Thursday, May 15, 2008

French immersion in court will not succeed on Charter grounds - hopefully it will on procedural ones

New Brunswick parents, understandably upset with the province's incomprehensible decision to axe early French immersion programs, have decided to challenge this decision in court. According to the article in the Globe and Mail, they are claiming both that the province did not adequately consult with interested groups and that the decision violates their Charter rights to have their children educated in French. (Update: In stories on other news sites, the Charter issue does not appear.)

I can completely understand why the parents thought that legal action might help them win their case. Faced with recalcitrant legislatures, various interest groups, including French language minority communities, have found that Canadian courts are more willing to defend their rights. However, when it comes to French immersion, there is no right entrenched in the Charter that these parents can appeal to. In fact, in the 1980s, the New Brunswick courts explicitly ruled that Acadian parents have no right to send their children to French immersion schools - the section 23 right only applied to their right to send their children to French-language minority schools. Recent decisions in Quebec have also ruled that Quebec francophone parents did not have the right to educate their children in English, nor to send them to French immersion schools. The Charter protects the right to an education in one's mother tongue - not in one's second language. Second language education is, unfortunately, a privilege granted by the provincial legislatures.

Back in the early 1980s, Canadian Parents for French did lobby to have the Charter include the right of parents to educate their children in the official language of their choice, but this was rejected by the participants in the 1980-1982 constitutional talks.

I wish the parents well in their quest to have early immersion and core FSL reinstated in the province, and hope that they might succeed in having the courts rule in their favour on some other grounds. However, they should not pin their hopes on the Charter - Canadian jurisprudence is quite clear on this issue, and it is against the parents.

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At 8:22 pm, Anonymous Anonymous said...

It is always curious how easy it is to decide what argument will succeed when you are not actually a lawyer arguing the case. As someone who has lost cases on sound arguments and won cases on shaky ones, I am much less confident. The Charter is a living tree, our highest court has noted, and what might have been stunted growth decades early may yet sprout. Our judges do rise to the challenge of bringing justice, not just precedent, to bear on new situations.


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