IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

L’Association des parents de l’école Rose-des-vents v. Conseil scolaire francophone de la Colombie-Britannique,

 

2012 BCSC 1614

Date: 20121031

Docket: S103455

Registry: Vancouver

Between:

L’Association des parents de l’école Rose-des-vents
and Joseph Pagé In His Name and In The Name of all Rose-des-vents
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

Petitioners

And

Conseil scolaire francophone de la Colombie-Britannique,
The Minister of Education of British Columbia, and
The Attorney General of British Columbia

Respondents

Before: The Honourable Mr. Justice Willcock

Reasons for Judgment
In Chambers

Counsel for the Petitioners:

Nicolas M. Rouleau

Counsel for the Respondent, Conseil-scolaire francophone de la Colombie-Britannique:

Robert W. Grant
Mark C. Power
Jean-Pierre Hachey

Counsel for the Respondents, Minister of Education and Attorney General of British Columbia:

Veronica L. Jackson
Karrie A Wolfe

Place and Date of Hearing:

Vancouver, B.C.

May 30, 2012
June 1, 4-8, 11-15,
& 19-22, 2012

Place and Date of Judgment:

Vancouver, B.C.

October 31, 2012

Table of Contents

I.        INTRODUCTION.. 3

A.      Nature of the Petition. 3

B.      History of Proceedings and Identification of the Issue for Determination. 4

C.     The Hearing of the Petition Commencing May 30, 2012. 6

D.     Application to Strike Evidence. 7

1.         Hearsay. 8

2.         Relevance. 10

3.         Opinion Evidence. 12

4.         Argument 13

5.         Evidence Lacking Foundation. 14

6.         Conclusion. 14

II.      EVIDENCE.. 15

A.      Affidavits of the Petitioners and the CSF. 15

1.         Numbers. 16

2.         The Rose-des-vents Facilities. 17

a)       The Shared Facility. 17

b)       Limited Space. 18

c)       Renovation of the Activity Room.. 20

d)       The Library. 20

e)       The Gymnasium.. 20

f)        Washrooms. 21

g)       Exterior Space. 21

3.         Evidence of Insufficiency in Fact 21

4.         Comparable Majority Language Facilities. 22

5.         Transportation & Accessibility. 23

B.      Affidavits of the Minister of Education. 23

III.          APPLICABLE LAW... 27

IV.         DISCUSSION AND ANALYSIS.. 45

A.      Numbers. 45

B.      Point of Comparison. 47

C.     Facilities. 49

D.     Accessibility. 55

V.      JUDGMENT. 58

 


I.                 INTRODUCTION

A.              Nature of the Petition

[1]             The petitioners, representatives of parents living west of Main Street in the City of Vancouver who have the right to have their children receive primary  school instruction in French, seek a declaration that they are not being provided the minority language educational facilities guaranteed to them by s. 23 of the Canadian Charter of Rights and Freedoms (“Charter”). The Charter provides:

(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.

[2]             The petitioners say the facilities at l’école Rose-des-vents, at 5445 Baillie Street in Vancouver (“Rose-des-vents”), the only Francophone elementary school in the relevant catchment area, are not equivalent to those provided to Anglophone students in Vancouver.  They say inadequate facilities have led to the non-enrollment or withdrawal of students from the Francophone school system operated by the Conseil scolaire francophone de la Columbie Brittanique (“CSF”) and to their enrolment in more accessible schools of the Vancouver School Board (“VSB”) with superior facilities. 

B.              History of Proceedings and Identification of the Issue for Determination

[3]             L’Association des parents de l’école Rose-des-vents and Mr. Pagé, in his name and as a representative only of parents of children enrolled at Rose-des-vents, commenced these proceedings in the spring of 2010.  They sought a remedy under s. 24 of the Charter for the alleged breach of their constitutional rights and an order setting aside certain funding decisions made by the Minister of Education.  The challenge to the funding decisions was brought pursuant to the provisions of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241.

[4]             In response the CSF and the Minister of Education (“Minister”) raised the issue of responsibility for the alleged inadequacies in the facilities afforded to the petitioners.  The CSF joins the petitioners in alleging that the facilities available to rights-holders in the Rose-des-vents catchment area are inadequate, but argues such inadequacies are the result of insufficient funding of Francophone education in this Province.  The CSF in separate proceedings (SCBC, Vancouver Registry Action S103975), has challenged the adequacy of the global funding of minority language education in British Columbia.  The Minister says the CSF, as the agency charged with exercising management and control of the Francophone education system on behalf of rights-holders, has determined what facilities will be afforded to the Francophone minority and is responsible for the any inadequacies in Vancouver.  The petitioners seek to advance the cause of their children, if possible, without bearing the burden of establishing responsibility for the alleged inadequacies. 

[5]             On November 4, 2011, I considered whether pleadings of the respondents addressing those questions of responsibility for alleged inadequacies should be struck; whether certain issues should be determined in priority to others; and whether the petitioners should act as representatives of all rights-holders in the catchment area, rather than simply on behalf of parents who currently have children enrolled at Rose-des-vents.  Judgment on that application is indexed at 2011 BCSC 1495. 

[6]             Counsel for the petitioners at that time acknowledged the claim impugning ministerial decisions could necessitate extensive discovery related to the decision-making process and the role of the CSF in the delivery of constitutionally-mandated instruction and facilities.  The petitioners therefore applied for and obtained leave to amend the petition to delete the challenge to specific funding decisions brought pursuant to the Judicial Review Procedure Act and to limit the prayer for relief to a declaration that existing facilities do not meet the standard mandated by the Charter and an order that the court retains jurisdiction to later address any claim for further relief.  The petitioners were content that the remedy for any shortcoming would rest, in the first instance, in the hands of government.  They would seek further relief from the court only in the event of inactivity on the part of government in the face of a declaratory judgment.

[7]             With a view toward an efficient resolution of the claim, bearing in mind the direction in Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3 [Doucet-Boudreau], that allegations of infringements of s. 23 Charter rights should be addressed promptly, so as to minimize the effect of assimilation during protracted proceedings, I held, at para. 72 of my reasons:

... on the hearing of the petition the Court will first address only the issue of whether the existing facilities and transportation afforded to the children of rights holders in the Roses des vents catchment area are sufficient to protect the rights guaranteed to their parents under s. 23 of the Charter.

[8]             That order now requires me to consider the two questions described in the November 4, 2011, judgment:

a)              whether the rights-holders can establish their numbers warrant instruction and facilities; and

b)              whether existing instruction and facilities are in fact equivalent to instruction and facilities afforded to similarly situated majority language students.

[9]             At the November 4, 2011, hearing, the Minister sought to have the petitioners act as representatives of all rights-holders in the catchment area.  Counsel for the Minister took the position the petitioners met the criteria described in Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534.  The class of s. 23 rights-holders was said to be thoroughly and objectively defined.  The questions of fact and law common to all rights-holders were considered to be clear.  The Minister saw no divergence of interests between those of the named petitioners and the interests of all s. 23 rights-holders in the catchment area.  The Minister argued it was appropriate that the claims of all rights-holders be assessed once, and not litigated on a piecemeal basis.  I accepted that position. Joseph Pagé was ordered to act as a representative of all s. 23 rights-holders living in the catchment area.  No issue was then taken by any party to the description of the catchment area as the relevant geographical area for the court’s inquiry.

C.              The Hearing of the Petition Commencing May 30, 2012

[10]         The hearing of the petition commenced on May 30, 2012, and continued for approximately five weeks.  The parties submitted voluminous affidavit evidence and excerpts from transcripts of the examination of deponents under oath.  Following submissions of the petitioners and the CSF, counsel for the Minister sought an order permitting the Minister to obtain further discovery evidence and to further cross-examine affiants, and for leave to adduce further affidavit evidence.  Judgment on that application was reserved to July 6, 2012. 

[11]         The application was dismissed on the grounds that much of the evidence the Minister sought leave to adduce related to matters irrelevant to the preliminary issue for determination, including the CSF’s capital and operational funding requests and the process for handling such requests through the development of the annual facilities grant and the Francophone educational premium, operational funding by the CSF, the history of the choice of the site for the school, and decisions with respect to grade configuration.  I concluded that I should not exercise my discretion to allow further discovery because the discovery sought appeared to be unnecessary to determine the central issues on the application.  Those reasons are indexed at 2012 BCSC 1206.  I am satisfied the parties have had ample opportunity to address the issues as described in the pleadings and by my order of November 4, 2011. 

D.              Application to Strike Evidence

[12]         Significant effort was expended at the hearing addressing the admissibility of the evidence of the petitioners and the CSF.  Counsel for the Minister objected to the admissibility of evidence on the following bases:

1.               Hearsay:  the Minister says statements made on information and belief that do not fall within exceptions to the rule against the admission of hearsay evidence at trial are inadmissible;

2.               Relevance:  the Minister objects to the admission of evidence that is not relevant to the matters now before me.  The petitioners and the CSF acknowledge there is some merit to this objection.  The affidavits were filed in some cases before the ruling on the question to be heard as a preliminary issue;

3.               Opinion Evidence:  the Minister objects to the admission of statements of opinion by lay witnesses that are said to offend the rule with respect to the admission of opinion evidence;

4.               Absence of Foundation:  the Minister objects to statements in affidavits that appear to be conclusions without appropriate foundation;

5.               Argument:  the Minister objects to the admission of statements in the affidavits filed by the petitioners and the CSF that are argumentative. 

[13]         The objections to admissibility were numerous. In order to ensure the parties have a record of the evidence admitted on the hearing of the petition, I append to these reasons for judgment, as Schedule A, a table listing the objections to evidence and the ruling with respect to whether the evidence in question is admissible.  The grounds for the rulings on admissibility are, briefly, as follows.

1.               Hearsay

[14]         The Minister objects to hearsay evidence on the ground it is presumptively inadmissible unless an exception to the hearsay rule applies.  In response to the Minister’s objection the petitioners and the CSF say:

1.               Some of the evidence to which objection is taken is not tendered to prove the truth of its contents and is not hearsay;

2.               Some of the evidence falls within traditional exceptions to the hearsay rule;

3.               The balance of the hearsay evidence falls within the principled exception to the rule described in R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 [Khelawon]; and

4.               Rule 22-2(13) of the Supreme Court Civil Rules give the court a broad discretion to admit affidavit evidence containing hearsay.

[15]         The petitioners and the CSF say the Civil Rules permit the court to relax the rules of evidence on the hearing of a petition.  They say that not only is the court able to admit evidence on the basis that it meets the principled exception to the hearsay rule (as being evidence which is admitted as a result of the necessity of reliance upon hearsay and the apparent reliability of the evidence tendered) but that the court has a broad discretion described by Rule22-2(13) to grant leave to the parties to adduce hearsay evidence at the hearing of a petition.  Both before and after the enunciation of the principled exception to the hearsay rule by the Supreme Court of Canada, this court has generally granted leave under Rule 22-2(13) and its predecessor, Rule 51(10), only where the evidence tendered has been considered to be fundamentally reliable: Ulrich v. Ulrich, 2004 BCSC 95; Miller v. Yukon, 2010 YKSC 22; Chamberlain v. Surrey School District No. 36 (1998), 60 B.C.L.R. (3d) 311 (S.C.); Brouwer v. British Columbia (Minister of Energy, Mines and Petroleum Resources), 2000 BCSC 1743; Trus Joist (Western) Ltd. v. United Brotherhood of Carpenters and Joiners of America, Local 1598, [1982] 6 W.W.R. 744 (S.C.); Litchfield v. Darwin (1997), 29 B.C.L.R. (3d) 203 (S.C.); and Beazley v. Suzuki Motor Corp., 2008 BCSC 850.

[16]         If the discretion to admit hearsay evidence at the hearing of a petition permits a relaxation of the necessity test described in Khelawon, there is no need to do so in this case.  The petition did not come on for hearing in urgent or exigent circumstances and the parties had ample opportunity to obtain, test and lead evidence.

[17]         I therefore exclude from consideration hearsay evidence that could be adduced by other means or is not fundamentally reliable.  I exclude the hearsay evidence of affiants with respect to inadequacies at Rose-des-vents or superior facilities elsewhere, as described to them by third parties and not observed by the affiants.  There is a wealth of evidence in this case founded upon direct observation. It is not necessary to rely upon much of the hearsay to which the Minister objects. I adopt the views expressed in Yellowknife (Assn. des Parents ayants droit de Yellowknife c. Procureur général des Territoires du Nord-Ouest, [2012] N.W.T.J. No. 45 (S.C.) [Yellowknife], where the court held that evidence of parents with respect to statements made to them by others concerning activities and problems at school was neither necessary nor reliable.  The court held, at para. 347:

L'exception raisonnée à la règle interdisant la preuve par ouï-dire n'a pas été développée pour des raisons de commodité ni des raisons purement pratiques.  Elle a été développée autour de principes se rapportant aux raisons de base pour lesquelles le ouï-dire n'est généralement pas permis: le fait que ce genre de preuve ne permet pas à la partie adverse de tester sa fiabilité.

(The principled exception to the rule prohibiting the introduction of hearsay evidence was not developed for reasons of convenience or purely practical reasons.  It was developed around principles relating to the basic rationale for which hearsay is not generally permitted: the fact that type of evidence does not allow the adverse party to test its reliability.)   [My translation.]

[18]         The hearsay rule does not prevent admission into evidence of the results of a poll where introduced as an expression of the views of a large number of people. Such polls may be a necessary and reliable means of adducing evidence of a community’s views, where such views are relevant to the issue before the court. In the case at bar, the comparative standing of Rose-des-vents in relation to nearby Anglophone schools is relevant. So is evidence of the relative importance of factors considered by Francophone parents when making enrollment decisions.  Survey evidence with respect to the intentions of parents to enrol their children at a Francophone facility was held to be admissible at trial in Lavoie v. Nova Scotia (Attorney General) (1988), 84 N.S.R. (2d) 387 (S.C., T.D.) [Lavoie No. 2], because, at para. 44:

... [I]t would have been impractical in the extreme to have every single eligible citizen come and testify before the Court.  Furthermore, the nature of the issues, as recognized by counsel at the trial, mandates the consideration of hearsay evidence as the foundation of surveys. ...

[19]         On the other hand, in Yellowknife, the results of a student survey were held to be inadmissible. Surveys are not inadmissible per se, but admissible when they are a necessary means of collecting relevant evidence and conducted in a manner that is likely to result in reliable evidence, and inadmissible when unnecessary or when conducted in a manner that makes the results fundamentally unreliable.

[20]         The petitioners and the CSF argue that some of the evidence tendered by the petitioners that might be considered to be hearsay is admissible as an admission by another party.  I accept the argument of the Minister that the CSF is generally not adverse to the petitioners in these proceedings. The evidence of the CSF is therefore not admissible through hearsay in the affidavits of the petitioners as admissions of an adverse party.  Similarly, admissions by the petitioners are not admissible through the hearsay evidence of the CSF. 

2.               Relevance

[21]         Issues of relevance have arisen in part as a result of the Order determining that the sufficiency of the facilities would be considered before any other matters.  As noted above, the intent of that order was to avoid embroiling the petitioners in a contest with respect to responsibility for perceived deficiencies.  So, for example, the question of whether the CSF could have established a primary school at another site but chose to direct its resources toward other needs is irrelevant to the inquiry before me. 

[22]         In objecting to the affidavit evidence, counsel for the Minister errs in taking the position that all evidence with respect to past problems or the development of the present situation is irrelevant.  That is not the case.  If a parent says that she withdrew her children from school two years ago because it took too long to get to the school on the bus, that is not evidence of a current inadequacy, but it is evidence that transportation time of a certain duration is a factor that has, in fact, led rights-holders to remove their children from the school.  It is evidence of the point at which accessibility becomes an obstacle to enjoyment of the constitutional right.  In light of the Minister’s objection to hearsay evidence from the administrators with respect to reasons parents have given for withdrawal of their children, any evidence of parental motives, past or present, for enrollment decisions must come from parents.  That evidence can shed light upon the criteria that are important in ensuring access to the constitutional rights of the rights-holders. 

[23]         Further, the fact that Rose-des-vents shares a common connected structure with l’école secondaire Jules Verne (“Jules Verne”), the period for which the arrangement has existed and the extent to which it is likely to continue are all factors that must be weighed in determining whether the present facilities are adequate to meet the needs of the rights-holders.  In submissions, counsel says that the Minister regards the Rose-des-vents/Jules Verne site as one institution, whereas the petitioners regard it as two schools.  Evidence with respect to the past, present and continuing relationship between the institutions is admissible in relation to that question.

[24]         The Minister objects to evidence of anticipated demand as irrelevant to the current proceeding.  Given the task that faces the court in assessing the adequacy of the facilities for the rights-holders, it is, in my view, essential that the court address not only current but anticipated demand.

[25]         Having said that, all parties agree that some of the evidence with respect to historical dealings between the parties is irrelevant to the proceedings before me.  It is not in issue that the petitioners have for some time regarded the facilities available to them as inadequate and the Minister continues to take the position that there is no constitutional entitlement to better or other facilities.  There is no need to address the course of dealings between the parties in order to determine how they come to the court, whether judicial intervention is necessary and, if so, what relief ought to be granted.

3.               Opinion Evidence

[26]         The Minister objects to the admissibility of opinion evidence in the affidavits.  I address that objection by taking the approach described in British Columbia (Director of Civil Forfeiture) v. Angel Acres Recreation and Festival Property Ltd., 2009 BCSC 322 at paras. 140-141, where Davies J. held:

It is "[a] basic tenet of our law ... that the usual witness may not give opinion evidence, but testify only to facts within his knowledge, observation and experience": R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 49.

There are, however, two very significant exceptions to that basic rule of evidence.  The first is the expert opinion exception, where an expert may give an opinion based on any combination of facts personally observed and those observed by others: R. v. Lavallee, [1990] 1 S.C.R. 852, 55 C.C.C. (3d) 97.  The second is the "lay opinion" exception articulated in R. v. Graat, [1982] 2 S.C.R. 819, 2 C.C.C. (3d) 365 at para. 49.

[27]         In my view, almost all the Minister’s objections to opinion evidence are without foundation.  Most of the opinion evidence to which the Minister objects is evidence of observations of the deponent that are summarized, as observations often are, with adjectives commonly used and understood.  Opinion evidence is not admissible if it usurps the court’s function, but conclusions drawn from observations that lay people make in everyday life are admissible.  In R. v. Graat, [1982] 2 S.C.R. 819 at 835, the Supreme Court of Canada held that lay opinion with respect to the condition of things, whether, for example, they are worn, shabby, used or new is admissible.  So, in the case at bar, the evidence of lay witnesses that buildings appear to be well-maintained is admissible as evidence the buildings do not appear to be dirty or in a condition of disrepair.  Evidence that a school does not appear to be crowded is admissible as evidence that the number of students and teachers is low in comparison with the available space.  It is unnecessary for a lay person swearing an affidavit to measure the available area observed and count the number of persons present.  That is particularly the case where the lay person is saying that one facility is less crowded than another.  In this case, parents who have had children attending both Rose-des-vents and another school can testify that one school or the other is less crowded.  Similarly, I will receive their evidence that one school is better-maintained or has a larger school yard, or even appears to be more beautiful than another. 

[28]         The petitioners say rights-holders have been unhappy with the state of facilities and arrangements for transportation and for that reason some have withdrawn their children from the school.  The Minister says the petitioners must show both that the facilities are inadequate and that such inadequacy adversely affects the quality of the education offered at Rose-des-vents.  The parents say they must show that the facilities are inadequate to put the Francophone school on an equal footing with the majority-language schools.  They do not accept that it lies upon them to address academic outcomes.  What is of foremost importance to the petitioners is enrollment.  The parents’ subjective assessment of the quality of facilities at Rose-des-vents in comparison with competing schools may inform their decisions whether to avail themselves of their constitutional rights and, thus, contribute to or reduce assimilation.  Subjective assessments of the quality of the facilities offered at Rose-des-vents and other schools are relevant to that question and admissible evidence.

4.               Argument

[29]         The objection to passages that are said to be argument is, in this case, rarely well-founded.  It is occasionally helpful to have summary paragraphs in lengthy affidavits describing the purpose for which evidence is being led so as to appreciate the evidence in context.  It is occasionally necessary to refer to the evidence of other affiants so as to explain why it is not being repeated.  There are passages in the affidavits of all parties that may be regarded as argument, but few of them, in my view, are so argumentative that they should be struck. 

5.               Evidence Lacking Foundation

[30]         There is one common statement in the petitioners’ affidavits and those of the CSF that appears to be made without foundation.  Most affiants, after describing an inadequacy in the facility at Rose-des-vents, make the bald statement that no such inadequacies affect the Anglophone schools of the VSB.  In some cases, the affiants have some experience or personal familiarity with the Anglophone schools.  In those cases, they may have described sufficient contact with the Anglophone schools to be in a position to say that schools with which they are familiar do not have the inadequacies attributed to Rose-des-vents.  Where the teachers depose to no familiarity with the Anglophone schools of the VSB, those statements are made without foundation and are inadmissible.

[31]         The remaining objections to statements founded upon the view they are made without foundation are unjustified.  For example, in the affidavit of Luc Morin dated May 13, 2010, at para. 37, he states:

... [I]t appears obvious from a map containing Vancouver elementary schools that almost all VSB students live within one kilometre of an English language primary school, and can therefore walk to school.  I have attached to this affidavit as Exhibit “E” a copy of a map that contains Vancouver schools.

[32]         According to the Minister, that evidence is an assertion made without foundation.  However, the exhibit illustrates the location of the schools and appears clearly to be foundation for the statement that almost all VSB students live within one kilometre of an Anglophone primary school, simply because no VSB schools appear to be more than two kilometres apart.  The statement that its students can therefore walk to school is an inference than can fairly be drawn from the maps. 

6.               Conclusion

[33]         In weighing the objections founded on relevance, opinion and argument, I seek to ensure that no reliable and cogent evidence is ignored.  Admitting evidence liberally will not work an injustice in this case.  This is not a case where there are serious credibility issues.  No significant effort has been made to contradict or impeach the testimony of any deponents.  Prior to the hearing of the petition, the parties conducted such examinations of affiants under oath as they considered necessary.  The affidavits of all parties contain similar statements of opinion; passages that might be regarded as argumentative; evidence that relates to responsibility for the alleged shortcomings of the facilities; and remedial efforts to address inadequacies. 

[34]         In summary, I am of the view that there is little in the affidavit evidence that ought to be redacted from the record.  I have before me sufficient evidence constituting the factual matrix upon which this judgment may be rendered.

II.               EVIDENCE

A.              Affidavits of the Petitioners and the CSF

[35]         The CSF did not dispute the petitioners’ allegation that the facilities at Rose-des-vents are inadequate to meet the needs of the current and reasonably anticipated enrolment.  The petitioners’ case is founded in part upon evidence led by the CSF and I therefore summarize the evidence of the petitioners and the CSF collectively.

[36]         The record includes affidavits sworn by a number of administrators: the superintendent, deputy superintendent and secretary treasurer of the CSF, the present and former principals and vice principals of Rose-des-vents and Jules Verne, the CSF District Principal of Special Education, the coordinator of the Early Childhood Education Network, the president of the board of the daycare (L’île aux enfants), and the president of the before-and-after-school program (Les Copains).

[37]         Affidavits have been sworn by many present and former teachers, the librarian, and the school secretary.

[38]         Affidavits have been sworn by parents who currently have children at Rose-des-vents, parents who have formerly had children at the school but have withdrawn them, and rights-holders who have chosen not to enrol their children at Rose-des-vents.

[39]         Affidavits have also been sworn by experts and individuals who have researched specific issues.  Angeline Martel inspected 36 VSB Anglophone elementary schools on February 15-16, 2012, and described their characteristics in comparison with Rose-des-vents.  Dr. Rodrigue Landry is a specialist in educational psychology and education.  He addressed the question of assimilation of the Francophone minority in Vancouver and estimated the number of rights-holders in the relevant catchment area.  Kelly Grittner is an experienced transportation analyst.  

[40]         In addition, the petitioners and the CSF led the evidence of Ms. Shannie Harvey, who visited 24 Anglophone schools in the catchment area in May 2012, with the intention of describing important points of comparison; Dr. Nicholas Kenny, a historian who provided evidence of the historical context in which the petition is brought; Marie-Andrée Asselin, the executive director of the Féderation des parents; and Claudiu Bogdan Chifan, the maintenance manager who measured the size of the 15 classrooms in the Rose-des-vents building.  

1.               Numbers

[41]         The petitioners say the number of rights-holders in the catchment area cannot be accurately determined.  Statistics Canada data is used by Dr. Landry to conclude that within the catchment area there are probably 710 elementary aged children whose parents are Canadian citizens whose first language learned and still understood is French.  This is a reasonably accurate estimate of the number of children of rights-holders as defined under s. 23(1)(a) of the Charter.  Statistics Canada does not have data on individuals in the catchment area who have received their primary school instruction in French in Canada, or the number of children of Canadian citizens who have siblings who have received or are receiving primary or secondary school instruction in French in Canada.  Dr. Landry says that such rights-holders will amount to some portion of the 2,195 children of Canadian citizens living in English-speaking households who reported they had some knowledge of French.  The census indicates there are 320 elementary school age children who speak French regularly at home whose parents are Canadian citizens with a mother language other than French.  The majority of children who speak French at home in Vancouver with non-Francophone parents must be French immersion students.  On the whole, in my view, the evidence supports the view that the population from which Rose-des-vents must draw its students is at least 710 but is unlikely to exceed 1,000.

[42]         The enrollment at Rose-des-vents grew from 21 students in 1997 to 344 in 2011.  Its enrollment continues to grow.  Similarly, the enrollment at the secondary school, Jules Verne, is growing.  It grew from 161 in 2008-09, steadily, to 244 in 2011-2012.  Given the growing population at Rose-des-vents, it is likely that the secondary school enrolment will continue to grow.  That growing enrolment, as noted below, will have some impact upon the space available for Rose-des-vents students.

[43]         There is some evidence that rights-holders have been discouraged from enrolling their children at Rose-des-vents as a result of the state of its facilities and the long bus ride that some students must take to get there.  There is also some evidence that when a new facility is built, it will attract and retain additional students.  That was the experience at école Brodeur in Victoria, école André Piolat in North Vancouver, and école Anne Hébert in Vancouver.  Rose-des-vents is projected to grow to 360 students by 2012-2013.  The petitioners say that if the catchment area in question were divided into two zones, there would remain a sufficient number of students in each zone to justify the establishment of two elementary schools.  They say there are several VSB schools west of Main Street with a population between 75-250 students.

2.               The Rose-des-vents Facilities

a)               The Shared Facility

[44]         The petitioners say the facilities afforded to elementary students in Vancouver are inadequate because they require the elementary students to share a facility with the secondary school.  The CSF is not opposed in principle to the establishment of shared K-12 facilities, and in fact is seeking to build more such facilities, but it says that they only work well if they are purpose-built facilities, permitting the elementary and secondary students to work on different schedules, use separate washrooms, and avoid the complete integration that has given rise to the problems described in the material. 

[45]         Rose-des-vents was established at the Baillie Street site in 2001.  Jules Verne was constructed from March 2007 to December 2008.  It shares a common site with and is structurally attached to Rose-des-vents.  Sharing of the facilities between the secondary and elementary school on the site was not contemplated when Jules Verne was planned and built.  It was anticipated that Rose-des-vents would move to another site on completion of Jules Verne.  The current configuration sees significant contact between elementary and secondary school students.  Grade 4, 5 and 6 students occupy four classrooms in the Jules Verne side of the building.  They share the secondary school’s washroom, workshop and music room.  The secondary school must be traversed by elementary students seeking to use the shared facilities, particularly the gymnasium.  Some parents have objected to the close interaction between elementary and secondary students, particularly in washrooms.  The parents and in some cases teachers of the elementary school students feel that they are in an inferior position when it comes to negotiating the shared use of facilities.

b)               Limited Space

[46]         Rose-des-vents has a nominal capacity (defined as: number of kindergarten classes x 20 students + number of elementary school classes x 25 students) of 215 and an operating capacity (defined as: number of classrooms x legislated maximum enrolment per grade level) of 199 students.  Enrollment is currently 344 students. School enrollment is growing and weighted in favour of the lower grades.  The current kindergarten class is the largest ever.  Rose-des-vent uses four classrooms in the Jules Verne building and two modular classrooms.  One modular is used as a music room.  There are two portable classrooms on the site.  They are described as old, smelly, and uncomfortable.  One portable classroom is used for special education.  The other will be used as a classroom this year despite the principal’s preference not to place students there for a full day.  

[47]         The operating and nominal capacity do not take into account temporary space in portables and modular classrooms on temporary permits.  There is evidence that Jules Verne will need two more classrooms this year and its population is growing.  There is said to be no additional space in the Jules Verne building. 

[48]         The daycare programme at the school, L’île aux enfants, has a very limited capacity due to space constraints.  It can accept four children under 36 months of age, and eight children between 3 and 5 years of age.  There are ninety names on the wait list for that daycare.  Of the 344 students at Rose-des-vents, over 100 use the Les Copains after school program.  That programme is situated in the school gymnasium.  There is a waiting list for the program. 

[49]         Because of the space pressure of the building, the CSF has now made arrangements to rent the basement of the Oakridge Seventh Day Adventist Church across Baillie Street from Rose-des-vents as additional classroom space for secondary school students.

[50]         The pre-school and daycare program are regarded by the CSF and the parents’ association as essential for the success of the Francophone education system.  The pre-school acts as a feeder for the elementary school.  The after-school program is said to play an important role in the building of a community and making attendance at the school attractive and possible for parents who live some distance from the school.  Of the students who finish the French pre-school program, over 80% enter the CSF program.

[51]         The Rose-des-vents portion of the conjoined buildings is said to be small.  Hallways are narrow.  There are no coat hooks and no room for lockers.  There is a lack of storage space.  That is said to have contributed to the spread of lice in students on occasions when that affliction strikes.  The maintenance manager has measured the 15 classrooms in the Rose-des-vents building.  They range in size from 36.6 square meters to 87.2 metres.  Six of the classrooms are less than 60 m2.  The recommended standard area for classrooms, according to the Ministry of Education standards, is 75 m2.  Only three classrooms meet that standard.  

c)               Renovation of the Activity Room

[52]         Three classrooms, E109, 110 and 112, were created by division of the activity room in the Rose-des-vents building.  Two of these classrooms have no outside windows. The teachers who work in these classrooms describe them as crowded.  Noise can be heard through the walls of the classrooms.  The acoustics are poor.  There is a shortage of electrical outlets.  The students in third grade class in Room 110 must exit the building and enter through an exterior door to go to the washroom.  It does not have access to an interior hallway.  

d)               The Library

[53]         The library is described as small and inadequate.  There are few seating or work areas.  It is smaller than a classroom; it occupies 57.1 m2.  The librarian says the school should have a library of 110 m2.  Size constraints limit the number of books that can be kept on hand and prevent students from doing research in groups or studying research methods in the library.

e)               The Gymnasium

[54]         A large new gymnasium constructed as part of the Jules Verne building is shared by the elementary and secondary students.  The gymnasium can be divided by a curtain into sections.  Because the gymnasium is used for the after school program, it is not available to elementary students for extracurricular sports.  There are conflicts between elementary and secondary school uses.  The teachers complain that access to the gymnasium is limited.  The purposes for which it can be used are also limited because the secondary school will not permit it to be used for activities, such as book fairs, that might adversely affect the gym’s floor surface. 

f)                Washrooms

[55]         There are an inadequate number of washrooms in the school.  There are nine bathroom stalls and two urinals in the Rose-des-vents side of the structure.  There are frequent line-ups for the washrooms.  There are no washrooms in the portable or the modular structures.  Elementary school students in the Jules Verne classrooms share washrooms with secondary school students in that portion of the joined buildings.  Parents and teachers are concerned that young students are thereby exposed to inappropriate conduct and language.

g)               Exterior Space

[56]         The exterior playing space has been impinged upon by the presence of portable and modular structures.  The outdoor play space is divided into three small areas.  There is no field area that can accommodate soccer or baseball games.  Recess has been taken in shifts.  Arrangements have been made to use a neighbouring park, but because it is across the street additional supervision is required during its use.  Excluding the newly rented space in the adjacent park, the playing field area does not meet Ministry standards of one hectare for a school of this size. 

3.               Evidence of Insufficiency in Fact

[57]         There have been parents who have decided not to enroll their children after looking at the facilities.  The Minister acknowledges that Rose-des-vents is operating “over capacity”.  Pascale-Sara Frenette is a rights-holder who deposes that she has enrolled her child in a VSB school because of perceived deficiencies in the Rose-des-vents building, specifically narrow hallways, a disorganized layout, noisy classrooms, a tiny library, and limited outdoor space.  Paul Rostagno is a rights-holder who withdrew his children from Rose-des-vents because he was unhappy with the cramped facilities.  Steven Fedder is a rights-holder who removed his daughters from Rose-des-vents because the school was “too integrated” with the secondary school.  Similarly, Bernie Hadley-Beauregard is a rights-holder who withdrew his children from Rose-des-vents because of problems associated with the close integration of the primary and secondary school students.  Nadine Cahan is a rights-holder who withdrew her children this year because Rose-des-vents is overcrowded and its facilities are inadequate. 

4.               Comparable Majority Language Facilities

[58]         I place no weight upon the evidence of witnesses who deposed that “to the best of their knowledge” majority language schools in Vancouver do not have the problems and restrictions they describe at Rose-des-vents.  That evidence is of no value without a description of their familiarity with the Anglophone schools and the basis for their comparison.

[59]         On the other hand, there is a substantial record describing the VSB elementary schools in the catchment area.  Almost without exception, the Anglophone schools are described as more attractive and aesthetically pleasing, larger and more functional than Rose-des-vents.  All except one are said to have ample playgrounds.  Most have large libraries.  Most have classrooms that can be used for multiple or flexible purposes.  Almost all schools have larger hallways and many have lockers in the hallways.  Almost all have classrooms that are described as more spacious than those afforded to the Rose-des-vents students.  Those that have small classrooms, such as Dr. Annie B. Jamieson School, have multipurpose rooms or spare classrooms and large libraries.

[60]         No VSB elementary schools, however, are said to have a gymnasium larger than the half gymnasium that is available to Rose-des-vents students. 

[61]         Although counsel for the Minister took exception to the description of some schools as “imposing” and some facilities as “grandiose” or “convivial, aesthetically pleasing and inviting”, there was no challenge generally to the evidence that as a rule the Anglophone schools in the catchment area are larger, with larger classrooms, larger and better playing fields, and more spacious libraries.  First person comparisons of some of the schools were made by Angeline Martel, Shannie Harvey, Michele Marsan, Stéphane Lebhian, Rejean Gosselin, Steven Fedder, Isabeau Iqbal, Luc Morin, Marie-Christing Pelletier, and Nadine Cahan. 

5.               Transportation & Accessibility

[62]         The transportation for the CSF in Vancouver is provided by a contractor, Thirdwave.  The contractor’s services are purchased and supervised by Ms. Grittner, the CSF’s transportation consultant.  Of the 344 students at Rose-des-vents, 293 are transported to school by bus.  None of those students live within the one kilometer walk limit.  There are 16 bus routes.  Last year the longest one way trip took 48 minutes.  This year the longest ride is the 45 minute ride of a grade 1 student.  That time does not include waiting times at the designated pick up points or the walk from home to the bus stop.  A large majority (67%) of the students spend over 30 minutes per bus trip.  Because the elementary and secondary schools run on different schedules, but the bus serves both schools, elementary students must wait for the end of the secondary school day and leave school 20 minutes after their classes end, lengthening their time away from home. Most VSB students live within one kilometre of their schools. 

[63]         There is evidence that long transportation times have affected enrolment at Rose-des-vents.  Paul Rostagno withdrew his children from Rose-des-vents in part because he was unhappy with the long bus rides to school.  Steven Fedder removed his daughters from Rose-des-vents after three years because transportation was too onerous.  Isabeau Iqbal removed her daughter from Rose-des-vents after three years because of long bus rides.  Marie-Christine Pelletier withdrew her two children from Rose-des-vents after a year because their bus ride, taking 60 minutes each way, was too long.  Quynh Doan and Phillippe Le Billon are rights-holders who did not enroll their children in Rose-des-vents because the bus ride would have been too long for them.  Luce Lafontaine is a rights-holder who is considering withdrawing her son from the school because of a bus ride that takes one hour each way.  Pascale de Kerckhove is a rights-holder who says that her children have to be at the bus stop 65 minutes before the start of the scheduled school day.

B.              Affidavits of the Minister of Education

[64]         The Minister has led the affidavit evidence of the Assistant Deputy Minister of the Resource Management Branch of the Ministry of Education (with respect to educational standards and the extent to which Rose-des-vents meets those standards); the chief information officer of the Ministry of Education; the manager of capital information and data; a planning officer with the Capital Management Branch of the Ministry of Education, and the Manager of the Learning Division of the Ministry of Education; and Susan Anson, the General Manager of VFA Canada, a capital asset manager (with respect to the VFA assessment of the Ministry’s public education facilities).

[65]         The Minister has also led the evidence of a number of superintendents of school districts in the Province, the Deputy Superintendent of schools for the VSB, and the secretary treasurer of the Surrey School District.

[66]         Keith Miller, Assistant Deputy Minister of the Resource Management Branch, provides the court with valuable statistical information with respect to the resources available to the CSF and the facilities afforded to the students at Rose-des-vents.  The CSF is one of six (out of more than sixty) school districts experiencing growth in its enrolment.  Mr. Miller calculates Rose-des-vents’ capacity utilization at 154.4%.  Taking into account modifications to the multi-use activity room and the classrooms used in Jules Verne, capacity utilization decreases to 112.3%.  Jules Verne is said to have capacity utilization of 70%.  That assessment of capacity utilization assumes that classes now used for daycare or pre-school uses are available as classrooms. It therefore understates actual capacity utilization.

[67]         According to Mr. Miller, 38 of the 119 VSB facilities had capacity utilization over 100%.  Twenty-seven had a capacity enrolment over 110%, and three were over 150% (one of those, l’école Bilingue, had 432 students in a school with an operating capacity of 232; Sir James Douglas Annex had 133 students in a school with an operational capacity of 88; and Tyee Elementary had 178 students in a school with an operational capacity of 93).  Two of the relatively overcrowded schools were, therefore, small annexes.  The average utilization rate of VSB schools was 87.7%.  It is of note that this estimate of capacity utilization is insensitive to classroom size or shape.  Capacity utilization is not a description of the space available per student. 

[68]         Ken Frith, the manager of capital information and data of the Ministry of Education, and Susan Anson, the General Manager of VFA Canada, describe the Province’s use of a facility condition index (FCI) to assess the state of repair of Ministry-owned facilities.  The FCI is the ratio between anticipated repair costs and the total capital value of the structure surveyed.  Schools with a high FCI require more significant capital expenditures than schools with a low FCI.  The FCI survey is conducted by a mechanical engineer, an electrical engineer, and a structural engineer.  The FCI is therefore a useful measure of the structural condition of the facilities.  It does not assess their fitness for educational purposes.  The average FCI of elementary schools in Vancouver in January 2012 was 0.42.  The FCI for Rose-des-vents was 0.35.  It is less in need of repair than the average Vancouver elementary school.

[69]         Brent Munroe, Manager of the Learning Division of the Ministry of Education, deposes to information in the hands of the Ministry with respect to average class sizes, academic achievement, and student and parent satisfaction surveys.  The data establishes that class sizes (number of students per classroom, not classroom dimensions) at Rose-des-vents are within the average of elementary schools in Vancouver (although on the high side); academic performance is comparable to performance at Dr. Annie B. Jamieson, the nearest VSB school (although that is the only Mandarin immersion school in the VSB and, like most immersion schools, may be said to attract a highly motivated students); parental satisfaction with learning at Rose-des-vents is generally good but has diminished annually since 2006.  Satisfaction with participation in activities outside of school is low (25%).  A large proportion of respondents (82%) sought more arts, sports and athletics programs in school.  In general, according to the survey results, parents at Rose-des-vents were about as satisfied with their children’s academic programs as were parents at Dr. Annie B. Jamieson.

[70]         Jordan Tinney is the Deputy Superintendant of schools for the VSB.  He describes the instruction and facilities afforded to the 29,000 elementary school children in the district.  Like Mr. Miller, he speaks to capacity utilization. His figures are similar but not identical.  He says thirty schools are over 100% capacity.  Nine have a capacity utilization of over 110%.  The school with the highest enrolment over capacity is l’école Bilingue.  Overcrowding generally is most significant in French immersion schools.  There is apparently strong demand for French-language education.

[71]         Mr. Tinney described structural concerns of the VSB with respect to the VSB schools.  There are serious concerns with respect to seismic and air quality issues.  The board has concerns with respect to asbestos, lead and other contaminants on school property.  Mr. Tinney, like Mr. Frith, says there is a significant need for structural work at VSB schools. 

[72]         It is Mr. Tinney’s evidence that it is not uncommon for schools to have a split gymnasium.  None of the 17 annex schools have gymnasiums.  Because they are usually schools for children in the early elementary grades, they have activity rooms.  Mr. Tinney says VSB schools are generally not closed when enrollment declines, but are kept open as long as possible because it is recognized that they are the heart and soul of the community.

[73]         Wayne Noye is the secretary treasurer of the Surrey School District.  It is a very fast growing district that operates 100 elementary schools with over 38,000 students.  There is significant overcrowding in some schools.  Typically elementary schools in Surrey do not have specialized classrooms.  Specialized courses and programs are accommodated in portables.  Only where space is available is it rented to pre-schools or daycares.  Gymnasiums are often shared, and 25 elementary schools have no playing fields and lease city playing fields.  

[74]         According to Mr. Tinney and Mr. Noye few students in the Lower Mainland are transported by bus to school.

[75]         The Minister has adduced the evidence of a number of superintendents of rural school districts.  Theresa Downs is the superintendant of the Gold Trail School District.  It is a rural district with declining population.  Some students in the district travel for more than an hour to get to school.  The district operates two K-12 schools, only one of which was purpose -built for that role.  Larry Espe is the superintendant of schools for the Peace River North School District.  It is also a rural district, serving over 5,000 students.  It operates three two-room rural schools and four K-12 schools.  Interaction between students at those schools is “endorsed and encouraged”.  All of its in-town schools are crowded.  None have what he considers to be adequate gymnasium space.  All the schools are described as “the absolute hub of their respective communities”.  Jeff Hopkins is the superintendant of schools for the Gulf Islands School District.  It operates eleven schools, three of which are elementary schools and five of which are K-12 schools.  Because of very long travel times between the Gulf Islands, the school has a modified week offering classes four days per week.  The K‑12 programme is described as “positive and well received”. Nancy Wells is the superintendant of Coast Mountain School District, centred in Terrace.  It is roughly the size of Finland and has 5,500 students in 22 schools, one of which, the 79 student Bear Valley School in Stewart, is a K-12 school.  Transportation throughout the district is problematic.

[76]         In addition to relying upon that evidence, the Minister adduced the evidence produced by the CSF that it has sought to build new K-12 schools. The CSF’s  transportation policy seeks to limit transportation times to 45 minutes in each direction, suggesting that travel times up to 45 minus are acceptable. The CSF acknowledges there is no concern with respect to the quality of instruction at its schools.  It has remedied some of the concerns with respect to school and play space at Rose-des-vents by receiving three modular units in the 2011-2012 school year, and by leasing the adjacent park space at Oak Street and 37th Avenue.

III.             APPLICABLE LAW

[77]         The remedial nature of s. 23 of the Charter has been clearly identified since its earliest consideration by the Supreme Court of Canada in Quebec (Attorney General) v. Quebec Assn. of Protestant School Boards, [1984] 2 S.C.R. 66.  The Court there held, at 79:

... Rightly or wrongly,--and it is not for the courts to decide,--the framers of the Constitution manifestly regarded as inadequate some-- and perhaps all--of the regimes in force at the time the Charter was enacted, and their intention was to remedy the perceived defects of these regimes by uniform corrective measures, namely those contained in s. 23 of the Charter, which were at the same time given the status of a constitutional guarantee. ...

[78]         The judicial description of the substance of the rights afforded to individuals by s. 23 was developed in Marchand v. Simcoe County Board of Education et al. (1986), 55 O.R. (2d) 638 (H.C.J.) [Marchand No. 1] and (1987), 61 O.R. (2d) 651 (H.C.J.) by Sirois J.  The plaintiff sought a declaration that the number of children in or near Penetanguishene was sufficient to warrant the provision of French-language instruction and facilities out of public funds, and a mandatory order requiring the local school board to provide facilities and funding necessary to achieve an equivalent level of instruction to that afforded to Anglophone secondary students.  The proceedings there, like those before me, were commenced with a view to obtaining a declaration that the facilities provided to the minority rights-holders were not equivalent to those afforded to the majority, and a declaration that their numbers warranted better facilities. The facilities were said to be inadequate because of the absence of shops classes, an inadequate gymnasium and poor science facilities.  The court received evidence from educators regarding the effect of the inadequate facilities on enrolment at the school, and the fact that parents had been discouraged from registering their children.  There was no real issue with the numbers.  The court was easily satisfied that the number of potential students was sufficient to justify “at least one first class high school facility” (at 654).  The Board of Education acknowledged the minority’s numbers clearly warranted some facility--there was an existing school--but argued they did not warrant the specific programs under consideration.  In response to that argument, Sirois J. held, at 655:

... If the framers of that Charter had meant that at each turn the minority should meet another numbers test they would have said so.  In s. 23 they mentioned only a test for para. (a) instruction and para. (b) facilities ....   [Italics in original.]

[79]         The court went on to note that “the quality of the education of the minority must be equal to the majority” (at 655), citing the decision of the Ontario Court of Appeal in Reference re Education Act of Ontario and Minority Language Education Rights (1984), 47 O.R. (2d) 1 at 43 [Reference re Education Act of Ontario], as follows:

... The rights conferred by this section with respect to minority language facilities impose a duty on the Legislature to provide for educational facilities which, viewed objectively, can be said to be of or appertain to the linguistic minority in that they can be regarded as part and parcel of the minority's social and cultural fabric.  The quality of education to be provided to the minority is to be on a basis of equality with the majority.

[80]         After reviewing the case law, the court held, at 660:

From the clear language of those ... cases the plaintiff is entitled to be provided out of public funds for an education in French to his children.  That means the same education as is given the majority but in the other official language.  This is to be a full and complete education not a limited, partial or truncated one, which necessarily would be an inferior education, a second class one.

The costs of education to the majority is a relevant factor too, but not to a lesser extent nor a greater extent than for the minority.  It is equally a limiting factor for both groups.

As long as the education provided to the minority is equivalent to that provided to the majority, then the constitutional rights of the minority can be said to have been respected.

[Italics in original.]

[81]         Means of addressing s. 23 claims were elaborated upon in Lavoie v. Nova Scotia (Attorney General) (1988), 84 N.S.R. (2d) 387 (S.C., T.D.) [Lavoie No. 1]; Lavoie No. 2; and (1989), 91 N.S.R. (2d) 184 (C.A.).  In the first of these decisions, the learned trial judge found the evidence to be inadequate to permit him to determine whether the number of children in the relevant area warranted instruction or facilities.  The court ordered the collection of further data.

[82]         When the case returned to the court later that year, it was as a challenge to the designation of a location for a minority Francophone school.  The parents contended that very young children would have to make long bus rides to attend school  (a complaint similar to that before me) and they were unwilling to have their  elementary school children mix with secondary school children (again, a similar complaint to that made by the petitioners).  The court granted a declaration that the site chosen was inappropriate on the following basis, at paras. 37-39:

Sending elementary school children on bus trips of thirty to forty-five minutes each way, when it is not necessary, is unreasonable if appropriate priorities are kept in mind.  The priority that cannot be swept under the rug is the right of Canadian citizens in the minority language group to have their children instructed in their own language if numbers warrant the provision of such instruction and facilities.

A facility for elementary school children cannot be considered to be reasonably accessible if it is located miles away from the main geographic area where the majority of the students who would be attending the school live if there are facilities available in the vicinity of the students' residences.  ...

It is implicit in the s. 23 Charter right that a facility for minority language instruction be reasonably accessible. ...

[83]         When the case came before the Nova Scotia Court of Appeal in 1989, the court had before it a specific proposal for an elementary school at a particular location and evidence that enrolment would be low at that location.  The court described the role of government in relation to the provision of minority language education in the following terms, at para. 38, quoting favourably from the Ontario Court of Appeal in Reference re Education Act of Ontario:

The discretion that may be exercised pursuant to its (Charter) provisions is limited to one issue: looked at objectively, is the number of children of qualified parents sufficient to warrant the establishment of French language instruction or facilities?

[84]         The issue raises two questions: whether the numbers are sufficient to warrant instruction, and whether they are sufficient to warrant facilities.  The court noted the test to be met in addressing the second question is more onerous than that under the first, and held that, when looked at objectively, 50 children of qualified parents is a number sufficient to warrant the provision of instruction, but not facilities. 

[85]         Numerous cases before and since have established that the “numbers warrant” test cannot be reduced to a formula.  The instruction or facilities that may be warranted by a certain number of students is dictated, first, by pedagogical considerations, and second, by costs.  In most cases, pedagogical considerations, rather than costs, will dictate minimum class and school sizes. 

[86]         Minority language rights were comprehensively considered by the Supreme Court of Canada in Mahe v. Alberta, [1990] 1 S.C.R. 342 [Mahe].  The issue at stake in that case was the extent to which s. 23 confers upon minority communities the right to manage and control their own instruction and facilities.  Mahe, as the first consideration of s. 23 in detail by the Supreme Court of Canada, established basic principles of interpretation that have coloured the subsequent consideration of the Charter guarantee of minority-language education rights.  In Mahe, s. 23 was described as a lynchpin of this nation’s commitment to the values of bilingualism and biculturalism.  The purpose of s. 23 was held to be the preservation and promotion of the two official languages of Canada and their respective cultures.  Its remedial purpose is to correct the progressive erosion of minority official language groups.  It establishes a right measured by a sliding scale, described in the following terms, at 366:

... 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.

[87]         Language rights guaranteed by the Charter stand alone.  In Mahe, it was held it was not necessary to read s. 23 together with s. 15 or s. 27 of the Charter because, as the Court stated, at 369:

... Section 23 provides a comprehensive code for minority language educational rights; it has its own internal qualifications and its own method of internal balancing. ...  

[88]         The reference point to fix on the sliding scale the nature of instruction and facilities that must be provided to fulfil the guarantee enshrined in s. 23 is normally the number of students actually receiving minority language education in the area in question.  However, the Court in Mahe recognized that where minority language schools are being established, governments should project likely attendance.  When doing so they should give consideration to those factors that would equally be considered in relation to the start up of majority language schools, including the fact that the establishment of a new facility will ordinarily produce increased demand for the instruction it provides.  Dickson C.J.C. stated, at 384:

... [T]he relevant figure for s. 23 purposes is the number of persons who will eventually take advantage of the contemplated programme or facility.  It will normally be impossible to know this figure exactly, yet it can be roughly estimated by considering the parameters within which it must fall....

[89]         The inquiry into the nature of the facilities warranted by the number of minority language students must be informed by the purpose of s. 23, which is to establish minority language education as a bulwark against assimilation.  The Supreme Court of Canada in Mahe clearly noted that the Charter is not intended to preserve the status quo.  I bear that in mind in addressing the argument made by the Minister in the case at bar that the first inquiry ought to be whether existing facilities are satisfactory to serve the students who are now enrolled. 

[90]         The interpretive principles described in Mahe were restated by the Supreme Court of Canada in Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839 [Reference re Public Schools Act (Man.)].  In that case, Lamer C.J.C., writing for the Court, described them as follows:

1.               First, courts should take a purposive approach to the application of s. 23;

2.               Second, the rights guaranteed by s. 23 should be considered to have a remedial intention;

3.               Third, language rights should be recognized as a fundamentally different class of rights, created by political compromise and fundamental to the national character.  Because they are created by a political compromise, their nature has been defined by the Charter, and the court should be cautious not to read into or read out of the Charter rights which are not there described, but should breathe life into those rights which are created by s. 23;

4.               Fourth, the language rights described in the Charter do not create a right to a particular legislative scheme, but a right to a type of educational system. 

[91]         Two principles underlined in the Reference re Public Schools Act (Man.) case are particularly noteworthy in the case at bar.  First, the Court emphasized the importance of looking at the number of students who will eventually take advantage of the contemplated program when setting the case on the “sliding scale”.  Second, the Court underlined that minority language rights are granted to parents individually and the entitlement is not subject to the will of the majority among the group of rights-holders.  The latter principle is relevant to the Minister’s argument that deference to the CSF should preclude this Court from passing judgment upon the adequacy of the instruction and facilities afforded to the petitioners’ children.

[92]         These principles were tested and applied in Conseil des Écoles Séparéés Catholiques Romaines de Dufferin et Peel v. Ontario (Ministre de l'Éducation et de la Formation) (1996), 30 O.R. (3d) 681 (Div. Ct.), aff’d (1996), 30 O.R. (3d) 686 (C.A.) [Dufferin et Peel].  In that case, a moratorium on new capital projects imposed by the Ontario Ministry of Education was challenged by s. 23 rights-holders.  The plaintiffs there, as here, acted on behalf of all s. 23 rights-holders living within the area in question (the municipality of Peel).  The Ministry of Education acknowledged the facilities available to Francophone students in the municipality were not reasonably equivalent to the facilities provided to Anglophone students but sought to defend the government’s unfettered right to suspend capital expenditures.  The Divisional Court held the financial imperatives that resulted in the Ministry’s moratorium could not stand as a bar to the provision of services guaranteed by s. 23.  In doing so, the court adopted, at 685, the words of Sirois J. from Marchand No. 1 as follows:

The framers must be taken to have intended the natural, normal and foreseeable financial consequence of their agreeing to the new Constitution in late 1981 and its proclamation in force on April 17, 1982.

[93]         Having committed, without reservation, to providing instruction and facilities to minority language students where numbers warrant, governments cannot say limited financial means compel them to avoid that constitutional commitment.  The Court of Appeal upheld the decision of the Divisional Court, at 687:

... Il est évident que l'imposition du moratoire n'a pas le meme impact sur la majorité qu'il a sur la minorité.  La majorité a de nombreuses écoles tandis que la minorité a une partie d'une école qu'elle risque de perdre.  Le moratoire risque d'avoir des effets catastrophiques sur l'avenir de l'école Sainte-Famille et sur l'avenir de la minorité linguistique de Dufferin et de Peel.  D'après les faits qui ne sont pas en dispute, il y a un risque de perte irréparable. ...

(It is apparent that the imposition of the moratorium does not have the same impact upon the majority that it has upon the minority.  The majority has many schools while the minority has part of one school that it stands to lose.  The moratorium may catastrophically affect the future of école Sainte-Famille and the future of the linguistic minority of Dufferin and Peel.  On the undisputed facts, there is a risk of irreparable harm. ...)   [My translation.]

[94]         The decision in that case reflects the view that the perpetuation of the status quo and failure to recognize and give effect to the remedial purpose of s. 23 may cause irreparable harm to linguistic minorities.  That approach to s. 23 is reinforced in the decision of the Supreme Court of Canada in Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3 [Arsenault-Cameron].  The Court again emphasized the remedial intent of the section and underlined that it is not meant to reinforce the status quo but, at para. 31:

... 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. ...

[95]         The Court also restated with approval the method of estimating the number of rights-holders that had been adopted in previous jurisprudence, holding, at para. 32:

... The relevant number is the number who will potentially take advantage of the service, 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....

[96]         The Court held the Prince Edward Island Court of Appeal had erred by looking solely at the actual enrolment or actual demand for the service under consideration, rather than considering the community and the potential advantage to that community of the service under consideration.  There had been a relatively poor assessment of the potential pool of individuals who might take advantage of the instruction sought by the petitioners.  The Supreme Court of Canada noted that the Province could not avoid its constitutional duty to provide instruction and facilities where numbers warrant by relying on insufficient proof of the numbers.  That is especially so where the Province is not prepared to conduct its own studies or to obtain and present cogent evidence of known or potential demand.

[97]         The judgment of the Supreme Court of Prince Edward Island in Arsenault-Cameron [(1997), 147 Nfld. & P.E.I.R. 308], which the Supreme Court of Canada reinstated, is instructive.  The trial court carefully considered the evidence as to how potential enrolment at the school might be measured, and noted that demand for the service would likely increase once the service was established.  In that case, as in the case at bar, there was concern with respect to lengthy bus rides to school. DesRoches J. held, at para. 109:

... Sending very young children on bus trips of up to 50 minutes each way is unreasonable if the priority of ensuring to citizens of Canada the right guaranteed by s. 23 is properly applied. ...

[98]         He further noted, at para. 110:

It is implicit in the s. 23 right that a facility for minority language instruction be at least as accessible as those of the majority language group. ...

[99]         While the comments of DesRoches J. in Arsenault-Cameron with respect to what may be regarded as a reasonable school bus ride cannot be seen as describing the substantive rights established by s. 23 (which must be case-specific) it is noteworthy that no issue was taken at the Supreme Court of Canada with the view that accessibility is an essential aspect of minority language education rights.  Implicit in Arsenault-Cameron, Dufferin et Peel and Mahe is the view that the level of instruction and facilities afforded to minority language students must be equivalent to the Anglophone facilities available to students in the same district.  That stands to reason given the remedial purpose of s. 23 of the Charter.  The risk of assimilation will not be reduced by the establishment of instruction or facilities that bear no relationship to the instruction and facilities which might otherwise be selected by the rights-holders for their children.

[100]     Section 23 was again before the Supreme Court of Canada for consideration three years later in Doucet-Boudreau.  At issue before the Court was the retention by the trial judge in that case of a supervisory role to ensure delivery of the instruction and facilities warranted on the evidence before him.  Only that retention of jurisdiction was challenged in the Nova Scotia Court of Appeal, which set aside the trial judge’s order that there be periodic reporting hearings after the initial interim judgment.  The Supreme Court of Canada, at para. 10, gave effect to the views described in dissent at the Court of Appeal by Freeman J.A., who held that retaining jurisdiction to supervise delivery of the services was “of the very essence of the kind of remedy courts are encouraged to seek pursuant to s. 24(1) to give life to Charter rights”.

[101]     The Supreme Court of Canada again underlined the remedial purpose of s. 23, stressing the importance of prompt delivery of the instruction and facilities required by the Constitution, with a view toward avoiding the danger of assimilation posed by the maintenance of the status quo.  After reviewing in detail the principles established in the leading cases, the Court held, at para. 63:

After Mahe, litigation to vindicate minority language education rights has entered a new phase.  The general content of s. 23 in many cases is now largely settled (Mahe, Schools Reference, Arsenault-Cameron, all supra).  In the present case, for example, it was clear to and accepted by the parties from the start that the government was required to provide the homogeneous French-language facilities at issue.  The entitled parents sought the assistance of the court in enforcing the full and prompt vindication of their rights after a lengthy history of government inaction.   [Underlining in original.]

[102]     In Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201, the Supreme Court of Canada revisited the principles of interpretation that must be borne in mind in s. 23 cases.  Noting that s. 23 has been described as the product of political compromise or negotiation, the court affirmed, at para. 20, that s. 23 rights are not to be construed narrowly as a result.  Constitutional protection of minority language rights was held to be necessary for the promotion of robust and vital minority language communities.  Those communities are considered to be essential for Canada to flourish as a bilingual country.  Minority language education rights are the means by which the goals of linguistic and cultural preservation are to be achieved.  The Court held, at para. 5, that claims to s. 23 rights must be considered in context: “Language rights cannot be analysed in the abstract, without regard for the historical context of the recognition thereof or for the concerns that the manner in which they are currently applied is meant to address”.

[103]     For that reason, it is important in this case to bear in mind the historical context of minority French-language education in British Columbia, as described by Vickers in L'Association des Parents Francophones de la Colombie-Britannique v. British Columbia (1996), 27 B.C.L.R. (3d) 83 (S.C.) and (1998), 61 B.C.L.R. (3d) 165 (S.C.).

[104]     I have had the benefit of two recent decisions of the Supreme Court of the Northwest Territories arising from the concurrent trials of actions brought on behalf of Francophone rights-holders in Yellowknife (Yellowknife), and in Hay River (Commission Scolaire Francophone c. Procureur général des Territoires du Nord-Ouest, [2012] N.W.T.J. No. 46 (S.C.) [Hay River]).  These cases came to trial following numerous interlocutory applications and negotiations between the parties with respect to the level of facilities to which the rights-holders were entitled in the communities in question.  To some extent, these cases turn upon the Territorial statute, Loi sur l'Éducation, LTN-O, 1995 c. 28, and the regulations passed pursuant to that legislation, including the regulation establishing the Francophone school board for the Northwest Territories.  For the most part they are determined by the constitutional jurisprudence binding upon me.

[105]     Yellowknife addressed the sufficiency of the existing school, opened in 1999 and subsequently enlarged.  Initially the school had space for a pre-school and daycare, five classrooms and a library.  There were no specialized classrooms for fine arts or sciences or industrial arts, and there was no gymnasium.  The school was enlarged following orders made on interlocutory motions in the action.  Two classrooms were added and the school capacity was increased to 160 students.  At trial, the court heard evidence of the parents’ concerns with respect to the lack of specialized classrooms, the lack of space for physical education and sports, and the effect of the lack of space on extracurricular activities.  The court received the evidence of a long-term teacher at the school that students had left the Francophone program in order to obtain access to a more diversified range of courses and better programs in music and industrial arts, as well as additional gymnasium time and access to sports programs.  Dr. Landry testified with respect to the importance of the school as a centre of the Francophone community.  He spoke to the rate of assimilation in the Northwest Territories and to the number of students that might attend a homogenous Francophone program.

[106]     After reviewing the history of education cases, the court noted, at paras. 551-552:

Le présent recours est différent de certains autres qui ont été entrepris en vertu de l'article 23.  Il ne concerne pas une inaction complète du gouvernement, mais remet plutôt en question la suffisance des mesures qu'il a prises pour se conformer à ses obligations.

En ce qui concerne les infrastructures, le litige ne porte pas sur la question à savoir si une école devrait être construite; l'école existe déjà. La question qui est soulevée est sa conformité aux exigences de l'article 23. ...

(This action is different from certain others that have considered Article 23.  It is not a case where there has been complete inactivity on the part of government, but raises, rather, the question of the sufficiency of the measures that have been taken to discharge the government’s obligations.)

(With respect to infrastructure, the litigation does not raise the question of whether a school should be constructed, the school already exists.  The question raised in this litigation is whether that school satisfies the obligations imposed by Section 23...)

[My translation.]

[107]     With respect to the adequacy of the infrastructure, the court stated, at para. 578:

La question fondamentale à laquelle le tribunal doit répondre au sujet des infrastructures actuelles de l'ÉASC est à savoir si elles sont suffisantes pour offrir aux élèves qui la fréquentent une égalité réelle par rapport aux élèves de la majorité anglophone. Cette grande question soulève elle-même plusieurs autres sous-questions.

(The fundamental question to which the court must respond insofar as the existing infrastructure of the ÉASC [the school] is concerned, is whether it is sufficient to offer students real equality with the students in the majority Anglophone population.  This large question itself raises many preliminary questions.)   [My translation.]

[108]     The first question addressed by Charbonneau J.--viewed as critical to the s. 23 analysis--was the proper point of comparison for the Francophone school.  The rights-holders submitted that the facilities at the Francophone school should be compared with those available at Anglophone schools in Yellowknife.  The Minister submitted that the point of comparison should be schools throughout the Northwest Territories or in other districts with a number of students similar to the number of students at the Francophone school.  In order to answer the question, the court turned to the fundamental objectives of s. 23: the maintenance of two official languages in Canada and the encouragement of the flourishing of the languages and cultures throughout the country.  The court stated, at para. 582:

 La réalité, à Yellowknife, c'est que les élèves de la minorité francophone ont le choix entre fréquenter l'ÉASC ou fréquenter une école d'une des deux commissions scolaires anglophones.  C'est de cette façon que la question se présente, pour eux.  Les parents et leurs enfants n'ont pas à choisir entre l'ÉASC et l'École Kalemi Dene; ou entre l'ÉASC et les écoles de Norman Wells, Inuvik, Paulatuk ou Kakisa.  Ils n'ont pas non plus à choisir entre l'ÉASC et une école francophone de l'Alberta ou de la Saskatchewan.  Toute comparaison avec ces écoles est complètement dissociée de la réalité du choix qui se présente, dans la réalité, pour les membres de la minorité francophone.

(The reality in Yellowknife is that minority Francophone students have the choice of attending the French language school [ÉASC] or one of the schools of the two Anglophone boards.  That is the question presented to them. The parents and their children do not have the choice between attending the ÉASC and Kalemi Deni school or between ÉASC and schools in Norman Wells, Inuvik, Paulatuk and Kakisa.  Nor do they have the choice between attending at ÉASC or a Francophone school in Alberta or Saskatchewan.  Any comparison with these schools is completely irrelevant to the real choice available to the members of the Francophone minority.)   [My translation.]

[109]     Accordingly, the court held that Francophone facilities should be held up for comparison against those provided at Anglophone schools in Yellowknife, the real option available to the students.  The relatively low number of Francophone students was held to be important in determining what facilities could reasonably be provided, bearing in mind the criteria described in Mahe, but not relevant for the purposes of finding a point of comparison. 

[110]     The court found that the Francophone school suffered In comparison with the Anglophone schools in Yellowknife.  It had no gymnasium, no science laboratory, and no music room or theatre.  There was also no space available for industrial arts programs.  While the Francophone school offered an information technology program, and appeared to have developed a specialized niche, it was clear that there were important differences between the choices available to students at the Anglophone schools and those available at the Francophone school. 

[111]     The plaintiffs argued that s. 23 required the defendants to renovate the Francophone school and create a distinct wing for secondary students offering all specialized classes and equipment available to Anglophone students in Yellowknife.  The defendants argued that the existing building was adequate for the existing needs at the school, and to the extent there were shortcomings, they could be addressed by allowing the students of the Francophone school to use available spaces in other schools, or spaces elsewhere available in the community.  The approach of the defendants was to afford to Francophone students resources allocated in exactly the same fashion they would be allocated to a similar number of Anglophone students.  The court held, at paras. 614-615:

À mon avis, ces standards défavorisent systématiquement les écoles minoritaires, pour deux raisons.  Premièrement, par définition, les écoles minoritaires sont plus petites que celles de la majorité.  Elles n'auront donc souvent pas les effectifs qui lui donneront la flexibilité d'aménager des espaces spécialisés.  La création de salles à usages multiples est une solution partielle, mais il y a des limites aux façons de combiner les utilisations d'une même salle.  De plus, dans une école qui accueille des élèves de la maternelle à la 12e année, la conséquence est souvent de forcer l'école à utiliser les mêmes espaces à usages multiples pour le primaire et le secondaire.  Ceci peut être difficile à gérer, les exigences des espaces étant très différentes pour les deux groupes.  De plus, la combinaison de plusieurs usages pour une même salle de classe peut causer de sérieux problèmes logistiques dans la gestion de l'horaire d'une école qui, quoique petite en terme de nombre, a des élèves répartis sur 13 niveaux.

La deuxième raison pour laquelle ce genre de standards risque d'avoir un impact plus négatif sur les écoles de la minorité, et c'est vrai dans le cas de l'ÉASC, c'est que les écoles minoritaires perdent souvent une partie de leurs effectifs au niveau secondaire.  La preuve établit que l'ÉASC a historiquement eu du mal à retenir ses effectifs au niveau secondaire.  Le Dr. Landry a expliqué que ce phénomène est fréquent dans les écoles de la minorité francophone. Indépendamment des causes de ce phénomène de migration, leur conséquence est que, comme c'est le cas à l'ÉASC, une forte proportion des effectifs est concentrée au niveau primaire.

(In my view, such standards systematically discriminate against minority schools for two reasons.  First, by definition, minority schools are smaller than majority schools.  They will rarely have enough students to give them the flexibility to offer specialized spaces.  Multiuse rooms are a partial solution, but there are limits to the uses that can be combined in the same room.  Further, as a consequence of accepting students from kindergarten to Grade 12, students may be required to use the same multiple use space for primary and secondary education.  That can be difficult to manage; the space requirements of such groups are quite different.  Further, the use of one space for multiple purposes can cause serious logistical problems in the management of the timetable of a school, which, although small in terms of number, has students studying at 13 levels.)

(The second reason for which such standards can have a negative impact on minority schools, and this is the case with ÉASC, is that minority schools often lose a number of their students at the secondary level.  The evidence establishes that the French school historically has had difficulty retaining its students at the secondary level.  Dr. Landry explained that this phenomenon is common in minority Francophone schools.  Regardless of the causes of this movement, the consequence is that, as is the case in ÉASC, a large proportion of its students are concentrated at the primary level.) 

[My translation.]

[112]     As the court pointed out, the uniform application of Anglophone school standards to the Francophone schools will usually result in very limited resources being made available to Francophone students.  Ultimately the court concluded, at para. 621:

Cette approche d'application uniforme des standards est erronée non seulement parce qu'elle ne tient pas compte des impacts négatifs décrits plus haut, mais surtout parce qu'elle présume que les moyens de combler les lacunes qui sont appropriés pour les écoles de la majorité le sont tout autant pour les écoles de la minorité.  Selon moi, ce n'est pas le cas. Le fait de devoir utiliser des espaces à l'extérieur de l'école quand cette dernière n'a pas les installations nécessaires pour certains cours a un impact beaucoup plus négatif sur une école minoritaire que sur une école de la majorité.

(This approach of uniform application of standards is erroneous not only because it fails to take account of the negative impact of those standards described above, but above all because it presumes that the means of addressing shortcomings that are appropriate in the majority school system are equally appropriate in a minority school system.  This is not the case.  Having to use spaces outside the school when the resources at the school are inadequate for certain purposes has a far more negative impact on a minority language school than on a majority language school.) 

[My translation.]

[113]     As the court made clear, the objective of establishing homogenous French language schools is to create a linguistic community to foster the use of French and survival of the culture.  It becomes more difficult to achieve those ends when inadequacies in the Francophone school system must be met by the use of facilities in Anglophone schools or community resources.  Further, the court accepted the evidence of Dr. Landry that inadequate infrastructure is one factor, among others, that can influence the choice of schools made by minority language parents.  The court accepted the conclusion, which I regard as a common sense conclusion, that infrastructure can have a significant influence upon the recruitment and retention of students.

[114]     Further, at para. 633, Charbonneau J. noted that by applying the majority language school standards to the minority language system, the government had made the mistake addressed by the Supreme Court of Canada in Arsenault-Cameron (at para. 31). Specifically, s. 23 is not meant to reinforce the status quo through the implementation of a formal version of equality.  The use of objective norms to evaluate the pedagogical needs of minority language students does not adequately take into account the nature of the constitutional rights established by s. 23.

[115]     On the other hand, the court found the plaintiffs, by demanding facilities that could not be justified on their numbers, failed to take into account the sliding scale described by the jurisprudence.  The court noted, at para. 677:

La réponse à cette question requiert une analyse nuancée qui tient compte des infrastructures disponibles pour la majorité, en utilisant le comparateur que j'ai identifié (les écoles avec lesquelles l'ÉASC est en concurrence à Yellowknife), mais qui tient compte aussi des différences dans les nombres, des besoins pédagogiques de la minorité, de l'importance pour elle d'avoir des espaces scolaires distincts, et des coûts.

(The response to this question requires a nuanced analysis that takes into account the available infrastructure for the majority, using the comparator that I identified (the schools with which the French school competes in Yellowknife), but which also takes into account the differences in numbers, the pedagogical needs of the minority, the importance for the minority of having distinct educational spaces, and the costs of those requirements.)

[My translation.]

[116]     Without fully describing the facilities to which the students were entitled, the court held the existing facilities were inadequate because there were too few classrooms, the school should have a gymnasium, there should be some additional space so as to permit separation of primary and secondary students, the outdoor play area should be enlarged, and additional specialized spaces were required.

[117]     There was also a question with respect to the use of space in the Francophone school by a pre-school and a daycare.  The court held that, while the Francophone school board was entitled to establish such programs, it could not confer upon them a constitutional status and could not, as a rule, require the government to afford them to minority-language students.  Whether programs other than the core mandated instruction are necessary to effect the objectives of s. 23 is a factual question, depending upon evidence of the role of the program in establishing and maintaining enrollment in the minority-language  education programs.  The court concluded, at paras. 786-787:

Je conclus donc que la garderie est un maillon important de la chaîne dans la promotion et la pérennité de l'école. Ceci contribue à la réalisation des objectifs fondamentaux de l'article 23, et j'estime, pour cette raison, qu'une mesure de réparatrice concernant la garderie est une réponse appropriée à une violation de l'article 23.

Quant au programme de pré-maternelle, il ne fait pas partie du programme primaire au sens de la Loi sur l'Éducation, mais j'accepte qu'il joue aussi un rôle important, tant au niveau du recrutement que de la francisation.  À cet égard, comme la garderie, il est un outil important dans la mise en oeuvre de l'article 23 et il est juste et convenable que l'attribution d'espaces pour ce programme fasse partie des mesures de redressement accordées dans les circonstances de ce recours.

(I therefore conclude that the daycare is an important link in the chain in the establishment and promotion of the school.  It contributes to the realisation of the fundamental objectives of Section 23, and I conclude, for this reason, that a remedy which includes the daycare is an appropriate response to a violation of Section 23.)

(As for the pre-school program, it does not form part of the primary education system established by the Education Act, but I accept that it also plays an important role in the recruitment into the Francophone system.  In that regard, like the daycare, it is an important tool in effecting the objects of Section 23 and it is just and convenient that the allocation of space for this program is part of the remedy afforded in the circumstances of this case.)

[My translation.]

[118]     The elimination of programs that are not constitutionally mandated cannot be a prerequisite to demanding those services that are so mandated.  This principle was applied in the Hay River case.  There, the school had admitted a number of non-rights-holders pursuant to the policy of the Francophone school board.  The court held that the legislation did not preclude the board from admitting such students, and the Minister could not take issue with their registration, and must take such registrations into account in determining whether the facilities are adequate to meet the needs of the rights-holders. 

[119]     As in the Yellowknife case, the court held that the facilities that must serve as the principle point of comparison were those available to the Anglophone majority in Hay River. 

[120]     The court also observed, as in Yellowknife, that both parties had taken extreme positions.  It was not sufficient to say that the Francophone facilities met the uniform standards applicable to a comparable number of Anglophone students.  Nor could the Francophone students demand all of the facilities available to the much larger number of Anglophone students.  The court held, at para. 773:

Parce que l'École Boréale n'a pas son propre gymnase, elle ne dispose d'un espace homogène distinct pour aucune de ces activités.  Cela crée une érosion importante de l'homogénéité linguistique de l'école, et nuit considérablement à sa mission en tant qu'école minoritaire.  Selon moi le degré d'érosion est énorme, et inacceptable, si les élèves de la minorité ont à tous les jours ou presque à sortir de leur école pour utiliser les espaces où la langue usuelle est celle de la majorité.  Le Dr. Landry a parlé de l'importance pour l'école d'avoir ses espaces distincts et j'accepte son opinion à cet égard. Cette opinion s'accorde d'ailleurs avec la jurisprudence en matière de droits linguistiques scolaires.

(Because Boreal School does not have its own gymnasium, it does not have a distinct space for any of these [athletic] activities.  That leads to a significant erosion of the linguistic homogeneity of the school, and adversely affects its mission as a minority language school.  In my view, the degree of erosion is enormous and unacceptable if the students of the minority have to leave the school almost every day to use spaces where the usual language is that of the majority.  Dr. Landry spoke of the importance for the school to have its distinct spaces and I accept his opinion in this regard.  His opinion is in accordance with the jurisprudence addressing minority language education rights.)   [My translation.]

[121]     Reaching the same conclusion as in Yellowknife, the court held the government had breached s. 23 by failing to provide to minority language students the facilities their parents were entitled to demand.  The court described the inadequacies and directed they be remedied, without tying the hands of the board or the government with respect to the manner in which those inadequacies would be addressed.

[122]     The consideration of these issues by the Supreme Court of the Northwest Territories is informed by a careful analysis of the jurisprudence. In my view, Charbonneau J. clearly seeks to effect the result intended by the guarantee of minority language education rights in s. 23 of the Charter.  I accept and adopt the method and analysis employed in these helpful cases.

IV.            DISCUSSION AND ANALYSIS

A.              Numbers

[123]     The petitioners say there are only two issues to be determined: whether there are a sufficient number of rights-holders to warrant the provision of educational facilities, and whether the facilities currently afforded to rights-holders are sufficient to meet the needs of that number of rights-holders.  They say current enrolment represents only the number of individuals prepared to exercise their minority-language rights in the present circumstances.  Section 23 is intended to do more than simply guarantee that status quo.  The existing facilities are a disincentive to participation in minority language education, and there is evidence that the facilities now afforded to Francophone children are inadequate to meet existing demand.  A relatively large proportion of the roughly 2,000 individuals identified as parents of children who speak French at home in the catchment area would enroll their children if CSF schools did not compare unfavourably with VSB schools.

[124]     The CSF says there is no challenge to Dr. Landry’s expertise and his report is uncontradicted.  There is no suggestion of methodological error.  His report therefore stands as the best evidence of current and reasonably anticipated demand for minority language education.  The CSF says, given the size of the current Kindergarten class, the floor estimate of numbers should significantly exceed current enrollment of 370 and may be a large proportion of the children of rights-holders in the catchment area which it says certainly exceeds 1,000. 

[125]     In response, the Minister says, first, evidence of unexpressed demand is irrelevant.  No demographic analysis is necessary, the numbers exist.  The CSF is obliged to accommodate all children of rights-holders who seek to study in French.  The current enrolment is therefore the appropriate measure of numbers for whom facilities must be provided.  The Minister says analysis of potential demand is only necessary or helpful where there is no existing school facility that can be used to measure demand.  That is particularly so where, as here, in the Minister’s view, the existing facilities are adequate to meet demand.  The Minister says the CSF’s annual enrolment projections must be used as a basis for the “numbers warrant” test.  The Minister says that to do otherwise than accept those projections is to look behind the authority of the CSF, which is charged with the obligation of identifying and addressing the needs of minority rights-holders. 

[126]     I reject the Minister’s argument that demand is determined by current enrollment or by the CSF’s annual enrollment projections. In the face of the evidence of crowding and the effect of that crowding on enrollment, the conclusion that there is unmet demand is inescapable.  The CSF has an obligation to accurately report anticipated enrollment.  There is no basis upon which I can find that the CSF has ever expressed to the Minister an opinion on the number of rights-holders in the catchment area or the enrollment that might be anticipated if the current apparent inadequacies are addressed.

[127]     I accept the submission of the petitioners and the CSF that if enrolment were not affected by the limitations of the existing facilities, there would be more than 370 children registered at Rose-des-vents.  Given the evidence of actual enrollment, the population of rights holders and unmet demand, seen in the light of the experience at école Brodeur, école André Piolat, and école Anne Hébert, I am of the view that the Francophone minority population in the City of Vancouver west of Main Street warrants provision of elementary school facilities capable of accommodating approximately 500 students. 

B.              Point of Comparison

[128]     The Petitioners and the CSF say that in order to determine what facilities should be afforded to those rights-holders, the court should look to the facilities afforded to a comparable group of majority language students.  They say in light of the remedial purpose of s. 23, the court should require government to provide services to the minority population equivalent to the services they could obtain by assimilation.  A Francophone option must be made available to the minority language students on the west side of Main Street in the City of Vancouver that is as attractive as the Anglophone schools they would otherwise attend.  Any assessment of facilities that does not reflect that objective of the comparison is misleading.

[129]     The Minister says in determining what facilities ought to be looked to for comparative purposes the court should place some weight upon two factors, in particular, that distinguish the Francophone schools from Anglophone schools on the west side of Vancouver.  First, given the evidence is that the population in CSF schools is increasing dramatically,  the court should look at the level of services the Province is able to deliver to students in areas where the school population is increasing dramatically, such as Surrey, for appropriate comparators. Second, the Minister says the school-aged population of Francophone students on the west side of Vancouver is relatively less dense than the population of Anglophone students.  It is therefore most appropriate to compare the facilities provided to them with facilities provided to Anglophone students in areas where the population is equally sparse.

[130]     The petitioners say the Minister’s approach has been rightly rejected in the Yellowknife and Hay River cases.  Preservation and promotion of the existence of a linguistic minority will not be effected in the City of Vancouver if Francophone students are told that the cost of attendance at any Francophone school is that they must be satisfied with the level of services afforded in other areas where the population is growing quickly, or areas where the population is less dense.  To do so would simply result in the selection of Anglophone schools. 

[131]     The Minister further says setting a local standard, rather than a province-wide standard, will impinge upon the ability of the CSF to exercise management and control in allocating resources between its schools.  The Minister suggests that, by requiring the CSF to provide students with facilities that are equivalent to those students might access in competing nearby schools, this Court would be requiring the CSF to establish and provide facilities of varying standards in various regions of the Province, dictated primarily by the facilities established by the majority language school boards. 

[132]     I accept the submission of the petitioners that once it is determined their numbers are sufficient to warrant an elementary school, the rights-holders are entitled to an elementary school that is at least equivalent to that afforded to most Anglophone students on the west side of the City of Vancouver.  I am not  concerned that standard imposes constraints on the CSF.  The jurisprudence clearly establishes that, notwithstanding the existence of a school board with management and control of the resources available to the minority language students, rights-holders may bring an action for a declaration that the facilities afforded to them are inadequate.  Section 23 gives rights to individuals; those individuals are entitled to a remedy.  Having determined that the minority language students in the City of Vancouver have a right to facilities equivalent to those provided to their majority language peers, this Court should not restrict its analysis of the claim for fear that granting the declaration sought will tie the hands of the CSF to meet a standard effectively set by majority-language school boards.  The CSF itself does not raise this objection to the comparative standard proposed by the petitioners.  

[133]     The petitioners and the CSF say, in considering what facilities ought to be afforded to the children of rights-holders, the analysis should be weighted in favour of factors that are likely to have an impact upon a parent’s choice of school.  In that exercise, the petitioners say, the structural integrity of the school may be of some significance, but may be small in comparison with the size of the classrooms, their aesthetic appeal, and the presence of an adequate playground. 

[134]     The Minister says it is not enough for the petitioners to point to certain inadequacies in the facilities afforded to them.  There must be an objective basis for concluding those inadequacies will have an impact upon educational outcomes.  The Minister says strong educational outcomes and the generally supportive parent satisfaction survey are evidence that the level of instruction provided to the students in the existing facilities is sufficient to meet their needs.  They say equivalence may be addressed by looking at academic outcomes. 

[135]     I am of the opinion that in measuring equivalence I should look primarily to factors that influence parental enrollment decisions.  I should look to evidence of the aesthetic qualities of the facilities and their structural integrity as well as evidence of academic outcomes.  The principal objective of avoiding linguistic assimilation should be borne in mind.  To the extent academic success contributes to enrollment it must be considered but does not stand as a substitute for a comprehensive measure of the equivalence of facilities.  

C.              Facilities

[136]     The Constitution requires the provision of full and complete education to minority language students where numbers warrant, not a limited, partial or truncated education, not an inferior or second-class education.  The requirement that the facilities provided to minority language students be equivalent to those provided to the majority is clearly described in the jurisprudence as the result intended by s. 23 of the Charter.  The court must determine what is functionally equivalent.  That demands the application of common sense to the evidence before the court. 

[137]     The parties have addressed the evidence from different perspectives.  The government does not challenge much of the evidence of the petitioners and the CSF.  The CSF has defined the catchment area to include all of Vancouver west of Main Street.  The CSF is obliged to receive and register as students any child of a rights-holder living in that catchment area. Enrollment has grown and is growing. There is no available flexible space in the school.  The library is very small.  The washrooms are inadequate.  The classrooms are significantly smaller than those in other schools.  The hallways are narrow and there is no storage space.  The playground is small and divided into small pieces.  It is probable that the space made available to Rose-des-vents at Jules Verne will diminish in the coming years.  Parents have moved to other schools because of crowding, inadequate facilities and long travel times.   

[138]     On the other hand, the parents and the CSF do not challenge the government’s position that academic results are reasonably good.  Parents are satisfied with the quality of the instruction their children are receiving.  There continues to be high demand for enrolment at the school.  Structurally the school is sound.  The number of students enrolled in each class in Rose-des-vents is more or less equivalent to Anglophone schools.  There would be more classroom space available if there were not a daycare or pre-school at Rose-des-vents.  Capacity utilization rates would be lower if there was a global assessment of utilization for the “co-terminous” Rose-des-vents/Jules Verne facility.  The school will not be overcrowded if only students who live reasonably close to the school are permitted to enroll.  There are Anglophone schools that may need seismic upgrades or rectification of asbestos or lead problems more quickly than Rose-des-vents. 

[139]     The Minister responds to the evidence of inadequacy by saying first, that the facilities are adequate because they meet a reasonable standard of equivalence and do not fall below any established standard.  Second, the Minister says the facilities available on the co-terminous Rose-des-vents/Jules Verne site are sufficient to meet the needs of the K-12 Francophone population.  Further, the Minister argues, the facilities would not be inadequate if some were not used for “non-core activities”, if non-rights holders were not enrolled or if the catchment area is re-defined.

[140]     The petitioners say the existing facilities are inadequate by any measure.  There may be almost 800 school age children of rights-holders in the catchment area who would attend a new or larger elementary school and facilities should be sufficient to accommodate them.  The petitioners say the Rose-des-vents facilities, inside and outside the school, are the worst afforded to elementary students in the City of Vancouver.  The hallways, classrooms, washrooms, and library are all small and inadequate.  There is overcrowding.  There is inadequate room for storage for special classes, for pre-school operations, and for activities.  While the area for play outside has been improved as a result of a contract with the City, the facilities that are available without additional supervision are not adequate to permit the students to engage in a broad range of recreational activities.  The petitioners say the Minister has recognized the high priority of a new Francophone school, implicitly acknowledging the inadequacy of the current facilities.

[141]     The Minister says the court should look to objective criteria such as the FCI index, which demonstrates that the structural quality of the school building is adequate.  The Minister says overcrowding is not so problematic as to adversely affect the quality of the education provided to the students, and the capacity utilization at the school is not much above average.

[142]     I accept the submission of the Minister that the Court should use as many objective criteria as possible in engaging in the analysis called for by the Charter.  I place some weight upon all objective measures of equivalence in evidence.  It is an error, however, to suggest that the FCI index is particularly helpful in this case.

[143]     I accept, as well, that some complaints made by parents and teachers arise out of problems that appear to be common in elementary schools.  With respect to the K-12 configuration, the Minister says the CSF itself intends to construct purpose built K-12 schools in other places.  Anglophone districts operate K-12 schools.  Some intentionally do so to foster inter-generational learning.  The evidence of the Minister suggests that shared elementary and secondary use of a facility may be managed in such a manner that it is not a disincentive to enrollment.  With respect to the use of a gymnasium, the Minister leads evidence that the facilities available to the students at Rose-des-vents are equivalent to those provided to Anglophone students in VSB schools.  It is common for classes to share gymnasiums the size of that used by Rose-des-vents students.  I am not satisfied that the gymnasium facilities generally fall below the standard described in the Anglophone schools. 

[144]     However, as the petitioners argue, it is not necessary that the school be found to be wanting in every respect.  Nor is it significant that the students, like those in Yellowknife, have some facilities that are not afforded to their Anglophone counterparts (in this case, the access to and use of laptop computers).  The question is whether, bearing in mind all of the facilities provided to them, a disparity exists between the facilities afforded to minority and majority language students.  The evidence, in my view, clearly establishes such a disparity.

[145]     The Minister says the K-12 facilities are not inadequate.  If one takes into account the classrooms that are made available in Jules Verne and the relatively low capacity utilization at that school, the capacity utilization of the co-terminous facility is not unusually high.  Looking at the K-12 facilities afforded to students at Rose-des-vents/Jules Verne, the school is not significantly overcrowded in comparison with Anglophone schools and the total number of students at Rose-des-vents and Jules Verne can be accommodated at the facility they jointly occupy.  I am invited to consider the global adequacy of the Rose-des-vents/Jules Verne facility.

[146]     I reject the submission that Rose-des-vents and Jules Verne should be considered to be one facility for the purposes of this petition.  The application is brought by the parents of elementary students in the catchment area.  The question is the adequacy of the facilities afforded to elementary school students.  The evidence clearly establishes that there are two institutions established to serve Francophone students on the west side of the City of Vancouver, an elementary school and a secondary school.  The secondary school has permitted the elementary school to use some of its facilities pursuant to an agreement.  There has been some friction between the institutions.  The needs of the secondary school will increase over time and in the near future the facilities in the secondary school may no longer be at the disposition of the primary school.  The evidence before me, however, was not tailored with a view towards assessing the needs of the secondary school or the space available to it.  The question was not framed in relation to the joint use of facilities.  At no point before argument did the Minister take the position that it was inappropriate to address the question of the facilities afforded to elementary students in the City of Vancouver.  The CSF addresses the needs of the elementary school population distinctly from the needs of the secondary school population.  I am not prepared to accede to the suggestion made by counsel for the Minister in the course of argument that the question be reformulated so as to address the collective needs of the K-12 population in the relevant catchment area.

[147]     The Minister says there are very few prescribed standards for the condition of educational facilities in British Columbia.  The facilities provided for elementary students vary greatly between schools and school districts.  The petitioners cannot establish that the facilities provided to them do not meet Provincially-mandated standards.  If the services afforded to the Francophone students in the City of Vancouver fall within the acceptable range, then the Minister says this Court should not grant the declaration sought.

[148]     I am of the view that argument is ill-founded.  The jurisprudence clearly identifies the intent of s. 23 as remedial.  Requiring government to meet only minimal legislated standards would rob s. 23 of its remedial function.  Government cannot avoid its obligation to provide instruction and facilities to minority language students by failing to establish standards, or establishing low standards.

[149]     Turning then to the argument that the inadequacy is a result of misuse of resources that ought to be directed to “core services”, the Minister says that use of some of the facility for daycare or after-school care decreases the space available for core Francophone education. I accept that only the core education is constitutionally protected, but the use of facilities for daycare or pre-school cannot be ignored in comparing the facilities available to the two official language groups in Vancouver.  The evidence is that where space permits Anglophone schools can devote space to the use of non-profit daycares and pre-schools.  The evidence, further, is that most Anglophone schools have available space and many do offer that service.  To deprive the Francophone school of the opportunity to make that service available to its students is to cause it to be less competitive with its Anglophone counterparts.  It is true that the Constitution does not protect the provision of such services.  What it does protect, however, is equality of treatment.  It cannot be said that the availability of pre-school care in Anglophone schools is irrelevant to the question of whether the linguistic minority is being given equivalent treatment. 

[150]     Even without giving some weight to the evidence that the pre-school and daycare are essential aspects to the development and preservation of the linguistic community that feeds and sustains the minority education system, some weight should be given to the capacity to operate a daycare in considering the equivalence of the facilities afforded to the majority and minority language students and their families.  Furthermore, I am of the view that facilities available to elementary students would compare unfavourably with most Anglophone schools in the VSB even if no use were made of classrooms for daycare or pre-school uses. 

[151]     In the course of argument, the Minister raised some concerns with respect to the registration of the children of non-rights-holders at Rose-des-vents.  There was no evidence that the number of such children forms any substantial portion of the enrolment, and in any event, there is no support in law for the position that those students should not be taken into account in calculating the needs of the children of rights-holders.  So long as the school is permitted by the CSF to enrol such students, their numbers should be included in the calculation of capacity utilization and their presence should be considered in determining whether or not adequate facilities are made available to the children of rights-holders.

[152]      The Minister submits that the adequacy of facilities should be assessed in relation to the needs of students within a smaller or re-defined catchment area, such as that portion of the City of Vancouver within reasonable commuting distance of the existing school.  That, too, amounts to recasting the question before me.  The CSF in this case has chosen to define the catchment area for purposes of analysing the needs of Francophone elementary students as the area of Vancouver west of Main Street.  I am not asked to determine whether that is an appropriate definition of the catchment area, but rather to determine whether the facilities afforded to the students within the catchment area are sufficient to discharge the government’s constitutional obligations.  I have considered the potential demands of all children of rights-holders within that catchment area and, in order to determine whether the constitutional obligation is met, compared the facilities offered to them with those offered to the same population of students by the VSB. 

D.              Accessibility

[153]     As noted above, the constitutional requirement that minority language students receive educational facilities where their numbers warrant implies that those facilities will be accessible to the students.  Accessibility is a complex question.  First, in addressing the “numbers warrant” question, it will be necessary for the courts to define the area in which the population of rights-holders is estimated.  In instances where there is a school board exercising management and control on behalf of the rights-holders, it will usually be appropriate to leave the description of relevant catchment areas to the board.  Using the board’s definition of the catchment area, the court should then apply the sliding scale described in the case law in addressing challenges to the adequacy of the instruction or facilities provided.  In Arsenault-Cameron, the Supreme Court of Canada recognized, at paras. 49-50, that the pedagogical requirements of the minority need not be met in an identical way to those of the majority.  That is as true of transportation arrangements as it is of physical facilities.  The nature and extent of the facilities afforded to students will have some impact upon transportation arrangements.  Minority language boards, like majority language boards, may decide that it is preferable to have students travel long distances to a larger and better-equipped facility or, in some instances, to have students travel shorter distances to smaller facilities, such as the VSB annexes, where they may have less options and limited facilities.  Minority language students in remote locations may prefer to be included within the catchment area of a particular school rather than find themselves in a situation where their numbers do not warrant a dedicated facility.  It may be for that reason that in Arsenault-Cameron the Court held that travel times that may be reasonable for official language minority students in some circumstances cannot absolutely govern what is appropriate in other circumstances.  In Arsenault-Cameron, the Court was only required to consider whether the Minister had breached the Charter rights of the parents of minority language students by failing to adopt the recommendation and decision of the minority language school board.  The board had therefore exercised its judgment and made a determination with respect to appropriate travel times.  The Minister was held to have acted improperly in substituting his decision for the board’s and applying a standard that was not appropriately driven by pedagogical considerations. 

[154]     The CSF says there is evidence rights-holders are being discouraged from exercising their rights as a result of long travel times to the school.  The CSF is of the view that it is being adversely and disproportionately affected by a freeze on transportation allowances.

[155]     The Minister says the court cannot establish an absolute limit on appropriate travel times. Insofar as the CSF has determined what is acceptable, it has established a 45 minute bus ride as the standard that ought not to be exceeded.  That is not being exceeded in Vancouver.  In other areas, such as the Gulf Islands and Gold Trail School Districts, students have longer travel times.  The Ministry of Education itself sets no standard that may be used to determine whether a student’s travel time is excessive.  It says the court should look at sparsely populated districts, rather than the City of Vancouver for comparable and reasonable travel times.

[156]     As a result of their geographic dispersal within the City of Vancouver, Francophone students cannot reasonably expect to be able to attend a school within walking distance of their homes.  For that reason, it is reasonable for transportation to be provided to them so that they can attend a school that is as accessible to them as an Anglophone school would be.  Schools in Vancouver are readily accessible to Anglophone students.  In order to compete with those schools, the Francophone system must afford bus transportation to its students.  It must do so without charging them for transportation.  It must establish an efficient means of transportation so that the bus ride is not a significant disincentive to enrolment.  It may be preferable for Francophone students to travel longer than Anglophone students must travel if that is regarded by the CSF as a means of making available to them all of the range of activities and courses that can be afforded in a larger school.  There is evidence that some students in the Anglophone system attend at small schools or annexes in the first few grades of elementary school that are located close to their home.  These annexes do not have the full range of facilities available to students at larger elementary schools.  The decision to use resources in this fashion is a pedagogical decision made by educators who are in the best position to make decisions with respect to the appropriate use of resources to achieve educational outcomes.  One disincentive may be offset by other attractions and advantages to a school. 

[157]     I am not prepared in this case to find that transportation afforded to students at Rose-des-vents is inadequate in every instance where it takes a student more than 45 minutes to get to school.  I am prepared, however, given the evidence with respect to the facilities afforded to students at Rose-des-vents, to say that long travel times in this case are clearly not offset by superior facilities or programs, and that together with inadequate facilities, long travel times act as a disincentive to enrolment, preserve the status quo, and defeat the purposes of s. 23 of the Charter.  I am not prepared to grant the declaration sought to the effect that inadequate transportation arrangements have been made for students at Rose-des-vents, any more than I would be prepared to grant a declaration that the library alone is inadequate.  What can be said on the evidence is that, collectively, the facilities, including transportation facilities, afforded to the children of rights-holders in the City of Vancouver west of Main Street are presently inadequate to meet the standard of equivalence required to satisfy the constitutional guarantee established by s. 23.

V.              JUDGMENT

[158]     I find that the petitioners are not being afforded the minority language educational facilities guaranteed to them by s. 23 of the Canadian Charter of Rights and Freedoms.  I am satisfied, weighing all the evidence of the facilities made available to Francophone students in comparison with the facilities made available to Anglophone students, that the former are not equivalent to the latter.  I am further satisfied that the disparity is such as to limit enrolment in the minority Francophone program and contribute to the assimilation which is sought to be avoided by s. 23.

[159]     I have weighed the evidence adduced by counsel for the Minister with respect to the need of many school districts and the competition for scarce resources.  It is important, however, to bear in mind, as the court held in Dufferin Peel, at para. 7, the Constitution was intended to avoid subverting rights to economic policy.  The constitutional commitment embodied in s. 23 is a compromise that serves a political purpose and the state should be taken to have recognized the economic obligations flowing from the commitment in s. 23 at the time the rights were embodied in the Charter, and given constitutional substance. 

[160]     There will, therefore, be a declaration in favour of the parents living west of Main Street in the City of Vancouver who have the right to have their children receive primary school instruction in French that they are not being provided the minority language educational facilities guaranteed to them by s. 23 of the Canadian Charter of Rights and Freedoms.

[161]      I will retain jurisdiction to hear applications for any further relief that may be sought by the Petitioners arising out of the issues raised by the pleadings.

“P. Willcock J.”

The Honourable Mr. Justice P. Willcock


 

Schedule A
Rulings on admissibility

Petitioner’s Affidavits

Affidavit

Paragraphs

Objection

Ruling

Luc Morin #1

9, 21-26, 30, 38-42

Hearsay

Wherever Mr. Morin deposes to the belief that parents are opting to move their children or enroll them elsewhere because of a deficiency in the facilities or travel times, his evidence is inadmissible as to the parents’ motives.

It is admissible as some evidence there are individuals not exercising their rights and some evidence of assimilation.

Luc Morin #1

10-19, 26, 34, 35

Relevance

Paragraphs 10-19 are admissible because the relationship between the elementary and secondary schools on the site is in issue.

Paragraph 35 is admissible, as comparative transportation times are relevant.

Luc Morin #1

43-48

Relevance

Evidence with respect to the transportation budget freeze is irrelevant. It goes to capital and revenue issues that are not before me.

Luc Morin #1

49-57 and 61-81

Relevance

Evidence with respect to the urgency of the application is irrelevant to the matter before me This evidence is inadmissible.

Luc Morin #1

49-57

Relevance

Evidence with respect to efforts to resolve the Associations’ concerns is irrelevant and inadmissible.

Luc Morin #2

6-12, 15-16

Relevance

The evidence of the CSF that the facilities are inadequate is admissible and relevant.  Evidence of growth in numbers over time is relevant.  Evidence the government did not independently assess numbers of rights-holders is also relevant.  All this evidence is admissible.

Luc Morin #2

28, 48

Hearsay

Evidence of the concerns of parents neither identified nor testifying themselves is inadmissible.

Luc Morin #2

49, 51 and elsewhere

Relevance

Statements that students have been “forced to” use facilities or that activities “must be” split are not inadmissible statements of opinion.  They are common parlance, well understood by the court.  Objection to this evidence is time consuming, a waste of judicial resources and not warranted.

Luc Morin #2

52

Hearsay

Mr. Morin may testify to advice he has received with respect to planning decisions.

This evidence is not adduced for the truth of the statements made to Mr. Morin.

Luc Morin #2

55-66

Hearsay

Evidence of the observations or opinions of parents not identified is inadmissible to prove the truth of the statements adduced.  Mr. Morin’s summary of other affidavits is admissible but of little weight.

Luc Morin #2

67-68

Relevance

Evidence with respect to efforts to remedy deficiencies is irrelevant to the questions now before me.  Para. 67 is argument and inadmissible

Steven Fedder #1 and 2

3,6 and 8 and 3

Relevance

Dr. Fedder’s evidence of the reasons for withdrawing his child from Rose-des-vents is relevant and admissible.

Isabeau Iqbal #1

3,7,9, 10

Relevance

Ms. Iqbal’s evidence of the reason she withdrew her child from Rose des Vents and the recent improvement in his school life is relevant and admissible.

Isabeau Iqbal #2

8

Relevance

A statement that students “had to play” in a cement area is not inadmissible.  Its meaning is well and easily understood.

Marie-Christine Pelletier#1

3-10

Relevance

Ms. Pelletier’s evidence of the reason she withdrew her children from Rose des Vents is relevant and admissible.

Marie-Christine Pelletier#1

8

Hearsay

Evidence of the motives of a student other than her child is inadmissible.

Marie-Christine Pelletier#2

3-11, 13-15

Relevance/Opinion

Ms. Pelletier’s evidence of the reason she withdrew her children from Rose des Vents is relevant and admissible.  Her description of the superior facilities at the school they now attend is relevant.  The basis for the conclusion is set out in the affidavit.

Bernie Hadley-Beauregard

3, 6-8

Relevance

Mr. Hadley-Beauregard’s evidence of the reason he withdrew his children from Rose-des-vents is relevant and admissible.

Quynh Doan 

4-10

Relevance/Opinion

Mr. Doan’s evidence of the reason he registered his children at Queen Mary Elementary rather than Rose des Vents is relevant and admissible.  His opinion the facilities at the former were superior to those at the latter is also admissible.  The basis for the opinion is clear.

Phillippe Le Billon

3-11

Relevance/Opinion

Mr. LeBillion’s evidence of the reason he registered his children at Queen Eliizabeth Annex and the superiority of that school to Rose-des-vents is relevant and admissible.

Nadine Cahan

3-8, 10,12,16, 18-22

Relevance/Opinion

Ms. Cahan’s evidence of the reason she is considering registering her children at Quilchena Elementary and her opinion that school is superior to Rose des Vents is relevant and admissible.  Her own comparison of Rose des Vents with Lord Tennyson, L’Ecole Bilingue and Quilchena Schools is also admissible.

Nadine Cahan

6-19

Hearsay

Evidence of the opinion of friends about facilities at other schools is inadmissible.

Luce Lafontaine

4-6

Hearsay

Ms. Lafontaine’s evidence that long bus rides may lead her to withdraw her son from Rose-des-vents is relevant and admissible.  It goes to the link between assimilation and adequacy of transport.

Paschale de Kerckhove

5,7,10-13

Relevance/Opinion

The passages in paragraphs 10-13 objected to by the Minister are inadmissible argument and opinion.  The balance of the affidavit is admissible.

Joseph Pagé

4

Relevance

The evidence of Mr. Pagé with respect to the efforts of the Association to bring concerns to the attention of the Minister is relevant because the Minister takes the position that current enrollment is a measure of demand for Francophone facilities or that the “numbers warrant” test should be addressed by looking at the CSF’s enrollment projections.

Respondent’s Affidavits

Affidavit

Paragraphs

Objection

Ruling

Yelenia Wood

6, 8-11, 15-22

Relevance/Opinion

Ms. Wood’s evidence about the role of the pre-school in the Francophone system, the demand for enrollment and the facilities available to it is relevant and admissible, for reasons set out in the judgment.

Nicole Chagnon

18, 58, 64

Hearsay

All of the evidence said to be hearsay is repetition of direct evidence in other affidavits.

Nicole Chagnon

19, 20, 22, 23,35,37-41, 48,57-61,64,69,72-78, 81, 86, 90, 93

Relevance

Statements to the effect students were “forced to” do certain things are not inadmissible statements of opinion.  They are common parlance, well understood by the court.

Ms. Chagnon’s description of the perceived advantages of early childhood education and the pre-kindergarten and daycare programs is relevant and admissible.

Nicole Chagnon

63, 82,84,87,89, 91,95

No Foundation

These are statements of opinion without foundation.  They are inadmissible.

Jacinthe Gautier

11,13, 14, 16, 21 27,33, 41

Relevance/Argument

All objections to the relevance of Ms. Gautier’s evidence, particularly the evidence of language acquisition, are unfounded.

Jacinthe Gautier

12, 14, 19, 24, 28

No Foundation

These are statements of opinion without foundation, they are inadmissible.

Rodrigue Landry#1

Entire affidavit

Relevance/Argument

There is no basis for the exclusion of the relevant and helpful report of Dr. Landry from the evidence in this case.

Nichholas Kenny#1

Entire affidavit

Relevance/Opinion

The historical summary of Dr. Kenney is admissible as a summary of reliable public records relevant to understanding the historic context of the linguistic minority, a factor expressly described in the jurisprudence as relevant to the statutory objective of addressing assimilation. 

Pierre Gallipeau

9,18,20,23

No Foundation

These are statements of opinion without foundation. They  are inadmissible.

Pierre Gallipeau

19, 22

Relevance/Hearsay

Mr. Galipeau’s own observations are admissible and relevant; evidence of the observations of others relayed to him is not.

Line Thivierge

7-10,19

Relevance

There is no basis for objection to Ms. Thivierge’s evidence with respect to registration patterns or concerns expressed by potential registrants or the difficulty making herself heard on the telephone.

Line Thivierge

7, 13-15, 20-22

Hearsay

Evidence of the motives of parents for registering elsewhere is not admissible through Ms. Thivierge, but her evidence with respect to the nature of concerns expressed to her as registrar may be received as some evidence of factors that may affect enrollment.

Dulciane Houde

6,11,20,21,23,24

Hearsay

Paragraphs 11, 20 and 24 are inadmissible.  Her evidence of the administration policy and the views expressed to her by her students is admissible as it is not relied upon for the truth of the views expressed.

Dulciane Houde

20,24

No Foundation

These are statements of opinion without foundation. They are inadmissible.

Paul Rostagno

3-9

Relevance

Mr. Rostagno’s evidence of the reason he registered his children at Queen Mary Elementary School and the superiority of that school to Rose-des-vents is relevant and admissible.

Zohra Sehboub

13-16 22, 28-31, 33,34

Hearsay and no foundation

Paragraphs 22, 28, 30 and 34 are statements of opinion without foundation and are inadmissible.  The balance of the evidence that is a summary of direct evidence deposed to elsewhere, and a description of the observed effect of the circumstances described upon students is admissible.

Shahpar Shoaï

8,9,11, 13 16, 18, 22, 27

 

Paragraphs 18, 22 and 27 are statements of opinion without foundation, they are inadmissible.  The balance of the affidavit is relevant and admissible.

Mario Cyr

17-24,
26-29,
34, 37,40, 41, 43,
47-49,
51, 52

Relevance

Mr. Cyr’s affidavit is relevant to the history of the current situation on the Jules Verne/Rose-des-vents common site and the status and role of the pre-school and after school programs, issues raised and addressed by the Minister.

Hugo Voyer

11-22

Relevance

Mr.  Voyer’s evidence is relevant to the status and role of the French-language daycare  program, an issue raised and addressed by the Minister.

Stéphane Lebihan

23

Relevance

The objection to this affidavit demonstrates excessive zeal on the part of counsel.  The objection is to Mr. Lebihan saying Rose-des-vents “does not or is not able to offer” certain programs.  The Minister does not object to Mr. Lebihan saying the program is not offered but objects to Mr. Lebihan saying that perhaps it cannot offer the program.  The statement is not objectionable in light of the balance of the facts deposed to by the affiant.  The objection is time-consuming and a waste of judicial resources.

Marie-Andrée Asselin

9, 14, 18, 21, 23-31, 33-34

Relevance

Ms. Asselin’s description of disincentives to registration at CSF schools, the importance of proximity in attracting volunteer parents, and the role and importance of pre-school and daycare programs is relevant and admissible.  Paragraph 14 is hearsay and inadmissible.

Jean-Pierre Gauthier

9-12, 23,26-31,33

Relevance, Hearsay

Mr. Gauthier’s evidence with respect to the French-language daycare, afterschool and kindergarten programs is relevant and admissible.  His evidence of his own observations of the facilities available at VSB schools is admissible.  That which is hearsay is inadmissible.

Claude Giroux

22, 23,25

Relevance

Mr. Giroux’s evidence of his efforts to re-schedule events so as to permit more efficient use of the gym is admissible.  So is his evidence of the effect of space constraints on sports programs.

Laurent Brisebois

18-21,31

Hearsay/Relevance

Mr. Brisebois’ evidence that the sharing of the Jules Verne/Rose-des-vents site was expected to be temporary is relevant to the question whether the collective facilities should be considered.

Kelly Grittner

19, 30-38,42, 45-47,52-54, 56,57, 65

Relevance/Hearsay and Opinion

The evidence in paragraphs 19 and 30-38, 42 and 52 relates to whether the CSF is making the most efficient use of its Rose-des-vents transportation budget.  That matter is now irrelevant to the issue before me.  The evidence in paragraphs 45-47 is not hearsay and is relevant and admissible.  The evidence in paragraphs 54-57 and 65 is inadmissible as argument.

Sylvain Allison#4

39,41,44,47,48,53,55, 60,72-76,80-85

Relevance

The history of the modification of the school to create the present configuration is relevant to the capacity evaluation and to understand classroom size.  Mr. Allison’s evidence with respect to his son’s registration in Jules Verne is relevant evidence of overcrowding in the shared facility, which goes to the continued availability of space for elementary school classes in the secondary school building.  The evidence in paragraphs 80-85 is irrelevant insofar as it goes to possible solutions to transport problems, an issue not before me.

Sylvain Allison#4

 57,70-71

Hearsay

Evidence of advice received by Mr. Allison as secretary-treasurer of the CSF is admissible if it is not adduced for the truth of the advice.

Réjean Gosselin

11

Hearsay

This hearsay is inadmissible. 

Lucie-Maude Desroches

11,18,23,31-32,33

No foundation and hearsay

Ms. Desroches does not depose to any experience as a VSB teacher.  There is no apparent foundation for her evidence with respect to conditions in VSB schools. This evidence is inadmissible.

Myléne Boulanger

12-15, 21,22,25,28,30,36

Hearsay and relevance

Ms. Boulanger’s evidence is all admissible, with the exception of paragraph 36, where she repeats the hearsay evidence of a mother.

Annie Bédard

13-18, 20, 22,24-26, 28-30,33,38,39

Relevance, opinion, argument

All of Ms. Bédard’s evidence, which is primarily about her experience as principal of the French Language secondary program that preceded the CSF program at Jules Verne is relevant to the context of the application.  It is not so argumentative as to be inadmissible.

Claude Martin

8-30,32-34

Relevance and Foundation

The evidence of the principal of Jules Verne with respect to the importance of sports programs, and the limitations of shared space and the problems sharing the space has posed are all relevant and admissible.

Angéline Martel

Entire affidavit

Expert opinion

Angeline Martel’s evidence of observations on her inspection of VSB elementary schools is admissible.

Angéline Martel

8,9,10,14,16, 17, 62,64,69,78, 113, 115

No foundation or hearsay

The foundation for the opinions expressed is apparent.  The adjectives used by Ms. Martel are unobjectionable.

Richard Leduc

19, 22, 25,26, 29, 31, 33, 35, 37, 38

No foundation, Relevance, Hearsay

Mr. Leduc does not depose to any experience at VSB schools that would serve a foundation for his evidence with respect to conditions in VSB schools in paragraphs 19, 22, 25, 31, 33, 35, and 38.  That and paragraph 37 is inadmissible. 

Carole Massé

9-15, 17, 18, 25, 27, 29,30, 35-41

Relevance, hearsay, foundation

The evidence of the former principal of Rose-des-vents with respect to the history of the facility is not admissible as to issues going to decision-making or responsibility, but is admissible as evidence as to context and intended use of the shared facility.  Paragraphs 18, 25, 30 and 35 are without foundation and inadmissible. Her evidence with respect to the value of early learning programs is admissible.

Sylvain Allison

2,4, 8, 9, 11-16, 22-52

Relevance, hearsay

The evidence of shared use of the space is relevant to the minister’s position that the shared space is available to Rose-des-vents.  The description of the arrangements for use of modulars is relevant.

Paragraphs 23-51, speaking to the announcement of plans for a new school are irrelevant as is evidence of funding of other VSB capital expenditures.

Shannie Harvey

16-18, 25, 36, 39-43, 45,
51-52, 55, 57, 59-60, 62, 64, 73, 76, 79, 81, 83, 86, 87, 88, 93, 96, 98, 100-101, 104, 114, 117-120, 123-124, 131, 134-136, 141-142, 145-146, 148, 153, 156, 159, 160, 165, 168-170, 173-174, 180-181, 184-190-191, 194, 197, 201, 204, 211, 214, 224, 230-234, 237, 242, 245

Opinion/
Argument

Shannie Harvey’s evidence of observations on her inspection of VSB elementary schools is admissible.  Evidence that a school appears to be “spacious”, “functional”, “accommodating” or “big” is all admissible.

Shannie Harvey

19-20, 98, 100, 110-111, 160, 198, 215, 222, 223

Hearsay

The specific hearsay evidence in the affidavit of Ms. Harvey, statements made to her by VSB staff members with respect to their facilities and programs, is admissible as necessary and reliable evidence.  It comes from an evidently reliable source and is practically necessary to describe the English-language facilities in an efficient manner.

Shannie Harvey

34-35, 107, 119, 129, 137, 163, 247

Relevance

All the evidence of Ms. Harvey is relevant to the issue before me.

Pascale-Sara Frenette

5-16, 18,19, 23-24

Relevance, opinion, argument

Ms. Frenette’s evidence of the reason she did not enroll her daughter at Rose-des-vents is relevant and admissible.

Michelle Marsan

8, 9, 14, 19, 21-26,  28,30-31, 34-35, 37-40, 46-49,

Relevance, opinion, hearsay

Ms. Marsan’s evidence of observations on her inspection of VSB schools is admissible.  The specific hearsay evidence in the affidavit of Ms. Marsan, a statement made to her by a VSB staff member with respect to their facilities and programs, is admissible as necessary and reliable evidence.