Chubbs v. Newfoundland and Labrador,  N.J. No. 174, Newfoundland and Labrador Supreme Court – Trial Division, May 6, 2004, Fowler, J.
The parents of approximately 19 children sued for the right of their children to attend minority language instruction within their own community, rather than travelling over the Quebec border to attend school in the French community of Lourdes de Blanc-Sablon.
The court noted that all parties had acknowledged that these children were rights holders pursuant to Section 23 of the Charter. The question for the court was how these minority language rights should be satisfied.
At the time of this decision the children were attending French language instruction in the Province of Quebec and returning to Newfoundland and Labrador to live with their families at the end of each school day.
The Court considered whether the number of students in the region of southern Labrador was enough to warrant more than what was being presently provided by the Province in the way of French language instruction. The Court referred to the Supreme Court of Canada’s decision in Mahe v. Alberta (1990) 680 D.L.R. (4th) 69 (S.C.C) where Chief Justice Dixon held that when considering the “numbers warrant” issue, that number would lie somewhere between the actual number and the potential number of students who could avail of minority language instruction. In this case, the court held that 17 students would be the working number. The Court noted that there was no case law or legislative provision indicating a specific or identifiable number of minority language students that would trigger Section 23 Charter Rights. The Court held that to determine whether the numbers warrant further accommodation with respect to minority language rights, the circumstances had to be reviewed on an individual basis within their own geographical, social and cultural context.
The next question with respect to the “numbers warrant” argument was whether Section 23 could mandate a certain type of curriculum to be held within the Province of Newfoundland and Labrador. The Court stated:
Before any comparisons are made between the educational merits of one plan over the other, it is important to focus on what the Supreme Court of Canada is really saying in Mahe (supra). Clearly Section 23 is concerned with the preservation and promotion of either of this country’s two official languages where either exists as a minority language in a Province. Section 23 is not about educational policy or curriculum development or school board relations or any of those matters which are clearly within the constitutional domain of the Province. Section 23 does however, identify and treats the instruction of children as the vehicle to achieve this minority language protection objective. Consequently, where the numbers warrant, these children have the right to be educated in the minority language in that Province. (para. 27)
The Court then noted that the Province of Newfoundland and Labrador was already providing full immersion in a totally French educational environment without these Newfoundland and Labrador students having to reside away from their homes and communities, and without them having to incur any tuition or travel expenses in doing so. The Court considered the other options available in terms of providing minority language instruction to these students, and ultimately held that financially the Province could not be expected to duplicate what was offered in the Quebec system for such a small number of students.
The Court then moved on to consider the cultural concerns of these students, concluding that any collateral distortion on the historical or socio-political uniqueness of Newfoundland and Labrador as viewed through the Quebec educational system would be balanced by the fact that these students were returning daily to their homes, family and local community influences.
The Court then considered whether transporting these children to the Quebec school for instruction complied with the “in that Province” requirement of Section 23.1 of the Charter. The Court referred to the Mahe decision again for the proposition that the Courts could breathe life into the expressed purpose of a section and should not avoid implementing the possible novel remedies needed to achieve the purpose of the section. The Court took a broad view of the phrase “in that Province”, and approved of the provision of minority language instruction to the children by transporting them into the Province of Quebec.
The Court then closed by noting that the Provincial French Language School Board for Newfoundland and Labrador should develop an administrative protocol to protect the management rights of the Section 23 rights holders whose children were attending school in the Province of Quebec.
In conclusion, the Court held that the number of children of the Section 23 rights holders was not sufficient to warrant further accommodation beyond transport into the Province of Quebec for French language instruction, and that the arrangement should be upheld.
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