Section 23 of the Canadian Charter of Rights and Freedoms confers specific rights on right holders and their representatives. Any amendments to the Education Act must take this into account. It is also important to remember that Section 23 is not intended to confer any rights whatsoever on parents who are members of the majority. The purpose of section 23 is not to adopt a formal concept of equality that would aim primarily to treat official language majority and minority groups in the same way.
In our view, there is no place in New Brunswick where there are not enough minority language children to justify access to French-language education. However, there are still regions of the province where equitable access to French schools does not exist. For example, French-speaking parents living in western and central New Brunswick, from Florenceville to Nackawic to Woodstock, have difficulty accessing French-language education because the nearest French-language schools are a hundred kilometres or more away. This makes it easier for French-speaking parents to send their children to English schools. In such cases, the possibility of asserting Section 23 rights could be considered.
As the Supreme Court of Canada has stated on numerous occasions, the management and control of education by rights holders or their representatives is necessary and essential because many educational management issues have implications on both language and culture. The Supreme Court also recognizes that minority language parents and their representatives are in the best position to identify the needs of that community. Consequently, a minority language education system, to satisfy section 23, imposes certain parameters on the province from which it cannot derogate if it intends to honour its constitutional obligations.
In other decisions, the Supreme Court of Canada has concluded that when a minority language board of education has been established to meet the requirement of section 23, it is up to this board, because it represents the official language minority, to decide what is the most appropriate culturally and linguistically. The discretionary powers of the Minister of Education in such a system must therefore be exercised in accordance with the rights of linguistic minorities and in consideration of their needs and priorities.
It is on this basis that we have analyzed the Education Bill and are proposing the following changes.