Can One Enjoy Both Francophone and Catholic Constitutional Rights?

This article was originally published in the Fall 2000  issue of  The Catholic Dimension, and is re-posted here for public reference. 

The Charter of Rights and Freedoms

In 1982, the Canadian Charter of Rights and Freedoms became law. It provided in section 23 that all citizens whose first language learned and still understood was that of the English or French linguistic minority in any Province, or who had received their primary school instruction in Canada in English or French, or whose older children had received primary or secondary school instruction in English or French, would have the right to have their children receive primary and secondary school instruction in that minority language. The right to minority language education applied whenever the number of s. 23 children were sufficient to warrant the provision to them of minority language instruction in minority language educational facilities.

In Alberta, that minority language educational protection was granted to the Francophone minority.

Before the Supreme Court: Mahe v. Alberta

In 1990, the Supreme Court of Canada heard a case from Alberta which sought to determine whether the right to minority language education, where numbers warranted, included the right to "management and control" over minority language facilities and instruction. Mahe and others argued that the establishment by the Edmonton Catholic Board of a Francophone school, Maurice Lavallee, was not sufficient to satisfy section 23 Francophone education rights. They argued that the Francophone community should be entitled to establish a school board by which "management and control" of French language schools would be accorded directly to the Francophone parents in Edmonton.

The Supreme Court of Canada ruled that the general purpose of section 23 of the Charter was to preserve and promote two official languages and two distinct cultures in Canada and to correct, on a national scale, the progressive erosion of minority official language education. The Supreme Court of Canada said that section 23 encompassed a "sliding scale" of requirements depending upon the number of students involved. They said that where numbers warranted, section 23 may require an independent Francophone school board.

On the other hand, where numbers of Francophone students were lesser, "management and control" might be satisfied by linguistic minority representation on the existing school board.

The Supreme Court of Canada determined that in the Edmonton area, there were sufficient numbers of section 23 students to justify, in both pedagogical and financial terms, the creation of an independent Francophone school. It also recognized that the creation of Francophone school boards might not be compatible with the constitutional rights enjoyed by existing Catholic school boards. It said that any interpretation of section 23 of the Charter "must be consistent with the rights and privileges of denominational schools". The protection of denominational rights consistent with Francophone educational rights would be easily accomplished where there was not a separate Francophone school board, and where members of the denominational minority were entitled to elect a person both of the denominational minority and of the linguistic minority to represent their point of view on the existing separate board. Where numbers warranted an independent school board, the Supreme Court of Canada said, "it is possible to constitute minority language boards along denominational lines."

The Supreme Court of Canada said particularly:

"I do not doubt that the rights of denominational school boards may, in some cases, result in limitations on the type of reorganization which might otherwise be required under s. 23. Denominational school guarantees could split up an eligible group of minority language students in such a way as to preclude the creation of a minority language school which would otherwise be required."

The Alberta Response: Francophone School Authorities

As a result of the Supreme Court of Canada decision in Mahe, the Province of Alberta passed amendments to the School Act, Part 8.1, providing for the creation of four non-denominational Francophone authorities in Alberta; one each for the Edmonton area, northeast, northwest and southern Alberta.

A Question of "Management and Control"

The southern Alberta Francophone authority, established on February 1, 2000, requested management and control of Ecole Ste. Marguerite-Bourgeoys in Calgary. The Calgary Catholic Board opposed transfer of the school because of their concern that the children attending the school would lose the constitutional protections of a guaranteed Catholic education. During an exchange of letters in late 1999 and early 2000, Calgary Bishop Frederick Henry expressed concern with the concept of a single or umbrella Francophone school board responsible for both public and separate Catholic Francophone governance in southern Alberta. He indicated that he would have no choice but to formally deny a school transferred to a non-denominational Francophone Authority, the status of a "Catholic school".

Edmonton Archbishop Thomas Collins stated that a unitary governance management model comprised of a single non-denominational school board, consisting of trustees and electors who are Catholic and non-Catholic, is not sufficient nor appropriate to deliver a fully-permeated Catholic education, consistent with the essential principles of Catholic education. Archbishop Collins stated that a non-denominational Francophone authority operating under a unitary governance management model could not provide a Catholic education that would meet the criteria of the Catholic Church.

There was also a concern that a non-denominational Francophone school program which was "de facto" Catholic, would be found to violate the rights of Francophone children attending the school who did not wish a fully-permeated Catholic education. Such a challenge, which could be taken under section 2(a) of the Charter of Rights and Freedoms, would be, probably, successful.

It was apparent to everyone involved that the right to provide a fully-permeated Catholic education was not constitutionally protected through a non-denominational Francophone authority.

It is clear that only denominational schools are entitled to exercise the constitutional protections accorded by section 93 of the Constitution Act, 1867 and section 17 of the Alberta Act, 1905, and more particularly, to permeate the Catholic faith in separate Catholic schools.

Fixing the Problem in the Short-Term

In June, 2000, the Calgary Catholic Board and the Southern Alberta Francophone Authority entered into an intense negotiation to work out a short-term solution in Calgary which would allow Catholic Francophone parents to provide for their children an education which was constitutionally protected both linguistically and denominationally.

On June 26, 2000, the parties signed an agreement requesting that the Minister of Learning create two new Francophone regional authorities for southern Alberta, a Separate Catholic Francophone Authority and a Public Francophone Authority, and to divide between them the existing non-denominational Francophone authority. The parties asked the Minister of Learning to appoint the existing members of the Southern Alberta Francophone Authority to the respective new boards and to set an election for September 2000 to fill the vacancies on the boards. The parties agreed that the current superintendent and secretary-treasurer of the Southern Alberta Francophone Authority would become the interim superintendent and secretary-treasurer of the Separate Catholic Francophone Authority and that the Separate Catholic Francophone Authority would enter into a contract with the Public Francophone Authority for the purpose of providing the services of the superintendent and secretary-treasurer to that authority.

The agreement between the parties provides that Calgary Catholic maintains actual and legal ownership of the school, but the funding and student count of the school becomes that of the Separate Catholic Francophone Authority. The Separate Catholic Francophone Authority would purchase from Calgary Catholic a complete education and support package, at cost, which would include administrative services, the services of the principal, teaching staff, professional support staff and support staff, for the term of the agreement. The teaching staff of the school remains the teaching staff of Calgary Catholic and the curriculum currently in place at the school would remain during the term of the agreement.

A Reconciliation Team was established to identify and address issues in the school community which were a source of division or conflict. This Team is to plan for a seamless transition and complete transfer of management and control of the school from Calgary Catholic to the Separate Catholic Francophone Authority after the issue of separate Catholic Francophone governance in Alberta is addressed in the longer term.

The Minister of Learning issued a Ministerial Order on July 7, 2000, effecting the terms of that agreement. As a result, in Calgary, in the short-term, Catholic Francophone parents are entitled to send their children to a school operated under a management structure which protects both their children's Francophone linguistic rights and Catholic denominational rights.

Fixing the Problem in the Long-Term

The parties also agreed to request that the Minister of Learning establish an investigative task force for the purpose of recommending legislative amendments to the School Act, so as to create distinct legal entities which would entrench both separate Catholic and Francophone education constitutional rights fully, so that "governance of separate schools which are both Francophone and Catholic will be granted and reserved to the Francophone Catholic community in a manner which enforces the constitution or protections of section 17 of the Alberta Act, 1905 and of section 23 of the Charter." The Catholic and Francophone communities in Alberta await the appointment of that task force by the Minister and the recommendations to amend the School Act so that all regions of Alberta will have access to education which fully protects both Francophone linguistic rights and Catholic denominational rights.