Cost of upholding rights in Supreme Court case 'too high,' interveners worry

The Assembly of Manitoba Chiefs and other minority-language organizations are worried their constitutional rights might also be seen as too costly by the highest court in Canada.

AMC brought forward its concerns in the Conseil scolaire francophone de la Colombie-Britannique v. British Columbia case, saying as it stands, it could affect all historically disadvantaged groups in Canada, including First Nations.

"The decision is anchored in the premise that the force of assimilation is strong, the loss of language is inevitable and the cost of remedying discrimination is too high," Christian Monnin, AMC's legal representative, said in court.

The Supreme Court of Canada reserved its decision in the appeal in Winnipeg on Thursday.

Although the case originated in B.C. and involves a French school board, a total of 18 French and minority-language organizations across the country have standing in court as interveners, arguing a finding against the school board could lead to an erosion of rights and a disintegration of multiculturalism. 

In the case, B.C.'s French-language school board alleges the province violated constitutionally guaranteed rights to minority-language education by underfunding its own French-language education system.

The Canadian Charter of Rights and Freedoms guarantees the right of Canadian citizens to go to school in French or English, even when it's not the main language of the province or territory they're in. But that section of the Charter also says there have to be enough children to justify paying for school in that language.

The B.C. school board wanted the province to give more money to its French-language schools and upgrade school buildings and property. It also said the province should pay for not spending enough in the past. 

The school board argued the province's laws and policies breached the community's language education rights — but the province said it couldn't provide all the services the schools board wanted because it would be too expensive, and there weren't enough students to justify the cost.

The claim was partially successful at its 2016 trial in the Supreme Court of British Columbia. Justice Loryl Russell awarded $6 million in damages for a Charter breach based on the school division's transportation program, which Russell ruled the province "chronically underfunded" for a decade. 

The school division appealed and was dismissed in 2018. In the same Court of Appeal ruling, the province's cross appeal was allowed, and the $6 million in Charter damages were set aside. The school board then appealed that decision. 

Now, the Supreme Court must decide what school services B.C. needs to provide for its French-speaking community.

The case is important to a significant portion of French-speakers in Canada, even outside of B.C.

The Fédération nationale des conceils scolaires francophones, one of the interveners in the case, believes parents have a right to send their children to a French-language school.

Roger LePage, who represented the organization, suggested to the court that 40 French-speaking students is a reasonable number of students in an area to justify school services in French, barring any exceptional circumstances, like another French-language school nearby.

LePage pleaded with the court, saying its decision could make or break French-Canadian culture.

"If you don't have homogeneous schools, the culture will die out. It's not just a school, it's a community centre," he said through a translator.

"It's a debt owed by society to minority groups to make up for past prejudice. It's a form of restitution."

The case raises a number of issues, like what governments should have to do when there aren't enough students to justify full school services in a minority language, and whether courts should consider costs when deciding whether a breach of minority-language rights can be allowed. The Supreme Court will also decide whether B.C. should have to pay damages to its French-language school board.

The AMC says the decision could impact Indigenous people too.

The association, which represents 62 First Nations in Manitoba, said addressing the history of genocide of First Nations will require investing significant public funds. The government shouldn't be allowed to use financial constraints as a reason to put off efforts to address loss of culture, and high rates of poverty, incarceration, unemployment and involvement in the child welfare and justice systems that its policies have caused, said AMC in a release Wednesday.

"Remedying discrimination is an expensive task. While the costs of remedying discrimination are necessarily high, the consequences of not addressing it are even higher."

It's not known when the Supreme Court will release its decision.

The case is only the second the nation's highest court has ever heard outside Ottawa, after Wednesday morning's historic hearing of a criminal case at Manitoba's law courts that asked how long a judge should be allowed to take to issue a decision.