 9 to 12, for the current academic year, are as follows:


École NDA                                          106

École R.C. Gordon                                 28

École Sainte-Anne-du-Ruisseau            180

École Secondaire de l'Île Madame         81

École Secondaire de Clare                    310      (including Grade 8)


[12]           The five regions are distinct and none of the facilities which are sought are duplicates of each other, therefore the Department and the Conseil are required to respond to each as it is impossible to transport students from one region to the other.


[13]           The Department announced the construction of schools in 1997, including  a new school for the Strait Regional School Board in northern Inverness County and a new middle school for the Annapolis Valley Regional School Board, which would be built through the P3 process, and in turn leased to the province. Additional school construction was announced in 1999, for the Conseil and the Southwest Regional Board in Petit-de-Grat, Clare, and Argyle.  The new Petit-de-Grat facility had been previously announced as part of the 1997 announcement.


[14]            However, the construction of the schools covered by the 1999 announcement were placed on hold by the newly elected government as it decided to review the P3 funding process and the method of financing the construction of these facilities.  In the September 10, 1999 edition of the Chronicle-Herald, it was reported that new schools being built for the Conseil at Petit-de-Grat and Argyle were on hold and the new schools for the Southwest Regional School Board in Clare and Argyle were also on hold.  The press report was silent on status of the new middle school for the Annapolis Valley Regional Board.  As the facility in North Inverness County is nearing completion, the Chéticamp region was not affected by the decision. Subsequently, in the Speech from the Throne, delivered on the 7th day of October, 1999, the Government of Nova Scotia stated that it was committed to a review. A tender was issued asking for proposals to review the efficacy of the P3 process.


[15]           Attempts by the Conseil were made to obtain a commitment from the Minister of Education to confirm that the construction of the schools, bearing directly on this application, would proceed regardless of the review process in place, which the Minister of Education declined to make.


[16]           The Department insists that since it is committed to building the facilities, such a commitment is an answer to the Applicants’ concerns. It agrees that there might be a delay with the construction  but delay does not constitute a breach of the provisions of the Charter.


[17]           The Applicants maintain the Department is not complying with the requirements of s. 23 of the Charter by its failure to establish  homogeneous French programs and homogeneous French schools and they add that nothing but the actual provision of programs and facilities will suffice. In other words, the Applicants maintain that promises of schools do not equal compliance and that only the actual construction of the schools will be the essence of compliance within the provisions of the Charter.


[18]           It must be stated at the outset that the Department recognizes that the state of French education has contributed to a great extent to both the rate and degree of assimilation but maintains that the province has made progress by the implementation of homogeneous programs at the elementary level and the establishment of the Conseil. It also points to the concerns of Acadians and Francophones fearing that an education too concentrated in French would hinder their children in being sufficiently bilingual, restrict their  opportunity to  attend English-speaking universities, and also affect their social mobility. Furthermore, the Department also points to the needs and requirements of the other Nova Scotia school children which places a demand on public resources.





[19]         The Supreme Court of Canada has decided three cases dealing with s. 23 of the CharterMahe v. Alberta 1990 CanLII 133 (S.C.C.), (1990), 68 D.L.R. (4th) 69, Reference Re Public Schools Act (Manitoba) 1993 CanLII 119 (S.C.C.), (1993), 100 D.L.R. (4th) 723, Arsenault-Cameron v. Prince Edward Island 2000 SCC 1 (CanLII), (2000), 181 D.L.R. (4th) 1.


[20]           In each of the judgements, the Supreme Court of Canada has outlined the purpose of s. 23, the manner in which s. 23 should be interpreted, and the relevant factors which should be considered to determine the  level of programs and facilities entitled parents can claim.





[21]           In Mahe, Chief Justice Dickson  was specific on the purpose of s. 23, at page 82:

. . . it is to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language flourishes, as far as possible, in provinces where it is not spoken by the majority of the population. The section aims at achieving this goal by granting minority language educational rights to minority language parents throughout Canada.


[22]           And in referring to culture, Chief Justice Dickson stated, at page 82 and 83:


My reference to cultures is significant: it is based on the fact 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. It is the means by which individuals understand themselves and the world around them. The cultural importance of language was recognized by this court in Ford v. Québec (A.-G.) 1988 CanLII 19 (S.C.C.), (1988), 54 D.L.R. (4th) 577 at p. 604.


Language is not merely a means or medium of expression; it colors the content and meaning of expression. It is, as the preamble of the Charter of the French Language itself indicates, a means by which a people may express its cultural identity.

(Emphasis added.)


Similar recognition was granted by the Royal Commission on Bilingualism and Biculturalism, itself a major force in the eventual entrenchment of language rights in the Charter. At page 8 of Book II of its report, the Commission stated:


Language is also the key to cultural development. Language and culture are not synonymous, but the vitality of the language is a necessary condition for the complete preservation of a culture.'


And at p. 19, in a comment on the role of minority language schools, the Commission added:


These schools are essential for the development of both official languages and cultures . . . the aim must be to provide for members of the minority an education appropriate to their linguistic and cultural identity . . .

(Emphasis added.)


In addition, it is worth noting that minority schools themselves provide community centres where the promotion and preservation of minority language culture can occur; they provide needed locations where the minority community can meet and facilities which they can use to express their culture.


[23]           In Reference re Public Schools, Chief Justice Lamer, noting the words of Chief Justice Dickson, determined that the specific guarantees of educational rights founded on language links the preservation of a culture with the presence of minority-language schools and  at p. 730, he observed:

The method chosen to advance this goal in s. 23 is to confer upon minority language parents the right to have their children educated in their maternal language, French or English, as the case may be. The legislative structure sets out a general right to all such parents in ss. 23(1) and 23(2), qualified by s. 23(3).




[24]           In Mahe, the court outlined the manner of interpretation of s. 23, at page 85:

The proper way of interpreting s. 23, in my opinion, is to view the section as providing a general right to minority language instruction. Paragraphs (a) and (b) of s.s. (3) qualify this general right: para. (a) adds that the right to instruction is only guaranteed where the "number of children" warrants, while para. (b) further qualifies the general right to instruction by adding that where numbers warrant it includes a right to "minority language educational facilities". In my view, s.s. (3)(b) is included in order to indicate the upper range of possible institutional requirements which may be mandated by s. 23 (the government may, of course, provide more than the minimum required by s. 23).

Another way of expressing the above interpretation of s. 23 is to say that s. 23 should be viewed as encompassing a "sliding scale" of requirement, with s.s. (3)(b) indicating the upper level of this range and the term "instruction" in s.s. (3)(a) indicating the lower level. The idea of a sliding scale is simply that s. 23 guarantees whatever type and level of rights and services is appropriate in order to provide minority language instruction for the particular number of students involved.


[25]           In Reference, Chief Justice Lamer stated, at page 730:

The result is a "sliding scale" of requirements, depending on the number of students to be served. That is to say, what is required in any case will depend on what the numbers warrant; the relevant figure for the purposes of determining "what the numbers warrant" is the number of persons who can eventually be expected to take advantage of a given program or facility. The factors to be considered in determining what s. 23 demands in a particular situation are (a) the pedagogical services which are appropriate for the number of students involved and (b) the cost of the contemplated services. However, as mentioned in Mahe (at p. 100): the remedial nature of s. 23 suggests that pedagogical considerations will have more weight than financial requirements in determining whether numbers warrant.


[26]           In  Arsenault-Cameron, Justices Major and Bastarache stated at p.19 [para.32]:

The province has a duty to provide official minority language instruction where the numbers warrant.  As Dickson C.J. pointed out in Mahe, the sliding scale’ approach to s. 23 means that the numbers standard will have to be worked out by examining the particular facts of each case that comes before the courts.  The relevant number is the ‘number who will potentially take advantage of the service’ (p. 384), which can be roughly estimated as being somewhere between the known demand and the total number of persons who could potentially take advantage of the service; see Mahe, supra, at p. 384.  Lamer C.J. defined the number in Reference re Public Schools Act (Man.) in this way, at p. 850:  ‘the number of persons who can eventually be expected to take advantage of a given program or facility’.


[27]           As was stated in Mahe, and followed in Reference and in  Arsenault-Cameron, it is clear that the Supreme Court of Canada has established a formula which is to be applied to decide the level of services to be provided to children of entitled parents. In Arsenault-Cameron at page 21 [para. 38]:

Mahe explains that the numbers warrant provision requires that two factors be considered in determining the demands of s. 23.  First, it requires a determination of the appropriate services, in pedagogical terms, for the number of students involved.  Then it requires an examination of the costs of the contemplated service.  In addressing the first concern, pedagogical requirements, it is important to consider the value of linguistic minority education as part of the determination of the services appropriate for the number of students.  The pedagogical requirements established to address the needs of the majority language students cannot be used to trump cultural and linguistic concerns appropriate for the minority language students.




[28]           In Arsenault-Cameron, Justices Bastaraches and Major stated, at p. 16 [para. 26 and 27]:

Section 23 imposes a constitutional duty on the province to provide official minority language education to children of s. 23 parents where the numbers warrant.  In Mahe, at pp. 362 and 364, this Court affirmed that language rights cannot be separated from a concern for the culture associated with the language and that s. 23 was designed to correct, on a national scale, the historically progressive erosion of official language groups and to give effect to the equal partnership of the two official language groups in the context of education; see Reference re Public Schools Act (Man.), supra, at p. 849.  Section 23 therefore mandates that provincial governments do whatever is practically possible to preserve and promote minority language education; see Mahe, supra, at p. 367.

As this Court recently observed in R. v. Beaulac, 1999 CanLII 684 (S.C.C.), [1999] 1 S.C.R. 768, at para. 24, the fact that constitutional language rights resulted from a political compromise is not unique to language rights and does not affect their scope. Like other provisions of the Charter, s. 23 has a remedial aspect; see Mahe, supra, at p. 364.  It is therefore important to understand the historical and social context of the situation to be redressed, including the reasons why the system of education was not responsive to the actual needs of the official language minority in l982 and why it may still not be responsive today. It is clearly necessary to take into account the importance of language and culture in the context of instruction as well as the importance of official language minority schools to the development of the official language community when examining the actions of the government in dealing with the request for services in Summerside. As this Court recently explained in Beaulac, at para. 19, "[language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada."  A purposive interpretation of s. 23 rights is based on the true purpose of redressing past injustices and providing the official language minority with equal access to high quality education in its own language, in circumstances where community development will be enhanced. (Emphasis added.)




[29]           The Charter provides that s. 23 parents are entitled to have their children educated in the language of the minority where the numbers warrant and this right is to be exercised by the individual parents and not as part of the group. As Chief Justice Lamer stated in Reference, these rights are not to be exercised at the will of the majority of the minority group.   At page 739:

The rights provided by s. 23, it must be remembered, are granted to minority language parents individually. Their entitlement is not subject to the will of the minority group to which they belong, be it that of a majority of that group, but only to the “numbers warrant” condition.




[30]           It is important to consider that one of the purposes of s. 23 is to remedy past injustices. In Mahe,  at p. 84:

In my view the appellants are fully justified in submitting that "history reveals that s. 23 was designed to correct, on a national scale, the progressive erosion of minority official language groups and to give effect to the concept of the èqual partnership' of the two official language groups in the context of education."

The remedial aspect of s. 23 was indirectly questioned by the respondent and several of the interveners in an argument which they put forward for a "narrow construction" of s. 23.  The following statements by Beetz J. in a case dealing with s. 16 of the Charter, Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, 1986 CanLII 66 (S.C.C.), [1986] 1 S.C.R. 549, at p. 578, were relied upon in support of this argument.

Unlike language rights which are based on political compromise, legal rights tend to be seminal in nature because they are rooted in principle.  Some of them, such as the one expressed in s. 7 of the Charter, are so broad as to call for frequent judicial determination.

Language rights, on the other hand, although some of them have been enlarged and incorporated into the Charter, remain nonetheless founded on political compromise.

This essential difference between the two types of rights dictates a distinct judicial approach with respect to each. More particularly, the courts should pause before they decide to act as instruments of change with respect to language rights.  This is not to say that language rights provisions are cast in stone and should remain immune altogether from judicial interpretation. But, in my opinion, the courts should approach them with more restraint than they would in construing legal rights.                I do not believe that these words support the proposition that s. 23 should be given a particularly narrow construction, or that its remedial purpose should be ignored.  Beetz J. makes it clear in this quotation that language rights are not cast in stone nor immune from judicial interpretation.  In Reference Re Bill 30, An Act to amend the Education Act (Ont.), 1987 CanLII 65 (S.C.C.), [1987] 1 S.C.R. 1148, at p. 1176, Wilson J. made the following comments in respect of the above quotation:

While due regard must be paid not to give a provision which reflects a political compromise too wide an interpretation, it must still be open to the Court to breathe life into a compromise that is clearly expressed.  I agree.  Beetz J.'s warning that courts should be careful in interpreting language rights is a sound one.  Section 23 provides a perfect example of why such caution is advisable. The provision provides for a novel form of legal right, quite different from the type of legal rights which courts have traditionally dealt with. 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.


[31]           This was also confirmed in Reference, at pp. 730-31:

Several interpretative guidelines are endorsed in Mahe for the purposes of defining s. 23 rights.  Firstly, courts should take a purposive approach to interpreting the rights. Therefore, in accordance with the purpose of the right as defined in Mahe, the answers to the questions should ideally be guided by that which will most effectively encourage the flourishing and preservation of the French‑ language minority in the province.  Secondly, the right should be construed remedially, in recognition of previous injustices that have gone unredressed and which have required the entrenchment of protection for minority language rights. As M. A. Green observed in "The Continuing Saga of Litigation:  Minority Language Instruction" (1990‑91), 3 Education & Law Journal 204, at pp. 211‑12:

The Court conceded that the majority cannot be expected to understand and appreciate all of the diverse ways in which educational practices may influence the language and culture of the minority, and thus if section 23 is to remedy past injustices, and ensure that they are not repeated in the future, it is important that the minority have a measure of control over both facilities  and instruction.


[32]         At page 17 of Arsenault-Cameron: [para. 29]

The historical and contextual analysis is important for courts in determining whether a government has failed to meet its s. 23 obligations.  It should also guide governmental actors in reaching appropriate decisions to give effect to s. 23.  In this case, the Minister was of the view that it would be more beneficial for the children to receive their instruction in a homogeneous school located at the heart of the Acadian community.  Insisting on the individual right to instruction, the Minister appeared to ignore the linguistic and cultural assimilation of the Francophone community in Summerside, thereby restricting the collective right of the parents of the school children.




[33]           To determine whether the Applicants should succeed  in their  application,  it is necessary to review the history of French-language education available to Acadians and French-speaking parents in Nova Scotia.


[34]           Yvonne Lombard, President of the Federation, in her affidavit,  relied on the historical piece prepared by Gilberte Couturier LeBlanc, Alcide Godin, and Aldéo Renaud  to profile the background of French education in Nova Scotia. I refer to portions of the text:

In the first years of the Acadian colony education developed more or less according to the human and financial resources available and the fortunes of the colonial wars. Under the French regime, from 1604 to 1713, a few missionaries and nuns taught the rudiments of reading, writing, and arithmetic. Only under British rule, beginning in 1713, did the government undertake to set up a system of public schools to supplement the private ones.

. . .

Acadia's cultural history is influenced by the culture of the two founding peoples and by ideological currents in the early 17th and 18th centuries in France and Great Britain. These two European countries, for reasons of commercial expansion, decided to establish colonies on a new continent while the old continent was experiencing a peacetime economic boom.

. . .

During the French regime, since Roman Catholicism was the state religion of France, the royal government took the necessary steps to ensure a missionary presence at each stage in the colonies' development. These missionaries worked at passing on the Roman Catholic faith and the rudiments of French culture. Teaching was a work of charity on the part of the church, although, in principle, government permission and subsidies were needed to build schools. Most education was provided by missionaries.

. . .

Acadia, which has become the pawn of the great European powers and had been attacked and conquered several times, definitively became a British colony in 1713 with the Treaty of Utrecht. . . . The new administrators' decisions left no doubts as to their long-term objectives: to Anglicize and Protestantize  the Acadians as much as possible. The principal instrument of assimilation would be the school. They therefore expelled the French teachers and recruited Protestant schoolmasters in England. The Acadians resisted these assimilation mechanisms enough to manage to preserve French culture, but with great difficulty.

Very early, the government hastened to exercise control over the schools. In 1770 the King of Great Britain even prohibited Roman Catholics from professing their faith and being educated in French. "If any popish recusant, papist or person professing the popish religion, shall be so presumptuous as to set up any school within this province, and be detected therein, such offender shall, for every such offence, suffer three months imprisonment . . . and shall pay a fine to the King of ten pounds . . . .

For the deportees who had taken refuge in the forest, the most important concern was surviving in unfamiliar terrain. During these years of extreme misery, it was impossible to build schools. After their return, hundreds of refugees clustered in two groups, one on the shores of Baie Sainte-Marie (St. Mary's Bay, N.S.) and the other on Cape Breton Island. Less than ten years after the Deportation the British authorities began to divide Acadia geographically and politically. The Maritime provinces were born of these divisions: Nova Scotia in 1763, Prince Edward Island in 1769, and New Brunswick a little later, in 1784. Each province already contained a few English-language schools when the division occurred. In each province a minimal amount of tolerance on the part of the new provincial governments permitted the construction of a very few French schools. In order to prevent French culture from developing, however, the provincial governments in turn established a network of public English-language schools.

The tragic events of the deportation did not allow much attention to be given to education in French. Moreover, a law passed in 1766 prohibited the establishment of denominational schools and was aimed as much against the Irish Roman Catholics as against the Acadians. After the Roman Catholics took various steps, the law was changed in 1786 to allow their children to receive a Roman Catholic education.

. . .

In 1841, the Nova Scotian government passed a law allowing the teaching of the three languages spoken in Acadia:  English, French, and Gaelic. The Acadians profited from this loosening of the school regulations to improve their private school system. At Arichat, the school built in 1833 was transformed into an academy and a seminary was built in 1853. Soon after, three sisters from the congregation of Notre-Dame came to teach in the French schools and some Brothers of the Christian Schools offered instruction "to 157 youths during the day and 28 adults at night." In 1851 in the area around Clare there were 17 schools for 422 children.

This development of French education was suddenly halted in 1864 when the Tupper government passed a law establishing a system of non-denominational unilingual English schools. A certain number of religious had to leave teaching because they did not have the provincial license needed to work in Nova Scotia. Several French schools closed their doors.

. . .

At the time of Canadian Confederation, the Acadians faced numerous problems in the matter of Francophone education. Indeed, since the adoption of the Tupper Act in 1864, which established an unilingual English non-denominational school system, the Acadians generally refused to send their children to the public schools for fear of cultural and even religious assimilation.  This was a sombre period for the evolution of French culture.  This school legislation was disastrous for the Acadians, who had no other choice but to accommodate themselves as well as possible to this new public school system. 

Although the Acadians were numerically strong they did not at this time have an élite capable of leading the defence of their rights. They simply saw their identity as related to their ancestors' customs and traditions and remained convinced of the importance of the link between faith and language

. . .

For nearly 100 years, most Francophone children had to attend English schools. In rural districts few pupils finished primary school. In the cities, however, a minority of students reached the end of high school. All textbooks were in English. Provincial examinations were in English, and teachers were trained in English at the Teachers College in Truro.

. . .

The Acadians had to make many representations to government authorities to have French taught in the public schools. Only in the early 20th century did the government consent to such a concession. "Starting in 1902, instruction in Nova Scotia was to be in French until grade 4, then instruction in oral English was to begin and to increase progressively until the pupil is able to receive all his instruction in English."  The percentage of French was, in fact, minimal. There were also very few French books: few French readers and a French grammar. All other textbooks—arithmetic, history, geography, and science—were in English.

To improve the situation of French, the Acadian national congress of 1930 appointed a committee to analyze the problem of French education and to make recommendations to the government. In response to the Acadians' legitimate requests, the Department of Education authorized instruction in French for the six years of primary school and the use of English in only 7% of class time. A French history book was also introduced.

Although the government appointed an Acadian responsible for all the Acadian schools in Inverness County, "the English inspectors, however, kept their jurisdiction over the Acadian schools." It became hard to teach much French when most of the textbooks were in English. . . .

. . .

Since the industrial society was demanding more and better secondary education, in 1956 the government, following the recommendations of the Pothier Commission, passed a bill to centralize and consolidate rural districts and to provide special subsidies for the construction of regional schools. School consolidation in the Acadian regions, most often carried out according to parish boundaries, gave positive results by encouraging secondary studies.

Currently in Clare all subjects are taught in French. Halifax’s Carrefour du Grand-Havre, a school and community centre opened in January 1992, offers a French curriculum. Thus, there is progress in the regions with a concentration of Francophone families.         

This progress is the result of the efforts of those Acadians who banded together into pressure groups, joining forces to encourage the progress of French culture. As early as 1940, these patriotic organizations, such as the Société Saint-Pierre in Cape Breton Island, offered bursaries and loans to students for post-secondary studies. In 1960 different associations merged to form the Fédération acadienne de la Nouvelle-Écosse (FANE). This federation, besides organizing congresses and championing the rights of Acadians wherever the need arises, finances a French newspaper, Le Courrier de la Nouvelle-Écosse. In 1991, the FANE petitioned the provincial government to give Acadians total control of the 21 French schools serving 3,000 students. Several of these schools are now under the direction of the Anglophone school districts. In time, the Acadians hope to gain total control of French education.

This hope is undoubtedly being realized, because a release from the Association de la presse française in Ottawa, dated 1 June 1992, indicated that the Nova Scotian government had just proposed an amendment to the Schools Act which would guarantee the opportunity to be educated in French to all students whose mother tongue is French. Such an amendment would finally allow for the creation of Francophone school districts which would thereafter be responsible for the operation and management of the Acadian schools in the province.


[35]         Recommedations made several years before only became reality in 1983 when the amendments to the Education Act established Acadian schools. These amendments had the effect of:

(a)      contributing to the preservation and advancement of the French language and culture of the Acadians in their province, and

(b)     assisting the Acadians in benefitting fully from their language rights.


[36]         The Acadian schools amendment established a mechanism by which  Acadian schools could be established:  firstly, the relevant school board had to request the Minister of Education to establish an Acadian school and, secondly, the Minister of Education had to make the recommendation to Cabinet. Based on the request of the school board and the Minister's recommendation, the Governor in Council could establish an Acadian school to be administered by the existing school board, and define the area for which the Acadian school would serve that had a sufficient number of children whose first language learned, and still understood, was French, so as to warrant provision of public funds for instruction to be carried out in the French language. The language of administration and communication for an Acadian school board was to be French. Additionally, the Minister had retained the authority to regulate the proportion of the school devoted to the language of the minority in Acadian schools.


[37]           The grades and their proportions were as follows:

Grades 1 and 2:                    100%

Grades 3 to 6:                       all courses in French, except the required English course

Secondary, first cycle:           at least ten courses in French (out of a total of 18 to 20) that is, at least 3 courses per year in French, and

Secondary, second cycle:      8 courses in French, that is, at least 2 per year


[38]         In its report entitled the Official Language Minority Education Rights in Canada:  From Instruction to Management, the Office of the Commissioner of Official Languages, Ottawa, 1991, made the following comments at page 166:

After some hesitation by the Minister, the concept of designating schools as specifically Acadian was put forth. In 1986, there were 19 designation Acadian schools in five school districts. One other non designated school offered instruction to the Acadian minority. According to the Minister of Education's statistics, 3,655 pupils received instruction in French in 20 schools (grades 1-12) in the public sector. This enrolment represents the equivalent of 96.4% of French mother tongue, school age (6-17) children and the enrolment is the equivalent of 34.8% of the enrolment eligible under para. 23(a). Our school count is 10,516 children. This data points to the rate of assimilation of Nova Scotian children, and it indicates the equivalent of one child in three who had a French mother-tongue parent learn French in the home. The schools designated as Acadian schools are not all homogeneous. In 1986, enrolment in the 12 twelve designated was four homogeneous totaling 1,959 pupils, or the equivalent of 51.7% of French mother-tongue, school-age children.


[39]         In this report, a table is provided showing the progress made:

Table II-43

Public schools providing instruction to the minority, Nova Scotia, 1986












(6-17 years)**




(in %)**







(in %)**

















*   Nova Scotia Ministry of Education

** See Table II-5


Table II-44


Homogeneous public schools, Nova Scotia, 1986













(6-17 years)**




(in %)**







(in %)**

















*   Nova Scotia Ministry of Education

** See Table II-5

The progress made between 1986-87 and 1988-89 occurred mainly in the homogeneous schools (Table II-45). Between 1986-87 and 1988-89, when enrolment in all schools in the province fell 1.9% (Commissioner of Official Languages, Annual Report, 1988), enrolment in schools delivering instruction to the minority plunged 4.3% (grades 1-12). Conversely, enrolment in homogeneous schools climbed 1.6%. In 1989 not a single homogeneous school delivered instruction in grades 10-12.


[40]           Further in the report from the Commissioner of Official Languages, it is stated:

The Nova Scotia Francophone minority does have a system of Acadian schools and the schools which are not yet homogeneous are potentially so. For the present, young Acadians are quickly assimilated:  one out of three does not learn French as a mother tongue. This means that the school has a crucial role to play. The Court challenges made by Cape Breton parents are important in that they promote minority development and counteract assimilation. The outcome has been encouraging.

Historically Nova Scotia Acadians have been under pressure from the majority for English to be the main language of instruction in the province's schools. Acadian schools have been obliged to close in places where an English-language public school existed (1864). The 1982 consolidation of small school districts into 21 units again drowned Acadians in the sea of the majority. Today, although the establishment of Acadian schools is recognized in the Education Act of the province, implementation is subject to approval by the Minister of Education, and the process must be instigated through a request submitted by a majority school board.

In the area of instruction as such, we have seen that, in 1986, the school enrolment in programs delivering instruction to the minority (3,655 pupils) represented the equivalent of 34.8% of the enrolment eligible under paragraph 23(1)(a) of the Canadian Charter of Rights and Freedoms. Based on a special Statistics Canada compilation, our count of the number of school-age (6-17 years) children having one minority mother tongue parent (French only or French and English) is 10,516. The enrolment in 12 homogeneous schools (1,959 pupils) is the equivalent of 18.6% of this enrolment. There is not one public homogeneous secondary school serving pupils in grades 10-12.

Implementation of official language minority school management is slow in coming. The 1986 Education Act empowers the Minister to recommend establishment of an Acadian district to the Governor in Council. In practice the Clare-Argyle school board is Francophone. A school management model for the official language minority has yet to be proposed for Nova Scotia. When homogeneous secondary schools are established, design of a management model could be the next step forward.


[41]         As part of the 1996 amendments to the Education Act, by  Order-in-Council dated July 31, 1996, the Governor in Council designated a  number of educational facilities to be used by the Conseil to provide a French, first-language instruction program, including the  École Sainte-Anne-du-Ruisseau, École secondaire de Clare, École NDA in Chéticamp, R.C. Gordon in Greenwood, and École Petit-de-Grat, and also designated a  number of teachers, who had been employed by various regional school boards, as employees of the Conseil, to teach in the various schools transferred to the Conseil.


[42]           The Conseil  is a province-wide school board and its board membership is elected and consists of 16 members. The purpose of the election of members is to provide regional representation of Acadians and Francophones in Nova Scotia.


[43]           On September 22, 1996, the Conseil adopted a policy leading to the implement of homogeneous French programs throughout Nova Scotia. It provides:

          the primary mission of the Conseil  is to provide its students a quality French-language program. The Conseil  recognizes that assimilation plays a devastating role in Nova Scotia. To remain consistent with its mission, it is important that the Conseil  ask the administration of each school which currently has a mixed program to prepare a transition plan whose final goal will be a homogeneous French program, taking into account regional disparities.

The following principles are to be respected in each school transition plan:

1.                  The transition plan for every school may vary according to regional specifications;

2.                  The school administration, in consultation with the Francophone Comité d'écoles consultatifs, or similar committee, should submit the plan for their schools prior to 13 December, 1996. The Conseil  must approve the plans for each school before 14 February, 1997;

3.                  The transition plan for each school will be phased over a period ending in September 2000;

4.                  Each transition plan must clearly identify the goals of the school for each year and the means or methodology which would be used to achieve these goals.


[44]           The Conseil requested from the administration of each of its schools, which had a mixed program, to prepare a transition plan leading to a homogeneous French program, taking into account regional disparities. The Conseil adopted principles by which the transition plan would be put in place and acknowledged that (1) the transition plan for each school might vary according to regional specifications; (2) each school would submit plans by December 13, 1996 and the Conseil would approve them by February 14, 1997; (3) the transition plans would be phased in over the period ending in September 2000; and (4) the transition plans would set out the goals and the means of their achievement.


[45]         The E.C. Gordon School had a transition plan in effect in 1996 and the NDA School in Chéticamp and ESDC in Clare will have a homogeneous program for the intended date of September 2000. The Conseil had also intended to proceed with an early implementation of a transition plan for Argyle and Isle Madame, however, the Conseil, agreed to a delayed implementation date of their transition plan to September 2001 and September 2002 respectively. Mr. Sirois added that the dates for the implementation of  transition plans are still in effect and that there are no plans to alter them.






[46]           The Applicants filed affidavits and some of the Applicants also testified at the hearing. In addition, I considered the affidavits of Ms. Rioux and Ms. Lombard and the testimony of Ms. Rioux, who appeared on behalf of the Federation. I also considered the Affidavit of Colleen Dewolfe and the Affidavit of Alfred Marchand. Ms. Dewolfe also testified at the hearing. The Applicants also filed the expert reports and Affidavits of Dr. Maurice Beaudin and Dr. Rodrigue Landry.


Glenda Doucet-Boudreau


[47]         Glenda Doucet-Boudreau lives in Concessions, Digby County. She is the parent of three children, one of whom attends École Joseph-Dugas and her two other children are enrolled at École Secondaire de Clare (ESDC). Ms. Doucet-Boudreau claims that the ESDC is a mixed school with programs offered by the Conseil  and  by the Southwest Regional School Board (SWRSB).  She  states that the school administration of the Conseil  now answers directly to the Conseil  with a principal  and a vice-principal. She acknowledges that bulletin boards have been allocated, one to each board, and she claims that most Conseil  teachers are required to teach for both the  Conseil  program and the regional board, where the teachers move from class to class or from program to program. She claims that this has caused some delay in the instruction provided to students and affects the quality of the education offered to her children.


[48]         She stated  in Clare in 1998 that the Department provided an interim solution to mixed school concern by dividing the school into two wings, with one wing being occupied by the Conseil’s Grades 8 to 12 students and the other wing being used for the elementary students of the regional board.  However, she has  significant concerns. Facilities required by the SWRSB students are located within the section allocated to the Conseil  students, and students of both boards share school outside recreational facilities and the cafeteria. Library facilities are also shared and they are located in an area of the school under the administration of the regional board.  She maintained that it was difficult to physically separate the two groups of students and the suggestion that erection of fences to separate  them when they are on recreation period would not be of any benefit.


Yolande Levert


[49]           Yolande Levert resides in Saint-Joseph-du-Moine, Inverness County. Her two children are enrolled in the elementary level of the NDA school in Chéticamp. She claims that the school is not a homogeneous French school, as it offers a variety of programs at different levels by both the Conseil  and the regional board. She claims that the bus driver is Anglophone, is not bilingual, and cannot address the students in French, and  the children are supervised on the school grounds by individuals who have difficulty expressing themselves in French.  She added that the students of each school board have frequent contact with each other.


Alice Boudreau


[50]           Alice Boudreau is a resident of Cap Sainte-Marie, Digby County. She said that she is the parent of two children, one of whom is enrolled in ESDC. Ms. Boudreau claimed that the ESDC is a mixed school and the programs offered at the school are a French program offered by the Conseil  and a mixed program also offered by the Conseil, within which some courses are taught in French and others in English; and then a program delivered entirely in English, offered by the regional board  She said that some of the teachers move from one program to another. She also said that cultural, social, and other activities are dominated by the English-speaking students who are in the majority. She also said that there is pressure from within the school for students to follow the English program. She acknowledged that the Conseil  has a separate principal and vice-principal and the regional board has its own principal and vice-principal. She agreed that each board has separate bulletin boards. She added that, in some instances, Conseil  students are required to translate notices from French to English and post the translated version on the English bulletin board. She claims as well that there is one school advisory council and that this council deals with both French and mixed programs.


[51]           Ms. Boudreau identified a number of activities in which she had  participated  over the last 15 years or so seeking compliance with  s. 23 of the Charter. She maintained that the lack of progress in implementing homogeneous French programs and homogeneous facilities is, in large part,  due to the lack of leadership of the Department of Education. She said  that rather than attempt to find a consensus among Acadians in her region, the province should have taken a firm position in order to comply with the provisions of the Charter. She claimed the Province of New Brunswick made substantial progress in having the Department of Education provide French homogeneous programs and facilities because of strong leadership by the Department. She was extremely critical of the process adopted by the Nova Scotia Department of Education to hold public meetings which involved s. 23 entitled parents, parents of the regional board students, individuals who did not have any children registered in either program, and the students themselves. This involvement led  to a great deal of friction among s. 23 parents, and also between s. 23 parents and parents of students on the regional board. She acknowledged that if the Conseil had moved quickly with early implementation of homogeneous programs, a decision could have meant a loss of  students from the Conseil  to the regional board. A number of students may have chosen to register with the SWRSB.


Jocelyn Bourbeau


[52]         Ms. Bourbeau lives in Kingston. She has two children enrolled at the elementary level at École R.C. Gordon. In this school, homogeneous French programs are offered by the Conseil  for grades primary to 12 and also a program offered by the Annapolis Valley Regional School Board for primary to grade 2 students. She said  that the  students take their recesses together. She is aware that the Conseil  has a school advisory council at École R.C. Gordon and she was unaware if there is a similar school advisory council for the Annapolis Valley Regional School Board (AVRSB).  She said the regional board students eat lunch in their classrooms.  Students enrolled in both programs  take their scheduled recess together.


Bernadette Cormier-Marchand


[53]           Bernadette Cormier-Marchand  resides in Pondville, Richmond County and has a number of children attending École Petit-de-Grat, as well as one child attending ESIM in Arichat. She is a  substitute teacher and  she is employed by  the Conseil  and the Strait Regional School Board (SRSB).


[54]           Ms. Cormier-Marchand said that ESIM is a mixed school as courses in Grades 10 to 12 are offered by the Conseil and others are offered by the SWRSB. Some teachers teach in both programs. Ms. Cormier-Marchand also said that the parent advisory committee at ESIM is composed of two Francophone parents, two Conseil  students, and a Conseil  teacher, as well as Anglophone representatives, representing students, teachers, and the English board; and all of the meetings are conducted in English.


[55]           Ms. Cormier-Marchand said the administration at ESIM answers to two different boards and prepares two separate report cards, one for the pupils of Conseil  and a second for the regional board. She claims that cultural, social, and athletic activities are conducted mostly in English and any social, cultural, or athletic activities which are carried on in French occur at La Picasse Community Centre, located approximately five miles from the school.


[56]           Ms. Cormier-Marchand claims that the influence of English on her eldest child attending ESIM  is significant and she is showing a preference to speak English in the home  since her attendance at ESIM.  She said she has not noticed a similar problem with her three younger children who attend École Petit-de-Grat, which is a homogeneous school for students from primary to grade 9.


Cyrille LeBlanc


[57]           Cyrille LeBlanc resides at Wedgeport, Yarmouth County. His children attend SAR school in Argyle.  He claims that both of his children were enrolled in a mixed program offered by the Conseil. Mr. LeBlanc said at  SAR one finds a French program offered by the Conseil, a mixed program where certain courses are taught in French and others in English, also offered by the Conseil, and an entirely English program offered by the Regional Board. The  two school administrations  answer to two distinct school boards and  a single timetable encompasses all programs and teachers who are employed both by the Conseil  and the regional board. Mr. LeBlanc claims that a homogeneous French school with homogeneous French programs would be preferable. His two children, however, enrolled  in the mixed program because they wanted to take a number of courses with their friends, most of whom were enrolled in the mixed program. Given the foundation that his children received, Mr. LeBlanc said they did not feel competent to continue their studies in French at the secondary level. He also said that the lack of homogeneous French programs in homogeneous French schools influenced his daughter's choice in attending an English community college course. She has elected to enter the English program because she did not feel competent to follow one in a Francophone community college. He claims as well that, given the nature of the mixed program, cultural, sports and other non-academic  activities take place mostly in English.


[58]           Mr. LeBlanc also said although, initially, the transition plan of the Conseil  was to  have the Argyle High School completed in September  2000, this was extended and  despite protests to the Conseil, these complaints have gone unanswered.


Marie-Claude Rioux


[59]         Marie-Claude Rioux is the Executive Director of the Federation.  She said that the Clare, Argyle, Isle Madame, Chéticamp and Greenwood regions are the only regions in Canada where mixed schools are administered entirely or partly by a Francophone minority school board. Ms. Rioux also maintained that over the years there has been a reduction of the number of individuals (Acadians and Francophones) who speak French and the rate of assimilation is increasing.


[60]            According to Ms. Rioux, there were  4,151 s. 23 children enrolled in the entire Conseil  system in the academic year 1996-97, 4,183 in the 1997-98 ,  4,254  in 1998-99,  and 4,173 are registered in 1999-2000.


[61]           Ms. Rioux claimed that the decision of the Department not to proceed with the construction of schools, included in the 1999 government announcement, in Clare, Argyle and  Petit-de-Grat  prevents the establishment of the homogeneous school facilities in these regions.


[62]         Ms. Rioux also stated that in February 1998, Premier Russell MacLellan  at a public meeting announced the construction of a new homogeneous French school for grades 8 to 12 for Clare.


[63]           Ms. Rioux, in cross-examination,  acknowledged  the Department is committed to the construction of the schools but notes that in the Speech from the Throne, and in various press releases following the Speech from the Throne, no mention was made of the priority, if any, that should be accorded to s. 23 parents.


[64]            Ms. Rioux added, in respect of the relevant enrollment numbers at SAR, ESDC, and ESIM, that she has noticed a reduction in the number of  students over the previous academic year while the registration in the regional school boards in the comparable grades has increased.


[65]         She stated that the greatest assimilation has occurred in Petit-de-Grat and Isle Madame High Schools where there has been a drop-off from 124 in 1997-98 to 89 in 1999-2000. Ms. Rioux claims that assimilation has increased  since the 1997 announcement to provide homogeneous facilities. Ms. Rioux said that the trend of a reduction in enrollment in the Clare, Argyle and Isle Madame  should be compared with the enrollment at École Carrefour du Grand-Havre in Dartmouth, where registration has increased. Ms. Rioux said that her child attends this school, and when it was initially established, registration was much lower. She added that over the years, École Carrefour du Grand-Havre has become a homogeneous French cultural centre and it also has contributed to an increase in enrollment, both at the elementary and secondary level, and  has succeeded in its objective. In fact, Ms. Rioux claimed the capacity of this facility has been exceeded and the Department was required to build additional facilities to accommodate the demand.


[66]           Ms. Rioux claimed that similar homogeneous French facilities in the five regions of Nova Scotia would have a very profound and beneficial effect of reversing both the rate at which assimilation is taking place and the process of  assimilation itself. She added that there are strong pedagogical reasons for the construction of these schools in the various regions and she disagrees that the transition plans for French homogeneous programs and facilities  presently in effect satisfies sound pedagogical standards.


[67]           She said there is no basis for the Department to now suggest that cost is a factor in not proceeding with the construction of these facilities.  She also notes that a number of homogeneous schools at the elementary level have fewer students than the number of students projected for the five regions.


Yvonne Lombard


[68]         Ms. Yvonne Lombard is the President of the Federation. She resides in Vent-de-la-Rivière, Digby County, Nova Scotia. She is the parent of a child who is registered at the École Secondaire de Clare (ESDC).


[69]           She stated that the Federation is composed of approximately sixteen committees of parents or home and school groupings referred as “Parents Committees". In fact, each of these committees includes parents whose children are registered in one or more of the schools in the respective communities.


[70]           Ms. Lombard stated that the Federation was established in 1984 and is a non-profit society. It represents committees, as well as parents who are entitled to French-language education under s. 23 of the Charter and the principal  mandate of the Federation is to promote scholastic development and advancement of education rights for minority Acadians and Francophones in this province and to speak on behalf of all parents who share a common goal to realize the establishment of homogeneous French schools in which homogeneous French programs at the elementary and secondary levels are offered.


[71]           Ms. Lombard said that École Carrefour du Grand-Havre is a, grades primary to 12, homogeneous French facility offering  homogeneous French programs. École Cornwallis in Sydney, a second homogeneous facility, offers French homogeneous programs for grades 1 to 9.


[72]         She said that prior to 1984, attempts were made by various  groups of parents to bring about improved French-language instruction in Nova Scotia although this has not met with a great deal of success. Ms. Lombard also said that without improved French education for the elementary and secondary programs, it is difficult to prevent assimilation.


[73]           Ms. Lombard provided a summary of the numerous efforts undertaken by various committees, groups, and parents to secure homogeneous French programs and facilities in Nova Scotia and, in particular, to pressure  the Department to comply with the requirements of s. 23 of the Charter. She pointed to correspondence from the Commissioner of Official Languages of Canada indicating that in 1995, the Department of Education was not complying with s. 23 of the Charter. She stated the Conseil  initially established a transition plan whereby all of the elementary and secondary grades at the elementary and high school levels would be offered on a homogeneous basis by September 2000, however, the effective date for the implementation was delayed in Argyle and Isle Madame to September 2001 and September 2002 respectively.


[74]           Ms. Lombard maintains that the Federation, the Applicants, and all parents who are right holders under s. 23, have a right to have their children educated in the language of the minority, namely, the French language, in publicly funded French schools.


Colleen DeWolfe


[75]           Colleen DeWolfe resides in Petit-de-Grat, Richmond County. Ms. Dewolfe said her daughter has attended a homogeneous program at École Petit-de-Grat since Primary. In 1999, her daughter registered in Grade 9 and continues to attend the Conseil school in Petit-de-Grat.


[76]           She said that until 1999, the Conseil had offered grades primary to 8 at École Petit-de-Grat. In September 1999, Grade 9 was added.  Although 32 students had completed grade 8, only 8 students registered in Grade 9.


[77]           Although she did not have a full understanding why some of the children elected to register in Grade 9 with the Regional Board and relocate in ESIM, she  said she spoke to seven or eight of the children who transferred to the English program and they told her that they had moved to the regional board due to a lack of facilities, such as laboratory and extra-curricular activities.  Ms. DeWolfe claims that her daughter is unable to participate in extra-curricular activities with her peers, particularly lunch-time recreational gym activities that take place during school hours. There is a gym facility in Petit-de-Grat but grade 9 students and elementary students are together.


[78]            She agreed that some of the grade 9 students who switched to ESIM from École Petit-de-Grat did so because they wanted to enroll in the programs offered by the regional board.


[79]           Ms. Dewolfe added that if the Conseil delays in the implementation of the French homogeneous program to Grade 12, then any repeat of a substantial reduction in the enrollment which occurred in 1999 will simply undermine the validity of the entire program.


Alfred Marchand


[80]           Alfred Marchand is a high school teacher at Isle Madame High School, where he teaches in English. Formerly, he taught French at Isle Madame High School. He is married to the Applicant, Bernadette Cormier-Marchand.


[81]           He stated that when he was a student in 1969 at the ESIM, approximately 90% of the students in the high school spoke or understood French, while today only approximately one-third of  the students speak or understand French. He noticed this in his classroom and in the common areas, and he rarely hears any of these French-speaking students actually speak French.  Although he could not establish definitive figures, he estimated about two-thirds of the students of s. 23 parents in the school are registered with the Strait Regional School Board. He said the natural and overwhelming tendencies by force of numbers is for the French-speaking students to conform by speaking English. He said he observed this reality in his daughter, and this became increasingly so after she moved from the homogeneous French school to the high school in grade 9. Mr. Marchand adds that the assimilation is real and observable.


Dr. Maurice Beaudin and Dr. Rodrique Landry


[82]           Dr. Maurice Beaudin is an assistant director of the Regional Development Institute at the Université de Moncton and holds a Ph.D. from Université de Nantes. His field of study has been focused, over the last twelve years, on the adaptation of regional economies, the analysis of industrial cases, and the economic adaptation of minority groups. He was qualified to give expert evidence in his field and the Respondents agreed to his qualifications. In addition, the Respondents declined to cross-examine Dr. Beaudin.


[83]           In the last number of years, Dr. Beaudin undertook  research work on the economic state of Francophone minorities in Canada. In the process of conducting this review, he consulted Canada census results of 1986 to 1996, and after compiling his review of all other relevant data, Dr. Beaudin concluded that the total number of Acadians and Francophones in Nova Scotia is falling and that the rate of assimilation in all regions of Nova Scotia varies between 13.5% and 59.3%, depending upon the region. In fact,  the rate of assimilation increased between 1991 and 1996 in Nova Scotia, with the exception of the Halifax-Dartmouth region. Dr. Beaudin added that the French language for the linguistic minority in Nova Scotia is in a precarious state and that remains to be a fact today, both in Nova Scotia, as well as elsewhere in Canada.


[84]           Dr. Beaudin also stated that he was satisfied that the establishment of homogeneous schools in various Acadian and Francophone regions in Nova Scotia would assist in curbing the assimilation of the Acadian and Francophone minorities given  the precarious nature of the French language.


[85]           In his report, Dr. Beaudin states the following:

The results of the 1996 census threw cold water on the diverse parties working within Francophone minorities outside Quebec. And with good reason, these minorities are confirming a disturbing erosion of the minority Francophone group that is seeing its speakers whose mother tongue is French (or native French speaker - NFS) diminish by 10,000 (-1.1%) compared to 1991. Still more disturbing is the reduction of French language speakers (FLS), who are now fewer by more than 19,000 (-2.9%). Although most of those in the linguistics field were not expecting an increase in the number of minority Francophones, they were hoping for at least a certain levelling off. In this context, the 1996 figures could fuel quite a debate and serve as ammunition to the partisans of a sovereign Quebec who claim that there is no saving the Francophone minorities outside of Quebec. Politics aside, we are right to be concerned since these statistics reveal several things. Firstly, they confirm an established tendency as to linguistic transfers: assimilation, for Francophones outside Quebec, remains the number one enemy, an enemy that seems, for the moment, invincible. Secondly, we must look beyond the linguistic transfers in these tendencies; in other words, this data does not show simply and solely linguistic transfers (assimilation), but it reveals other factors which, in their fashion, contribute to a progressive eating away at the Francophone ranks. We refer to the difficult economic adaptation of rural areas and, consequently, to the emigration towards urbanized areas which offer better opportunities for job advancement. However, the city does not attract more minority Francophones than the other minorities, or even members of the majority. As has already been shown,. emigration constitutes a problem tied to the regional and local economic structure and not to linguistic status. . . . From one census to another, Francophone minorities in Canada are faced with a double reality:  assimilation within their own ranks (where linguistic transfers are very often brought on by mixed unions) and the loss of members (many of whom assimilate) through migration towards centres where there is a high percentage of Anglophones). These facts are not new, except that the data from the last census confirms these tendencies more than ever. In a study done in 1994 for the Conseil d'adaptation des ressources humaines de la francophonie canadienne (CARHFC), we observed a rate of assimilation of 30% for all Francophones outside of Quebec, and this, taking into account multiple responses (those speaking French and English in the home). When analyzed for 22 regions of Francophone groups (see attached list), the data showed marked regional differences. The mitigated fears raised by the 1991 census were obviously reinforced by the results of the last census. The results are categorical:  Francophones outside of Quebec have lost ground not only in terms of their numbers, but also with regard to the assiduity with which they speak French. Indeed, there were found to be 10,300 fewer Francophones (SLM) in 1996 as well as 19,000 fewer French speakers compared to 1991. Consequently, the rate of assimilation has increase slightly from 30.1% to 31.3%.


At page 6 of his report, Dr. Beaudin states:

The Francophones' linguistic vitality is primordial for their development. Cultural emancipation, social stability as well as economic conquest cannot progress unless a region's Francophones affirm themselves as such and are proud of their identity. Whichever definition we use, the precariousness of the French language remains a fact. And the data from the 1996 census is not in the least reassuring. Even if we adopted a wider definition of assimilation, (by including those speaking English and French in the home), assimilation would gather even more strength in several regions, notably in the rest of Alberta (+6 percentage points compared to 1991), the rest of Nova Scotia (+5.8 points), Saskatchewan (+5 points), Winnipeg/St. Boniface, as well as in northeastern and souther Ontario (+3 points).


[86]         Dr. Rodrigue Landry also filed an expert report. Mr. Landry is the Dean of the Faculty of Education at Université de Moncton. He holds a Ph.D. in Educational Psychology from the University of Wisconsin and  has had an extended career of teaching at the secondary level and in university. Mr. Landry's doctoral thesis dealt with the effects of bilingualism on learning and memory. Clearly, Mr. Landry is an expert in the field of educational psychology and was qualified as such. The respondents also declined to cross-examine Dr. Landry on his qualifications or his report.


[87]           Dr. Landry stated that he collaborated in a study dealing with the linguistic vitality of minorities in the national and international context, including the processes of learning a second language and  the effect such an activity has on another language. Dr. Landry and his colleague, Réal Allard, completed a study in 1998 on the language of instruction and bilingual development of Acadians and Francophones in Nova Scotia.


[88]           Dr. Landry observed that the fears, felt by some Acadian and Francophone parents, of the possible negative effect of learning English if the  education was too strongly rooted in French, were unfounded. Dr. Landry maintains that the study revealed that the greater the emphasis on French instruction is emphasized, the higher the level of bilingualism that can be  achieved. He said the study demonstrated that Acadians and Francophones who follow an intensive French-language program in the French language have increased psycho-linguistic development. Accordingly, he  concluded that English-language ability is not compromised by a strong French-language education. He determined that students enrolled in an intensive or strong French-language program will achieve equally as those students who are enrolled in exclusive English programs.


[89]           Dr. Landry also commented on the state of Acadian and Francophone students in Nova Scotia. He stated that identity and usage of the French language is strongly related to frequent contact with other Francophones, particularly among family and relatives and the Francophone media and  that French-language schooling, in a French-speaking environment constitutes the strongest factor related to Francophone identity.


[90]           He concluded that it was his opinion that homogeneous French-language schools are one of the best tools available to Acadians and Francophones in Nova Scotia to prevent assimilation. In addition, these schools would assist in promoting the development and growth of the French-language communities.


[91]           Dr. Landry said the Landry/Allard study concentrated on the basis and motivations of parents who adopt a position against homogeneous French schools from primary to grade 12. The reasons offered, according to the study, by the parents who stand in opposition to homogeneous schools, is that such intense study in the French language could slow down the bilingual development of their children, limit their access to post-secondary studies in the province's Anglophone universities and, finally, diminish their chances for social mobility. According to Dr. Landry, Acadians and Francophones expressed the same concerns in an earlier study.


[92]           Dr. Landry and Mr. Allard's report refers to the concerns some of the Acadian and Francophone parents had with respect to a concentration of French and the impact this would have on the ability to function in the English environment, and comments as follows:

As we mentioned in the introduction to this study, one of the concerns of many parents of Francophone origin in Nova Scotia is that schooling that is too highly concentrated in French could have a negative effect on competency in English. The ultimate consequence of this would therefore be a limitation on social mobility. The results presented above (variance analysis) show a strong relation between the degree of schooling in French and oral and cognito-academic competency in French. Neither oral competence, nor cognito-academic competence in English is related in any significant degree to the degree of schooling in French. In this section, we will use the orthogonal factors identified by the factor analysis to identify the factors which could explain the differences between students' scores in English competency. As well, we will make a corelational analysis between the English competency scores and French competency scores to verify the hypothesis of interdependence between the two languages. According to this hypotheses, (Cummins, 1979, 1981, 1984), strong competency in the first language contributes positively to competency in the second language, particularly in the area of cognito-academic competency.


[93]           The Landry-Allard study concluded:

This study has clearly shown that the fears of many parents of Francophone origin in Nova Scotia regarding the potentially harmful effects of an education too highly concentrated in French are groundless. On the contrary, two types of statistical analysis (variance analysis and multiple regression) have allowed us to conclude that the more an education is strong French, the better the level of bilingualism achieved and, additionally, that bilingualism is of an additive nature. Francophone psycholinguistic development is favored by a strong education in French and development in English language competency is in no way diminished by an education in French. Additionally, as predicted by the hypothesis of linguistic interdependence, (Cummins, 1979, 1981, 1984) and by the Compensating scales model (Landry and Allard, 1990), the higher the linguistic competency in French, the higher the scores in English linguistic competency. This inter-language relationship, as set out by the Cummins hypothesis, is  stronger for cognito-academic competence than for oral-communicative competence. Cummins (1981) postulated that the inter-language transfer would be higher from the minority language towards the majority language, and vice versa due to strong school pressures to learn the latter.


The analysis conducted during this study also show that schooling in French is not the only variable related to psycholinguistic development. For example, contact with various Francophone media contributes strongly to the explained variance in scores for oral competence and cognito-academic competence in French. Contacts with Francophone media are most strongly associated with the desire of the student to integrate into the Francophone community. There are also strong links between the strength of the Francophone social network and certain aspects of psycholinguistic development. For example, it is the degree of schooling in French that is most strongly associate with Francophone identity, but the second most prominent factor is the proportion of Francophones among family and relatives, which leads us to presume that, in exogamous families, the Francophone identity is weakened when the child is not educated in French. (See Landry and Allard, 1997). Exogamy and other dimensions of the Francophone social experience (frequency of contact with Francophones and the strength of the Francophone social network) are strongly related to the use of French in the family, with friends in the social network (neighbors and other social contacts), with other students at school and in social institutions. The social experience of students is only weakly related to the usage of Francophone media, since by far the most important factor for this variable is the frequency of contact with Francophone media since childhood. Finally, we observe a negative relation between the strength of the Francophone social experience and the cognito-academic competence in English. This relation demonstrates that learning English is facilitated by an Anglo-dominated social environment. However, the links with cognito-academic competence in English which are by far the strongest come from the level of Cognito-academic competence in French, from the intellectual aptitude of the students and from the socioeconomic status of the parents.

If the concerns of parents who fear the negative effect of schooling in French are not justified, what are the motivations of those who continue to demand a significant part of schooling in English?  It is very likely the effect of a certain social naïveté that we were able to observe during other studies (Landry and Allard, 1994; Landry 1995); that is, that certain parents do not seem to be aware of the social determinism which contributes to bilingualism of a subtractive nature among members of the Francophone minority community. It is highly possible as well that these parents are already partially assimilated into the Anglo-dominant language and culture and that assimilation is for them an attempt to positively affirm their identity, even if this strategy has the effect of placing their community even more in the minority (Tajfel, 1974; Giles et al., 1977; Cazabon, 1997). Whatever the motivation of these parents, the message of this study is clear. If the desired objective is an additive bilingualism as opposed to a subtractive bilingualism, which leads to assimilation, the Nova Scotia Acadian and Francophone community must take maximum advantage of its potential access to education in French and must develop within the school a pedagogy of awareness, capable of cultivating among students a desire to affirm their culture and a capacity to contribute to the fulfilment of the Acadian and Francophone community Nova Scotia.




[94]           The Respondent, the Conseil, filed the affidavit of Mr. Réjean Sirois. Mr. Sirois also testified at the hearing. The Respondent, Department of Education, called two witnesses, Mr. Charles Clattenburg and Mr. Rodrigue Landry.



Réjean Sirois


[95]           Mr. Réjean Sirois is the superintendent of the Conseil. He stated the Conseil's head office is in Meteghan, Digby County, and there are two regional offices, Dartmouth and Petit-de-Grat.


[96]           He said the objective of the Conseil  is to provide a French first-language program to the children of entitled parents under s. 23 of the Charter.


[97]           The budget for the Conseil  in 1998-99 was $25,473,495.00, as compared to $23,712,874.00 in 1997-98, and $22,292,148.00 in 1996-97.


[98]           The Conseil  has almost 600 employees comprising 330 teachers (including teachers employed in administrative positions), 200 non-teaching employees (who are employed as secretaries, librarians, teachers' aides, cooks, janitors, monitors, and bus drivers, and a number of substitutes and spares).


[99]           Mr. Sirois said that at the outset of the Conseil's  operation, if the school did not have homogeneous French programs, a transition plan was established. Reference has already been made to the transition plan coming into force by September 2000. Mr. Sirois stated that the development of the transition plan included consultation with parents and consideration of other factors, such as the number of students, and budgets.




[100]      Mr. Sirois said on January 24, 1999, the Conseil  adopted a detailed transition plan for SAR in response to community input. The transition plan provides for homogeneous programs in grades 9, 10, 11 and 12 to the 2001-2002 school year. Mr. Sirois claims that this plan is still on target.


[101]      The number of courses offered in French are outlined in Mr. Sirois' affidavit and these numbers are affected by student registration, staff allocation and availability of teachers.


[102]      Mr. Sirois claims that SAR has a full-time principal and vice-principal, both employed by the Conseil. In the academic period of 1996 through 1999, the regional board had the following students:  1996-97: 192; 1997-98: 211; and 1998-99: 197 students. Mr. Sirois stated that in the academic year 1999-2000, the Conseil  employs 19 teachers at SAR and 6 of those teachers teach one or more courses for the regional board. In previous years, a higher number  of these teachers taught in the regional board.


[103]      Mr. Sirois claims that the SAR has two advisory councils, one for the Conseil  board and one for the regional board. He claims that the Conseil  school advisory council operates entirely in French and prepares all of its minutes in French.


[104]      Mr. Sirois indicated that in some instances where there were an insufficient number of students to establish a given program, students had to take the program offered by the regional board.


[105]      Mr. Sirois stated that in May 1999, the Department announced that a new school would be built for the Conseil  students currently attending SAR and that the school would be opened for students not later than September 2001 and only Conseil  students would attend this school. As a result of the 1999 announcement, this school is on hold.




[106]      Mr. Sirois said this school will have a homogeneous program in September 2000. 


[107]      He confirmed that the Conseil has a full-time principal and  a full-time vice-principal.


[108]      Mr. Sirois said that the Conseil  and regional board students occupy the same facility but in separate wings.


[109]      The regional board had the following students registered at ESDC:  202 in the academic year 1996-97; 166 students in 1997-98; and 137 students in 1998-99.


[110]      Mr. Sirois stated that in 1999-2000, the Conseil  employed 24 teachers at the Clare High School and these teachers only teach in the Conseil  program, and teachers employed by the regional board do not teach in the Conseil  program, which he claimed was an improvement over the last number of years.


[111]      This school has two separate advisory councils and the Conseil  school advisory council operates entirely in French.


[112]       In 1998, the Conseil, the regional board and the Department took interim measures  to make this facility a homogeneous one.  The school was divided into two wings, with one wing for Conseil students and the other wing for the regional board students.  Some of the facilities are shared by students  of each board and I have already referred to the extent when reviewing Ms, Doucet-Boudreau’s evidence.


[113]      Mr. Sirois said that the Department announced in 1999 that a new school would be built for  regional board students in the Clare region which would permit Conseil  students to have exclusive use of the ESDC, effective September 2001, and this project was also part of the on-hold announcement.




[114]      Mr. Sirois said that the NDA School in Chéticamp is a Conseil  school and serves a large portion of Northern Inverness County.


[115]      Mr. Sirois said the Conseil  has adopted a transition plan providing for NDA to have a homogeneous program by September 2000 and expects to have a homogeneous facility in September 2000.


[116]      He said the Conseil has a full-time principal and vice-principal. In addition to Conseil  students, NDA also has regional school board students. The regional board had the following students:  1996-97: 153; 1997-98: 165 and 1998-99: 152 students.


[117]      Mr. Sirois stated the Conseil  has 31 teachers at NDA and 13 of these teachers teach one or more courses in English to students of the regional board and this is fewer than in 1988-89. 


[118]      Mr. Sirois said that the Conseil  does not employ bus drivers to transport its students; instead, it has made arrangements with the regional board to transport Conseil  students. However, the  Conseil  board is exploring funding arrangements that would have permitted it to transport Conseil  students.




[119]      Mr. Sirois said École R.C. Gordon  is located in Greenwood, Kings County. It offers a fully homogeneous school program for grades primary to 12.


[120]      The principal at R. C. Gordon reports directly to the Conseil.


[121]      The Conseil  and the regional board both have students at this school with the regional board having its grades primary to Grade 2 students.


[122]      Teachers employed by the Conseil  do not teach regional board students. Conseil students and regional board students make use of the same playground and regional board students, and eat their lunches in their classrooms.


[123]      The Department of Education  announced in December 1997 that a new school would be built for the regional board thereby allowing the R.C. Gordon school to become a fully homogeneous school.




[124]      This school is located on Isle Madame, Richmond County and is administered by the Strait Regional School Board.


[125]      On March 16, 1997, the Conseil adopted a transition plan to provide homogeneous programs for grades 9 to 12, in September 2002, which is still on schedule.


[126]      As this school does not provide homogeneous French programs, Mr. Sirois outlined the number of courses offered in French for the period 1996 through 1999.


[127]      The principal reports to the Conseil. This is an improvement, according to Mr. Sirois, from the previous year, where the Conseil  only had a vice-principal at ESIM.


[128]      The regional board had 268 students attending grades 9 to 12 at ESIM in 1998-99. A number of teachers who teach in the Conseil  program also teach for the regional board. Mr. Sirois stated that in 1999-2000 there were 23 teachers at this school, four of whom are employed by the Conseil  and teach only Conseil  students. Of the nine teachers employed by the regional board, two of those teachers teach chemistry, career and active living in French to Conseil  students and the other 17 teachers teach Conseil  students in English.


[129]      Mr. Sirois said the Department of Education announced the construction of a new school to be built at Petit-de-Grat, which would allow for a homogeneous school from grades primary to 12 with an opening date of  September 2001. However, the date of the opening has been advanced to January, 2001, at the request of the Conseil


[130]       Mr. Sirois indicates that report cards are issued in French by Conseil  teachers to its students.


[131]      While being cross-examined, Mr. Sirois said there had been efforts to accelerate the transition plan but this had met with some opposition in the various communities.


[132]      Mr. Sirois claimed that the objective of the Conseil is to establish homogeneous French schools throughout Nova Scotia to comply with the provisions of the Charter in order to  minimize the effect of assimilation. Mr. Sirois acknowledged that assimilation plays a devastating role and that having homogeneous French schools and programs will assist in this effort. Mr. Sirois did not have any difficulty with homogeneous programs or schools becoming a reality at the outset, however, other factors previously mentioned caused a delay of the implementation of the transition plan in Argyle and Isle-Madame. The Conseil  thought a period of four years would be sufficient to implement a transition plan in the five regions concerned by the application. In cross-examination,  Mr. Sirois confirmed that there were no pedagogical reasons not to proceed with the   implementation of the transition plan by September 2000 and addressed the reason for the  delay in the implementation date in the transition plan.

Q. Okay. And with respect to pedagogical reasons and cost factors, there are no pedagogical problems that you're aware of in having these homogeneous programs in those three schools September 2000, are there?

A. Again, what the Board wanted, like it was to have the homogeneous school and homogeneous program as quick as possible, okay?  But we also were aware that we have to work with the community and work with parents, and that was the reason sometimes that the transition in some areas is longer than the other, and sometimes we have to take into consideration that there is other factors than only just the parents. They were like the -- we have other -- well, we're sharing the school with another School Board.


[133]      Mr. Sirois also said it is necessary to consider a number of factors, including the entire provincial scene, the source of Conseil  funds, the total number of students  and the decreasing enrolment. Mr. Sirois added that, over time, if the Conseil  did not have the same funding,  the quality of  programs  could be adversely affected.


[134]       Mr. Sirois confirmed that the transition plan for SAR  took into account these  various factors,  although for pedagogical reasons, there was no reason why this school could not offer homogeneous programs by September 2000. There is a sufficient number of students to establish homogeneous programs at the present time, with the number of students increasing over time,  similar to what occurred at  École Carrefour du Grand-Havre where, according to Mr. Sirois and the evidence of Ms. Rioux, there has been exponential growth in the number of students.


[135]      Mr. Sirois indicated there had been an increase in the number of students in the elementary level because parents realized that the education the children would receive from the Conseil  was particularly beneficial.


[136]      Mr. Sirois indicated that  the drop-off of students in 1999-2000 in Petit-de-Grat was startling and that it was important to address this particular issue immediately. Mr. Sirois indicated that he met with a number of parents in Petit-de-Grat in 1999 to determine the number of students from grade 8 who would be attending the grade 9 Conseil  program at the Petit-de-Grat school. Of the 32 students who had successfully completed grade 8, the parents of 25 students indicated they intended for their children to attend Petit-de-Grat grade 9 classes. At a further meeting, seven more parents decided to have their children attend ESIM in 1999. As a result, only 8 students registered. Mr. Sirois held a meeting with the parents and it was determined that some of the parents were concerned about the lack of high school facilities, such as labs for science and chemistry projects while others indicated their children wanted to associate with older students.


[137]      Mr. Sirois said he was uncertain of what will  happen in the upcoming academic year, namely, whether the Conseil would offer a grade 10 Conseil  class in a portable classroom, or whether only grade 9 classes would be offered in portables.


[138]      Mr. Sirois said he could not say whether the ESIM would be made available to the Conseil, as temporary facilities where fully homogeneous programs for grades 9 to 12 students could be offered in September 2000, as the regional board might have plans of its own.


[139]     As to Petit-de-Grat,  Mr. Sirois acknowledged that he was concerned that any significant delay in providing the homogeneous French school in Petit-de-Grat would have a devastating effect on maintaining students in the homogeneous French program through high school.


[140]      Mr. Sirois indicated that thought had been given to utilizing Collège Sainte-Anne as temporary quarters to establish a French homogeneous school for the Clare area, for secondary schools, but upon consultation, it was decided to proceed and establish a homogeneous French school, on a temporary basis, in shared facilities, with the regional board at the Clare High School. Mr. Sirois acknowledged that the students at  ESDC share gymnasium and library facilities, cafeteria, and playground with the students of the regional board. Mr. Sirois did not accept that it was simply by building a fence in the playground that a school becomes homogeneous.


[141]      Mr. Sirois agreed that, only after  his appointment as Superintendent for the Conseil, did he realize the resistance among entitled parents to homogeneous French programs and homogeneous French schools and the level of concern varied from region to region. He agreed that some parents were anxious to move forward while others were opposed to homogeneous programs and while others were now in favour of after a period of sensitization.  


[142]      Mr. Sirois admitted that it would have been easier to establish homogeneous French schools if there had been no need to be concerned with the  students and the other regional boards.


[143]      Mr. Sirois indicated that it was important to build the Petit-de-Grat school sooner rather than later as entitled parents had to be satisfied that the facilities would be adequate for their children and, therefore, it was important to have the facility prior to  the date of implementation of the transition plan. Mr. Sirois maintained that even the mixed school at École R.C. Gordon would have a negative impact on the homogeneous nature of that school.


[144]      Mr. Sirois agreed with the Applicants that the sooner homogeneous French schools are available in all regions, the better off these students will be because of strong pedagogical reasons. He agreed that there had been some tension which had developed in the Clare-Argyle region between parents of Acadians and Francophones, and other parents, and that if homogeneous French schools had been available, these tensions would not have developed.


[145]      Mr. Sirois confirmed that the time frame for the building of these schools should be maintained as announced by the Government and that homogeneous French schools would lead to a reduction in the rate of assimilation.


[146]      Mr. Sirois also said that in 1997 a committee, known as the Tripartite Committee, made up of the Conseil, the SWRSB, and the Department of Education, was formed to establish a policy for the establishment of homogeneous programs and facilities in Clare and Argyle.  This effort involved a great deal of consultation with the community, students, teachers, municipal officials, MLAs and  government officials. Over a period of time, it was concluded that it was necessary, in order to comply with the requirements of the Charter, for the Department to build two schools in Argyle and Clare so that the Conseil would have homogeneous French schools by September 2000. However, the establishment of homogeneous French schools in Clare and Argyle was not contingent on the construction of new schools for the regional board, as the Conseil  did not require additional facilities in Clare and Argyle, in order to provide homogeneous French schools. It was up to the regional board and the Department of Education to provide for the regional board students.


Charles Clattenburg


[147]      Mr. Clattenburg is employed by the Department and said he has been responsible for school construction  in Nova Scotia throughout his career.


[148]      Mr. Clattenburg acknowledged that he had been involved in the preparation of the program leading to the May 18, 1999 offer by the Department to build 16 additional schools.


[149]     Mr. Clattenburg confirmed that throughout the period 1982 to 1997 the  Department did not consider the specific requirements of s. 23 of the Charter when it considered and approved requests  for new school construction.


[150]     Mr. Clattenburg said that prior to 1992,  school boards  regularly made requests to the Department for new school construction and the Minister of Education would recommend certain specific schools based on departmental recommendations.  As the new  schools were  built, the Department turned them  over to the appropriate school board.


[151]     In 1992, the Department  established a new School Capital Construction Committee which was responsible for prioritizing various new school construction projects. The committee established criteria which had to be met before projects were  placed on the priority list. The criteria did not include any s. 23 requirements.


[152]      Mr. Clattenburg said the committee, in its first report,  recommended the establishment of a capital fund of thirty million dollars annually for construction of  new schools, however, the Department reduced this amount to twenty million. Mr. Clattenburg said the schools that were placed on a priority list were not built on the committee’s timetable and, in fact, some of the schools were delayed by more than four years.


[153]      Mr. Clattenburg said that in 1995 the Province of Nova Scotia established a new funding vehicle for the construction of new schools, namely, the private-public partnership process (P3 process) and as a result, a number of schools have been built utilizing this funding process.


[154]      Mr. Clattenburg noted that in 1999, the current  government announced that there would be a review of the funding process. Accordingly, a request for proposals was sought and a tender was awarded to determine whether the process was appropriate.


[155]      In cross-examination, Mr. Clattenburg said he was knowledgeable about the financing methods utilized by the Government of Nova Scotia to pay for the construction of new schools and, previously, he had played a significant role in the School Capital Construction Committee.


[156]      Mr. Clattenburg confirmed the Department was building a new facility for the Strait Regional School Board in northern Inverness County, thereby shifting the students of the regional board at the NDA school to the new facility. This shift would leave all of the s. 23 students in the NDA School in Chéticamp.


[157]      Mr. Clattenburg said in Kingston/Greenwood, the Department is planning to build a new facility for the Annapolis Valley Regional Board. This will permit R.C. Gordon to become a fully homogeneous facility for Francophone and Acadian students.


[158]      According to Mr. Clattenburg, a new facility for the Strait Regional School Board will be completed and available by September 2000. As a result, all the students of the regional board presently attending ESIM will be transferred to the new facility. He was unable to comment on whether the regional board would be utilizing the ESIM for its elementary students, or whether it could be made available to Conseil  students on an interim basis and  said that the Department's intention was to build a new P-12 school for the Conseil in Petit-de-Grat which would be available on January 1, 2001 and funds were committed for the project.


[159]      Mr. Clattenburg acknowledged that a new facility in the Clare region for the SWRSB would permit the ESDC to become fully homogeneous but this project is on hold.


[160]      In Argyle, Mr. Clattenburg confirmed that the Department had agreed to build a new facility for grades primary to 12 for the Conseil, but the school is on hold.


[161]      Mr. Clattenburg agreed that there had been a delay with respect to the construction of schools since 1992. Some of them, built through the P3 funding process, were projects which had been approved in 1992.


[162]      Mr. Clattenburg acknowledged that until the establishment of the Conseil, the School Capital Construction Committee did not give any consideration to s. 23 Charter requirements, or did not consider any enrollment estimates or calculation for new schools for children of s. 23 parents


[163]      Mr. Clattenburg acknowledged that in 1997 the School Capital Construction Committee received a request to construct a homogeneous French school facility in Petit-de-Grat and also in Dartmouth. For Petit-de-Grat, the request was to renovate an existing school while the Dartmouth request was to build new facilities as an addition to École Carrefour. His committee also considered other requests from the Conseil , including renovations to the school in Sainte-Anne-du-Ruisseau School in Argyle and the N.D.A. School in Chéticamp along with the renovations to the Conseil  head office.


[164]     Mr. Clattenburg had no prior knowledge that the Premier, in 1998, had made a promise to provide homogeneous French schools in Clare and Argyle. However, because of the promise made by the Premier, and the continued request from the parents of Clare, it was decided to divide ESDC into wings and he claims that this school is a homogeneous facility.


[165]      Mr. Clattenburg said he was familiar with the Joint Committee's report to establish homogeneous school facilities in Clare and Argyle, by September 2000, under the administration of the Conseil, regardless of the new school construction for the local Regional Board.


[166]      Mr. Clattenburg admitted that there had been a change in the date for providing homogeneous school facilities in Clare and Argyle from September 2000 to September 2001, and claimed that this was due to the lack of funds.  However, Mr. Clattenburg acknowledged that he had played no role in advising the government of the difference in the costs of leasing schools from September 2000, rather than September 2001. He was uncertain as to the additional lease payment for a period of one year.


[167]     Mr. Clattenburg agreed that the Deputy Minister, Mr. Gillis, had accepted the Joint Committee Report, and these homogeneous facilities would be available in September 2000, yet a change had been made by the Department to delay the implementation date of homogeneous facilities in Clare and Argyle to September 2001.


[168]      Mr. Clattenburg acknowledged that the 1999 announcement was, in part, a response to the requirements of s. 23 Charter rights.


[169]      Mr. Clattenburg had no prior knowledge of the decision to put the construction of the 16 schools on hold.


[170]     Mr. Clattenburg acknowledged that the planned review of the P3 funding process had not taken into account the requirement of s. 23 of the Charter, nor had the decision of the Government to place the entire project on hold included any s. 23 considerations. As well, the  Speech from the Throne did not address specific s. 23 Charter requirements.


[171]      Mr. Clattenburg admitted in cross-examination that the P3 review could lead to a decision that some of these schools would not be built, or at the very least, delayed and said it takes a period of between eighteen and twenty-four months to plan, design and construct a new facility.



Philippe Louis Landry


[172]      Mr. Philippe Louis Landry has been a regional education officer with the Department of Education since 1992. Mr. Landry had also worked in a variety of educational and supervisory positions in the southwestern part of Nova Scotia. Although his main duties include conflict resolution and liaison between the Conseil  and SWRSB, Mr.  Landry had direct contact with the community of Clare and Argyle and with the Department of Education.


[173]      He said attempts to have homogeneous programs started in the mid 1970s in southwest Nova Scotia.  Although such attempts to launch this program did not succeed at that time, he noted that discussions  became rather agitated.


[174]      Mr. Landry claims that French programming started in the 1978-79 school year. The Clare and Argyle regions were ahead of other Acadian regions. In Inverness and Richmond counties, French programs became a reality later.


[175]      He indicated that in Argyle and Clare, a French first-language elementary program was initiated in 1976 while in Petit-de-Grat, Richmond County, French-first elementary programming only occurred in 1979. Later, other areas acquired French-first programming.


[176]      Mr. Landry acknowledged that after the court challenge by Acadian parents, the province established the École Cornwallis to serve for grades primary to 9 students of entitled parents in the Sydney area.


[177]      Mr. Landry indicated that in 1993, the Department hired a consultant to travel in the province to assess the implementation of French governance. He recommended that the Acadian and Francophone population should be contacted to determine the different models of governance, that the Department hire an executive-director, and establish a school advisory council.


[178]     Mr. Landry indicated that in southwestern Nova Scotia, some of the Acadian parents were concerned about French governance, as there was a lack of understanding and knowledge of the extent of the changes, as well as a lack of awareness of their rights under s. 23 of the Charter. Mr. Landry gave vivid testimony of these various discussions, which produced  serious debate among Acadians, as well as between the Acadians and the English-speaking population.


[179]      The Minister of Education proposed a separate  provincial school board with a particular mandate to establish homogeneous French programs.


[180]      In addition to the Conseil, the Minister also appointed advisory councils for each school.


[181]      Prior to 1996, the Conseil  had homogeneous French programs, at the primary level, in many areas of the province. The elementary level, in certain areas, went up to grade 8. As a result, attempts were made to implement homogeneous French programs at the secondary level, although many parents believed that the best alternative for their children was to have mixed programs through high school.


[182]      Mr. Landry acknowledged that when the Conseil was established, that Acadians, at that time, were more aware of their Charter rights than previously. Various meetings were held in the different Acadian regions to inform parents of their rights under s. 23 of the Charter to attempt to institute homogeneous programs, both at the elementary and secondary level. In 1996 and 1997, meetings were held with various parents in the Argyle, Clare, Chéticamp, and Petit-de-Grat regions, to explain the benefits of Francophone governance and to "stabilize" the Acadian community. As a result of the intervention of Mr. Landry and members of the Conseil  and of the Federation, the Acadians became more sensitized to the benefits of French governance.


[183]      Mr. Landry acknowledged that the Province of Nova Scotia is ready for homogeneous French programs and homogeneous schools at the secondary level.


[184]      Mr. Landry said that at SAR, of the 222 students registered with the SWRSB, 154 of these are  children of entitled parents and at ESDC, of the 146 students, from grades 7 to 12, 125 are children of entitled parents.


[185]      Mr. Landry said that the cost per student for the Conseil  is $5,700 annually while the next most expensive board is the Strait Regional School Board, with a per student cost of $5,500, however, he agreed it is more expensive to operate the Conseil  as it needs to cover the entire province and has several regional offices.


[186]     Mr. Landry also agreed that the Department  was committed to establishing homogeneous French schools in the province. In Clare and Argyle, the Department, along with the regional board and the Conseil, a joint committee  had approved the establishment of  homogeneous French schools for their areas in September 2000, and this was not dependent on the Department providing additional facilities. The Conseil  was administering the Clare and Argyle schools. Mr. Landry agreed that the present setup of the Clare High School is a temporary one and that the Department recognized that homogeneous French schools and homogeneous French programs would be achieved once the new schools for the regional board had been built.


[187]     Mr. Landry said the Joint Committee Report had received the approval of the Department of Education, the Conseil and the regional board and the Deputy Minister of Education.


[188]     Mr. Landry also said a period of sensitization was required before the implementation of homogeneous French programs and homogeneous facilities in the early part of the 1990s. Mr. Landry claims that the Conseil  was of a similar view. Although many parents were pressing for homogeneous French programs in 1992 and 1993, he claims that there were many parents who were not ready for it. He said it was necessary to consult with, not only the Acadian community but also, the stakeholders in the regional board, including parents, students, and teachers.


[189]      Mr. Landry maintained that the ESDC is a homogeneous school because it is divided into two wings, although the Department is committed to building a new school which will allow regional board  students to move to their own  facilities, thereby leaving only the Conseil students to occupy the existing ESDC. Dealing with Argyle, it was the committee's recommendation that a new school be built for the regional board and for the Conseil  students.


[190]      Mr. Landry said that he had reviewed Dr. Landry's assessment of why parents were reluctant to have their children enrolled in homogeneous French programs.


[191]      Mr. Landry said that the quicker these schools are built, the better it would be for the Acadian and Francophone students.




[192]       The Applicants seek a declaration that they are entitled to homogeneous programs and homogenous facilities, to be paid out of public funds, without unreasonable delay, and that the Respondents are to use their best efforts to provide such programs and facilities.




[193]     The Applicants, Glenda Doucet-Boudreau, Alice Boudreau, Jocelyn Bourbeau, Bernadette Cormier-Marchand, Yolande Levert and Cyrille LeBlanc are entitled parents under s. 23 of the Charter of Rights and Freedoms and the Applicants and other s. 23 parents have a legal right to have their children educated in the language of the minority. The Applicant, the Federation, represents other s. 23 parents who have a similar right.


[194]      The Applicants are entitled to French homogeneous programs and French homogeneous facilities at the secondary level, paid out of public funds, without unreasonable delay.


[195]      The Conseil and the Department of Education are to use their best efforts to comply with  these findings.




[196]      I find that the individual  Applicants are s. 23 parents and entitled to make this application. The evidence as to this point is beyond dispute or controversy. I also find that the Federation, whose mandate and purpose is to promote the establishment of French, first-language education, is also entitled to participate in these proceedings, on behalf of other s. 23 parents.


[197]      I am satisfied that each of the five regions has a sufficient number of s. 23 children to warrant both programs and facilities at the secondary level and, therefore, the higher end of the “numbers warrant” test has been met.


[198]      It is apparent that the real issue between the parties is the date on which these programs and facilities are to implemented. The Department, in its submissions, does not challenge the Applicants’ right and entitlement to these programs and facilities but point to a number of factors which ought to satisfy the Applicants. The Conseil opposes the Applicants’ claim for an earlier implementation of the transition plan but supports the Applicants in its demand for declaration that the Department ought to directed to provide homogeneous facilities.


[199]      I find that the Department has recognized that the linguistic minority are entitled to programs and facilities. It has provided programs and facilities at the elementary level as required by the Charter and has established the Conseil to bring about French-first programs to children of s. 23 parents.


[200]      The Department did not provide either statistical or financial evidence  to properly argue that the Applicants should not succeed or that the costs are such that the “numbers warrant” test has not been satisfied.  Furthermore, the Applicants have made out a case that the number of children of s. 23 parents are higher than the number of children considered by the Supreme Court in Mahe. In fact, the number of students actually registered in Grade 9 to 12 in Argyle, Clare, Isle Madame and Cheticamp for the current school year would justify stand alone facilities. I have considered the registration at E.C. Gordon for grades primary to 12 to conclude that the average number of students registered at this school would justify the establishment of a homogeneous school facility. As the Department has confirmed, in Clare and Argyle, there are a significant number of children of s. 23 parents, although registered with the regional board, who are entitled to attend s. 23 facilities. I also infer that in Cheticamp and Isle Madame, the other two Acadian regions of this Province, there would be a number of s. 23 children who are registered with the regional board who also would be entitled to attend the facilities managed the Conseil.


[201]       As I observed earlier, the Department has not led any evidence that  homogeneous facilities are not needed to comply with the requirements of the Charter, or that the test set out in Mahe and followed in Reference and Arsenault Cameron is to be disregarded, or that there is no factual basis to permit the court to find that the threshold has not been met. I have concluded that given the number of students who are either registered at schools in Clare, Argyle, Ile Madame and Cheticamp or entitled to register, the numbers warrant test has been clearly made out.


[202]      The Respondents considered that due to the lack of consensus in the Acadian and Francophone communities, it was best to delay the implementation of the transition plan until the community could be sensitized. The Conseil maintains that its budgets are based on student enrollment and any loss in student enrollment would have an effect on the type and quality of programs it could offer to its students.


[203]      The Department claims after the establishment of the Conseil, it was several years before the Conseil made a request for  provide homogeneous facilities in Clare and Argyle and therefore, the Conseil should shoulder any responsibility for the delay. The Department also maintains that over the last 18 years, much has been achieved in the field of education for the linguistic minority as the significant number of French elementary homogeneous schools offering complete homogeneous programs.  I have also been reminded by the Department that  there are other students registered with the Regional Boards.


[204]      I find that the Respondents did not give sufficient priority to the serious rate of assimilation occurring among Acadians and Francophones in Nova Scotia and the fact that rights established in s. 23 are individual rights.


[205]      I also find that the Department did not take into account that school facilities were key instruments in preventing  further assimilation and that as parents had been seeking these schools for many, many years that the establishment of the Conseil was but one  step in  recognizing the need for a concentrated effort to provide the linguistic minority with programs and facilities geared to the preservation and the flourishing of the language and culture in their own facilities. The Department equated the provision of programs and facilities for s. 23 students similar to the programs and facilities for students generally.


[206]      It is beyond any doubt that it is time that homogeneous programs and facilities be provided to s. 23 students. Mr. Sirois and Mr. Landry share the opinion of the Applicants on this point. Homogeneous programs in homogeneous facilities is the best method available to deal with the problem of assimilation. Mr. Sirois and Mr. Landry also said that the sooner homogeneous programs and facilities are implemented, the better.  Dr. Landry and Dr. Beaudin concluded that homogenous schools are the best tools to deal with the assimilation and  Dr. Landry said that family is important to maintaining a language both so were homogeneous schools.


[207]      Ms. Dewolfe’s concerns are valid. The serious and perilous state  of the homogenous programs in the Isle Madame and Petit de Grat area of Richmond County is real. The late implementation of a homogeneous  program and facilities in this area has had a negative impact on current Grade 9 enrollment and is having serious effect on the student and teachers in Argyle. Mr. Marchand,  in his Affidavit, referred to the serious erosion in the number of s. 23 student who speak French in the classroom and common areas as compared to the period he was a student at the same high school over 30 years ago.


[208]      Ms. Cormier-Marchand and Mr. Marchand also spoke of their daughter who after several months in an English environment prefers to speak English at the home rather than French which she regularly spoke when she attending École Petit-de-Grat.


[209]      Mr. LeBlanc testified of his daughter’s decision to enter an English community college rather than a French one because she was concerned she would  be unable to successfully complete the French program.


[210]      I find that the lack of homogeneous programs and facilities in the regions under consideration has had and continues to have a detrimental effect on the preservation and growth of the French language and culture. The statistical analysis of Dr. Beaudin’s proves this beyond any doubt. During the relevant period, the rate of assimilation varied between 13.5% and 59.3%. In fact, the rate of assimilation has increased between 1991 and 1996. Given the lack of concrete efforts taken between 1996 and 2000 to provide homogeneous schools and facilities to s.23 children, I would draw an inference that assimilation today continues at least as the same rate as between 1991 and 1996. In making this inference,  I have in mind that in Halifax-Dartmouth, the rate of assimilation has in fact decreased in 1991 and 1996, most probably due to the establishment of École Carrefour du Grand-Havre. I believe that the lack of homogeneous facilities bear directly on this point.


[211]      I am aware that parents of Acadian and Francophone children were not in agreement on the implementation of homogeneous programs and facilities  and many of the meetings produced very heated exchanges. As a result, the Conseil and the Department waited for a consensus to be reached, or at least permit tempers to cool. In an attempt to deal with the requests from s. 23 parents in Clare and Argyle,  the Joint Committee made of the regional board, the Conseil and the Department met with the various stakeholders, and after a series of meetings, the Committee jointly agreed to provide homogeneous facilities in September 2000.


[212]      I do not accept that the need to consult on the lack of consensus or to sensitize the members of the linguistic minority is an answer  to any Charter breach.  In fact, apart from keeping entitled parents advised of the progress being made, I do not agree that s. 23 contemplates the need for a consensus among s. 23 parents before steps are taken to comply with the provisions of s. 23. Such an approach is not consistent with the purpose and objective of s. 23 and the test set out in s. 23(3). If consensus or approval of any proposal  was required, such a requirement would have been included in the Charter. Its absence, therefore, tells me that such consensus and majority approval is not required.  I do not agree that the principles set out in Pytka et al. v. Board of Education of Halifax District School Board  (reflex-logo) reflex, (1993), 124 N.S.R. (2d) 1, have any application to the matter before me.


[213]      As was noted by Chief Justice Lamer in the Reference case, the rights granted to s. 23 parents are individual  rights and “not subject to the will of the minority group to which they belong, be it that of a majority of that group, but only to the ‘numbers warrant’ condition” (p. 739).


[214]      The Department argues that I should take a more cautious approach to the interpretation of s. 23, since the rights were acquired through political compromise and, therefore, the progress made in this Province since 1982 should be considered.  Dealing first with the argument that I should take a tentative and deliberate go-slowly approach, s. 23 rights, although acquired through political compromise, are legal rights and right holders are entitled to have them observed. I do not see a basis that the enforcement of these rights  should be, in any event, modified or attenuated. Such an approach, although suggested in an earlier decision of the Supreme Court, was specifically addressed in R. v. Beaulac, [1999] S.C.J. No. 25 at p. 16:


. . . I agree that the existence of a political compromise is without          consequence with regard to the scope of language rights.

. . . It also means that the exercise of language rights must not be considered exceptional, or something in the nature of a request for an accommodation.

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada; see Reference re Public Schools Act(Man.), supra, at p 850. To the extent that Societe des Acadiens du Nouveau-Brunswick, supra, at pp. 579-80, stands for a restrictive interpretation of language rights, it is to be rejected. The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inconsistent with the requirement that language rights be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply. It is useful to re-affirm here that language rights are a particular kind of right, distinct from the principles of fundamental justice. They have a different purpose and a different origin. I will return to this point later.


[215]      It must be remembered that the Charter was proclaimed into law in 1982 and, as a consequence, this resulted in a significant change in the manner in which the education of the children of the linguistic minorities would take place.  Up to that point in time, very little emphasis had been placed by the educational authorities or school boards on providing a level of education in the French language which  would permit the linguistic minority to retain and promote their language and culture.  There are clearly a series of statistics and reports indicating, at least in this province, that the level and rate of assimilation of the minority into the English-speaking majority was reaching critical levels. The purpose of s. 23 was to give entitled parents the right to have their children educated at the elementary and secondary levels in the language of the minority and the extent of these programs would be subject to the “numbers warrant” qualification.  


[216]       During the last 18 years, the Department  did not determine if the regions covered in the Application met the lower or upper end of the “numbers warrant” test to determine if s. 23 parents should be offered their own homogeneous facilities. In fact, there is no evidence before me to indicate that the Department commissioned any studies for this period to determine the effect, positive or otherwise, of providing homogeneous programs and facilities to students of grades primary to 8 only.  


[217]      Furthermore, I find that the Department did not give specific consideration to s. 23 rights or requirements of the linguistic minority from 1982 to 1997, when assessing priorities for  new school construction, despite the fact that the Province  had committed itself to comply with the requirements of s. 23, as a signatory to the Charter. School facilities were approved on an “as required” basis until 1992 when the Department established the School Capital Construction Committee. Despite the Department’s decision to formalize the approval process for new school facilities, the criteria applied by the committee did not take into account the legal requirements of s. 23.


[218]      Certainly, between 1982 and 1997, the Department did not meet its obligations under s. 23 of the Charter. It cannot be said that the provision of only French-first education at the elementary level in these fifteen years met the clear and unmistakable requirements of the Charter.  At present,  only one school, École Carrefour du Grand-Havre in Dartmouth, offers a full grades primary to 12 French homogeneous program in a  homogeneous facility.


[219]       It must be remembered that the Department has a positive duty to meet the requirements of s. 23: Arsenault-Cameron, at page 15 [para. 32]:

The province has a duty to provide official minority language instruction where the numbers warrant.  As Dickson C.J.C. pointed out in Mahe, the "sliding scale" approach to s. 23 means that the numbers standard will have to be worked out by examining the particular facts of each case that comes before the courts. The relevant number is the "number who will potentially take advantage of the service" (p. 384), which can be roughly estimated as being somewhere between the known demand and the "total number of persons who potentially could take advantage of the service"; see Mahe, supra, at p. 384. Lamer C.J.C. defined the number in Reference re Public Schools Act (Man.) in this way, at p. 850: "the number of persons who can eventually be expected to take advantage of a given program or facility".


[220]      I find that education of young children is a continuous process and cannot be deemed to be complete in grade 8. It is fundamental to understand that the Charter requires the Province to take positive steps to provide for both elementary and secondary education for the children of the linguistic minority. The signatories to the Charter, this Province among them,  agreed that both the elementary and secondary education programs and facilities were of equal importance and the task was not complete until programs and facilities for the children of s. 23 parents were offered, where the numbers warrant. 


[221]     In Arsenault Cameron,  the point is made that the programs and facilities offered to the children of the linguistic minority must be such that they provide for substantive equality (at page 18) [para. 31]:

As discussed above, the object of s. 23 is remedial.  It is not meant to reinforce the status quo by adopting a formal vision of equality that would focus on treating the majority and minority official language groups alike; see Mahe, at p. 378. The use of  objective standards, which assess the needs of minority language children primarily by reference to the pedagogical needs of majority language children, does not take into account the special requirements of the s. 23 rights holders.  The Minister and the Appeal Division inappropriately emphasized the impact of three elements on equality between the two linguistic communities: duration of the bus rides, size of schools and quality of education. Section 23 is premised on the fact that substantive equality requires that official language minorities be treated differently, if necessary, according to their particular circumstances and needs, in order to provide them with a standard of education equivalent to that of the official language majority.


[222]      I am guided by this decision and find that the Department has a constitutional duty to provide such programs and facilities which will permit the children of the linguistic minority to have substantive equality in elementary and secondary education.


[223]      Section 33 of the Charter permits the provincial legislature to override ss. 2, 5 and 15 of the Charter but does not permit the provisions of s. 23 to be amended or modified. Consequently, the provisions of the Charter cannot be modified by executive or cabinet directive.


[224]      I refer to the decision of Re Conseil  de  Dufferin et Peel et al. v. Ministre de l'éducation et de la formation  (reflex-logo) reflex, (1996), 30 O.R. (3d) 681. In this case, the Ontario Government had decided to delay the construction of the new homogeneous school facility for the minority school board. Plans were made to build the new facility, and funding was allocated. However, the school board was advised by the Province that all projects not already tendered were under review. Notwithstanding that advice, the board called for tenders, which were approved on February 20th, 1996. However, on March 6, 1996, the Department imposed an across-the-board freeze on capital expenditures against  catholic and public, elementary and secondary, Anglophone and Francophone schools, except for those budgets which had already received final approval.


[225]      At pp. 683-84, Justice Hawkins stated:

The recently elected government of Ontario was elected on the  platform in which deficit reduction was a principal plank. The pursuit of that objective has been difficult with resulting  job loss in the public sector and reduction of funds and grants available to public institutions. The poor must be fed and housed, the sick and elderly must be cared for. Students with special needs must have those needs met. Every institution accustomed to the receipt of public funds clamours, and rightly so, for its share. The respondent's factum quotes from the government's fiscal and economic statement, released in November 1995, in these words:

The only way to stop the growth of interest costs is to stop government overspending. To do so means rethinking which services the government should provide and how it should provide them. We need to focus government spending on the services we value most and we need to restructure government and its agencies so the services provide better value for every tax dollar.

[226]  At page 684, Justice Hawkins continued:

. . . The right of citizens of Canada to have their children educated in what is called, conveniently and popularly, a “minority” language is a right constitutionally protected by s. 23 of the Canadian Charter Rights and Freedoms. A democratically elected government may in most cases and quite properly determine what in its view are "the services we value most”.  If it is wrong in that determination it answers at the ballot box. In a climate of job loss, welfare cuts and general reduction of government services it is not difficult to imagine that a capital expenditure of over $10 million  for an improved French language secondary school might not qualify as a service that “we value most”, supposing that the “we" referred to therein  is the non-Francophone majority. It is to avoid such a result that we have constitutionally protected rights. Elected representatives of the people create constitutions, leaving it to non-elected judges (in Canada at least) to decide what exactly they have created. (Underlining added.)


[227]      Dealing with homogenous programs, the Conseil was established in 1996 to provide French-first education in the Province of Nova Scotia. It initially adopted a transition plan to have French-first education in September 2000. This evidence is uncontradicted. Argyle and Isle Madame were delayed due to the fear that enrollment would drop and funding would fall as the funding for the Conseil  programs is based on student enrollment. Secondly, the concerns of the Acadian parents who were opposed to the transition plan had to be taken into account. Mr. Sirois agrees that on a pedagogical basis there were no reasons why such homogeneous programs should be offered as soon as possible rather than wait.  Mr. Landry also agreed that it was now time to establish homogeneous programs.


[228]      I accept that the Conseil is the statutory body charged with the responsibility of bringing about French-first programs in Nova Scotia and  special reasons must exist to allow s. 23 parents to challenge the decision made by the Conseil. In Arsenault-Cameron, at p. 18 [para. 58]:

This does not mean that in a special situation a s. 23 right holder could not challenge the decision of a minority language board; it simply means that the decision is subject to the exclusive powers of the minority over the management and control of minority language instruction and facilities under s. 23 and that this is the context within which a challenge of that decision would have to be made.


[229]      I have carefully considered the evidence of Dr. Beaudin and Dr. Landry and I find the need to establish French-first programs and facilities is critical to permit the linguistic minority to retain their language and culture. Without a strong and effective program at the secondary level, assimilation of Acadians and other Francophones will occur. I have also considered the evidence of Ms. Dewolfe and that of the Applicants that, unless meaningful action is taken promptly, homogeneous programs in Petit-de- Grat will be in jeopardy, as fewer and fewer children will likely register in the program.


[230]      Ms. Rioux’ evidence is also important to determine if there are special reasons entitling the Applicants to challenge the decision of the Conseil. She said that since 1997, the enrollment numbers for the Clare, Argyle, and Isle Madame show signs of continuing assimilation which is reflected in a reduction of Conseil student registration and a corresponding increase in the enrollment of the regional boards.


[231]      I am satisfied that if there had been homogeneous programs and facilities in place where they do not exist presently, the loss of students would have been less. I consider the effect of École Carrefour du Grand-Havre  as contributing to a decrease in the rate of assimilation, and the fact that enrollment increased is tangible proof that homogeneous programs, at both elementary and secondary levels, in homogeneous facilities, is a positive tool for the linguistic minority to retain and strengthen their culture and language.





[232]      This school has a  homogeneous program from grades primary to 12. Therefore, the Conseil  complies with the provision of homogeneous programs. However, this facility is a mixed school since the Annapolis Valley Regional School Board grades primary to 2 students also attend this school. As Mr. Sirois stated, it would be preferable for students to have their own facility, despite the fact that there is minimal contact between the Regional Board students and the students of the Conseil.


[233]      Mr. Clattenburg confirmed that the Department was seeking to determine site costs to build a middle school for the Annapolis Valley Regional School Board and this school would be available to the Regional Board by September 2000. This would permit the Conseil students to have E. C. Gordon as a homogeneous facility in September 2000. Therefore, this will provide the Conseil with both homogeneous programs and a  homogeneous facility.




[234]      According to Mr. Sirois, the NDA School in Chéticamp will offer a homogeneous program for grades primary to 12 in September 2000. Mr. Clattenburg confirmed that the North Inverness Academy would be available to the Strait  Regional School Board by September 2000 and the Conseil would then have the NDA School in Chéticamp as a homogeneous facility in September 2000. The evidence establishes that the program and facility will be available in order for the Department and the Conseil to be in conformity with the Charter in September 2000.




[235]      The Conseil is to use its best efforts to advance the implementation date of the transition plan to provide homogeneous programs for grades 9 to 12 in September 2000, as the entire program on Isle Madame may be in jeopardy.  


[236]      With respect to homogeneous facilities, the Department has confirmed that the new grades primary to 12 facility will be available to the Conseil in January 2001.  However,  I believe that the Conseil should be provided with an interim homogeneous facility by September 2000. The Department maintains that it is preferable to allow the Conseil  and the Strait Regional School Board to make their own arrangements with respect to an  interim facility by September 2000, the regional board is not party to this proceeding and any order of the Court would not have any binding effect on the regional board. Consequently, the Department is to make its best efforts in providing homogeneous facilities to the Conseil on  Isle Madame by September 2000.




[237]      The Conseil is to use its best efforts to provide primary to grade 12 homogeneous programs by September 2000.


[238]      The Joint Committee Report recommended the establishment of a homogeneous school in Argyle for September 2000. When the 1999 school announcement was made by the Province of Nova Scotia, the Conseil became aware that the new grades primary to 12 would only be available September 2001.


[239]       However, a delay of one year may very well extend to a much longer delay if one considers the type of delays which have occurred in the past when the Department was involved in the construction of school facilities and the delay may turn into a cancellation of the project, if it determined that the priorities of the Department or the provincial government prevents the construction of the facility.


[240]       The evidence is clear that the number of children  registered with the Conseil and the number of children of s. 23 parents who are registered with the regional board would easily satisfy the upper end of the test on the “numbers warrant” assessment.  In addition, the Department agreed that Argyle should have a homogeneous facility by September 2000 regardless of whether new facilities would be available at that time.


[241]      I am directing the Department to provide to the Conseil a homogeneous facility for the Argyle region not later than September 2001.




[242]      As the Conseil  is committed to providing homogeneous programs for its grades primary to 12 students by September 2000, the implementation of such programs as envisaged, will be sufficient to comply with s. 23 of the Charter.


[243]       However, the ESDC is  a mixed school. Currently, it is divided into two wings, and facilities such as laboratory, cafeteria, and library are shared. The recreation period is also shared. The  division of this school into two wings was only an interim measure, pending the completion of the new facility for the regional board, at which time the ESDC would become available as a homogeneous facility.


[244]      Without the Department indicating a fixed date  when a new facility will be built and available to the regional board, I am directing that the Department take immediate steps to provide a facility to the regional board, effective September 2001.  This will permit the Conseil to have ESDC as a homogeneous facility in September 2001.




[245]      The Applicants have requested  that I should maintain jurisdiction. I agree to do so.  I am scheduling a futher appearance for Thursday, July 27, 2000 at 1:30 p.m., and at that time the Respondents will report on the status of their efforts. I am requesting the Respondents to utilize their best efforts to comply with this decision.




[246]      Although I have received a submission from the Applicants on costs, the Respondents have not submitted any memoranda and I request that they file any submission with respect to costs within the next 30 days.





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