Mahe v. Alberta: Management and Control of
Minority Language Education
Robert G. Richards*
Introduction
The Supreme Court of Canada recently offered its first detailed elaboration
of the minority language educational rights guaranteed in section 23 of the
Canadian Charter of Rights and Freedoms.’ Mahe v. Alberta2 defines those
rights broadly and gives minority language communities the authority to man-
age and control minority language education. It is a major victory for language
rights activists and will have a continuing impact on provincial and national
affairs.
Mahe is a direct response to the representations of minority language
groups that control of minority language education is a key to their continuing
vitality and survival. They argue that the educational system is central to com-
munity life and is an essential vehicle for the transmission to younger genera-
tions of language skills and cultural values. Those contentions clearly found
favour with the Court and inspired the substantive result in the appeal.
In general terms, Mahe obviously reflects the orthodox approach to bilin-
gualism in Canada.’ It advances and protects the minority language rights of
individuals in all provinces at a time when those rights are under public and
political pressure. Further, it attempts to help minority language communities
counter the social forces which continue to undermine many of them. Measured
against the accepted model of Canadian bilingualism, the decision represents
sound language rights policy.
*B. Comm., LL.B., LL.M. of MacPherson, Leslie and Tyerman, Regina, Saskatchewan. The
author would like to thank Donna Greschner for her comments on an earlier draft. The author
appeared as counsel for the Attorney-General of Saskatchewan in the Mahe case. The views
expressed are those of the author.
McGill Law Journal 1991
Revue de droit de McGill
‘Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
B of the Canada Act 1982 (U.K.), 1982, c. I1 [hereinafter Charter].
2Mahe v. Alberta, [1990] 1 S.C.R. 342, 68 D.L.R. (4th) 69 [hereinafter Mahe cited to S.C.R.].
3For a general discussion of Canadian language policy see: K. McRoberts, “Making Canada
Bilingual: Illusions and Delusions of Federal Language Policy” in D.P. Shugarman & R. Whitaker,
eds, Federalism and Political Community (Peterborough, Ont.: Broadview Press, 1989).
1991]
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However, Mahe must also be seen as a remarkable example of judicial
activism. It clearly illustrates the willingness of the Supreme Court to tailor its
legal reasoning in order to advance constitutional policy objectives. That aspect
of the decision is the principal focus of this commentary.
I. Section 23 of the Charter
Section 23 imposes a positive obligation on governments to provide minor-
ity language instruction and facilities to the children of three specifically
defined classes of parents. The section reads as follows:
23 (1) Citizens of Canada
(a) whose first language learned and still understood is that of the English and
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 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 pro-
vided out of public funds.
II. The Litigation
The Mahe case arose because francophone parents in the City of Edmonton
were not satisfied with the existing educational system in Alberta. They sought
a series of declarations about the meaning of their rights under section 23 of the
Charter. The key issue in the case concerned the “management and control” of
minority language education. Mr. Mahe argued that section 23 conferred rights
of that kind on parents entitled to educate their children pursuant to the section.
He enjoyed significant success in the Court of Queen’s Bench. Purvis J. held
that section 23 involves “a degree of exclusive management and control over
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provision and administration of minority language schools”4 and that there were
sufficient francophone children in Edmonton to attract such rights.
Kerans J.A., writing for the Court of Appeal, found that section 23(3)(b)
guarantees, where numbers warrant, an educational system “run by the minority
language group or its representatives.” 5 However, he went on to hold that there
were insufficient numbers of section 23 students in the Edmonton area to
engage those rights.
M. The Supreme Court Decision
Dickson C.J. wrote the reasons for a unanimous Supreme Court. He con-
cluded that section 23 encompassed rights of management and control. But,
after examining the specific situation in Edmonton, he held that there were not
enough students to warrant the establishment of a separate francophone school
board. Nonetheless, he said that francophones must have guaranteed represen-
tation on existing school boards and have a substantial amount of exclusive
authority in relation to minority language education.
Unlike most judges who had considered the issue,6 the Chief Justice
declined to read section 23 as involving two levels of rights –
one relating to
instruction and one relating to facilities –
that would be triggered by different
numerical thresholds. Rather, he endorsed a “sliding scale” approach,7 with sec-
tion 23(3)(a) and its reference to “instruction” representing the lower end of the
scale and section 23(3)(b) representing the upper end of the range. The rationale
for that approach was described as follows:
In my view, it is more sensible, and consistent with the purpose of section 23, to
interpret section 23 as requiring whatever minority language education protection
the number of students in any particular case warrants. Section 23 simply man-
dates that governments do whatever is practical in the situation to preserve and
promote minority language education.8
Turning to the central issue in the case, Dickson C.J. found that the words
of section 23(3)(b) supported the notion that the section mandates management
and control. He reasoned that the right to “instruction” in section 23(3)(a)
4(1985), 64 A.R. 35, 22 D.L.R. (4th) 24 at 50 (Alta. Q.B.).
5(1987), 42 D.L.R. (4th) 514 at 537, 6 W.W.R. 331 (Alta. C.A.).
6See, for example: Reference Re Education Act of Ontario and Minority Language Education
Rights (1984), 47 O.R. (2d) 1, 10 D.L.R. (4th) 491 (Ont. C.A.); Commission des Ecoles Fran-
saskoises v. Saskatchewan (1988), 48 D.L.R. (4th) 315, 3 W.W.R. 354 (Sask. Q.B.); and Reference
Re Minority Language Education Rights (P.EJ.) (1988), 69 Nfld. & P.E.I.R. 236 (P.E.I. C.A.).
7Mahe, supra, note 2 at 366. The “sliding scale” approach as such was not argued during the
appeal. The concept appears to come from D. Rdaume & L. Green, “Education & Linguistic Secu-
rity in the Charter” (1989) 34 McGill L.J. 777, which was published after the appeal was argued.
However, the Chief Justice does not cite that article.
8Mahe, ibid. at 367.
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implicitly must include a right to facilities. Instruction must take place some-
where. Therefore, according to the Chief Justice, the term “minority language
educational facilities” in section 23(3)(b) would be entirely superfluous unless
it encompassed a degree of management and control. Thus, “facilities” was not
to be read merely as a reference to physical structures.9
Dickson C.J. then went on to argue that the overall purpose of section 23
strongly supported his interpretation of the text. He said that purpose was “to
preserve and promote the two official languages of Canada, and their respective
cultures”‘” by ensuring that both French and English flourished in those juris-
dictions where they were not spoken by the majority of the population.” Man-
agement and control of minority language educational facilities, said the Chief
Justice, is essential to further the purpose of section 23. A variety of manage-
ment issues in education can affect linguistic and cultural concerns and the
health of minority language and culture can be affected by decisions relating to
such issues. Moreover, history was said to establish that the minority language
community cannot rely on the majority to reflect their concerns. Dickson C.J.
concluded that a lack of francophone participation on school boards had opened
the door for various historical setbacks experienced by francophones. 2
The Chief Justice next defined the content of the right to management and
control. He began by noting that an independent minority language school board
would be required to satisfy the purpose of section 23 when there were substan-
tial numbers of qualified students. However, where the number of students was
smaller, other approaches involving exclusive authority within a majority lan-
guage school board could be appropriate. In such circumstances, section 23
could be satisfied by guaranteeing that linguistic minorities were represented on
existing school boards and that they had control over “those aspects of educa-
tion which pertain to or have an effect on their language and culture.’ 3 The sit-
uation was described more specifically in the following terms:
(1) The representation of the linguistic minority on school boards or other public
authorities which administer minority language instruction or facilities should be
guaranteed;
(2) The number of minority language representatives on the board should be, at a
minimum, proportional to the number of minority language students in the school
district, i.e., the number of minority language students for whom the board is
responsible;
(3) The minority language representatives should have exclusive authority to make
decisions relating to the minority language instruction and facilities, including:
91bid. at 369-370.
10lbid. at 362.
“Ibid. at 362; see generally ibid. at 362-365, 371-373.
121bid. at 372.
131bid. at 375.
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(a) expenditures of funds provided for such instruction and facilities;
(b) appointment and direction of those responsible for the administration of
such instruction facilities;
(c) establishment of programs of instruction;
(d) recruitment and assignment of teachers and other personnel; and
(e) making of agreements for education and services for minority language
pupils. “‘
Finally, although the judgment is not entirely clear on the point, it appears
the Chief Justice was also of the view that it may not be necessary to afford
minority language parents any rights of management and control when numbers
of eligible students are very small. 5
IV. Commentary
The reasoning in Mahe is marked by a number of weaknesses. Those
weaknesses highlight the extent to which the Court shaped its analysis in order
to reach a conclusion favouring management and control. In that regard, the
most revealing aspects of the judgment concern two issues: (a) the purpose of
section 23; and (b) the text of the section.
A. Purpose of Section 23
The Supreme Court has often endorsed the interpretational approach out-
lined in R. v. Big M Drug Mart6 to the effect that, while Charter rights should
be interpreted generously, it is important not to exceed the actual purpose of the
provision in issue. Rights and freedoms are to be placed in their “proper linguis-
tic, philosophic and historical context”‘” and understood “in light of the interests
[they were] meant to protect.”‘” Further, with respect to language rights in par-
ticular, the Court has adopted an especially restrained interpretational approach.
As Beetz J. said in Socit6 des Acadiens du Nouveau-Brunswick Inc. et al. v.
Association of Parents for Fairness in Education:
Unlike language rights which are based on political compromise, legal rights tend
to be seminal in nature because they are rooted in principle … [Language rights]
although some have been enlarged and incorporated into the Charter, remain
nonetheless founded on political compromise. This essential difference between
the two types of rights dictates a distinct judicial approach with respect to each.
More particularly, the courts should pause before they decide to act as instruments
of change with respect to language rights. This is not to say that language rights
provisions are cast in stone and should remain immune altogether from judicial
’41bid. at 377.
151bid. at 367.
16[1985] 1 S.C.R. 295 at 344, 3 W.W.R. 481 [hereinafter Big M Drug Mart cited to S.C.R.].
’71bid. at 344.
18Ibid.
1991]
COMMENTS
interpretation. But, in my opinion, the courts should approach them with more
restraint than they would in construing legal rights.’ 9
Not surprisingly, the Attorney General of Alberta commended Socit6 des
Acadiens to the Court as describing the appropriate interpretational technique to
use in analyzing section 23.20 The Chief Justice accepted the warning of Beetz
J. that courts should be careful in interpreting language rights. He also said that
courts were nonetheless under an obligation to breathe life into the “expressed
purpose”‘2 of section 23.
However, the Chief Justice then disregarded the interpretational principles
he and the Court had endorsed. The history and background of minority lan-
guage education in general, and of section 23 in particular, had been the subject
of extensive analysis in both written and oral argument before the Court. That
background was essential to establish the purpose of section 23. Chief Justice
Dickson presented no consideration of it in his decision. Instead, he referred
only to the legislative debates leading up to the introduction of section 23. He
summarily concluded that those debates “contribute[d] little to the task of inter-
preting [the section]” and placed no weight on them.22 However, that evidence
was only a small part of the relevant history. The overall historical context that
inspired section 23 was ignored by the Court.
As a result, the Chief Justice failed to canvass satisfactorily the background
which would have informed the “express purpose” of section 23 to which he
had referred earlier in his reasons. Equally, he failed to come to grips with the
nature of the “political compromise” which was the centerpiece of the analytical
approach described by Beetz J. in Socit6 des Acadiens.’ Indeed, he failed to
properly establish the “historical context” of the right which he himself had said
was crucial in Big M Drug Mart. These omissions took him well away from the
basic interpretational techniques that had been endorsed by the Court.
Failure to employ established principles of interpretation enabled the Chief
Justice to define the purpose of section 23 in the broadest terms possible. He
said the section was intended to “preserve and promote minority language and
culture throughout Canada”24 and that minority language parents should have
19[1986] 1 S.C.R. 549 at 578, 27 D.L.R. (4th) 406 [hereinafter Socidtg des Acadiens cited to
S.C.R.].
20See Mahe, supra, note 2 at 364.
21bid. at 365.
22Ibid. at 369.
23The approach in Socijtg des Acadiens has been subject to criticism. See, for instance, L. Green,
“Are Language Rights Fundamental” (1987) 25 Osgoode Hall L.J. 539 at 644ff. An undercutting
of it will be welcomed in many quarters. My point is simply that the Court failed to faithfully apply
any settled interpretational technique.
24Mahe, supra, note 2 at 371.
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rights of management and control because such rights would advance the over-
all objective of the section.
However, the Court’s characterization of the purpose of section 23 does not
reflect accurately the place of the section in the historical debate on minority
language education. The key issue in that debate has been the simple availabil-
ity of minority language education. This is clearly illustrated by an examination
of the background against which section 23 was enacted.
The formal roots of the section extend back at least as far as the Report of
the Royal Commission on Bilingualism and Biculturalism. The Commission
recognized the role of education in protecting minority language groups and
stressed the importance of providing minority language education across the
country. But it rejected the concept of separate school boards for majority and
minority language instruction.26 Later, in 1969, a federal constitutional paper
entitled The Constitution and the People of Canada proposed granting individ-
uals the right to choose English or French as a language of instruction in areas
where there were sufficient numbers of persons to warrant the provision of
facilities.2 There was no reference to management and control.
The next significant step toward section 23 was the St. Andrews Agreement
of 1977. All premiers undertook to “make their best efforts to provide instruc-
tion in English and French wherever numbers warrant.” ’28 In 1978, the premiers
met in Montreal and agreed on a somewhat more detailed set of principles
respecting “availability of, as well as accessibility to”29 minority language edu-
cation. The Montreal Agreement specifically recognized that the implementa-
tion of these principles would be defined by each province.” Guarantees of
minority language educational rights were also contained in the 1978 federal
Constitutional Amendment Bill.3 Section 21 of the Bill contained detailed pro-
visions for determining when parents would have the right to have their children
educated in publicly financed facilities. Once again, there was no reference to
management and control.
2Canada, Report of the Royal Commission on Bilingualism and Biculturalism, Book I (Ottawa:
Queen’s Printer, 1967) (Co-chairs: A.D. Dunton and A. Laurendeau); Book II (Ottawa: Queen’s
Printer, 1968).
5) Canadian Constitutional Conference (1969) at 22 & 54-57.
ibid., Book I at 123 & 148; Book II at 141-59, 165-72 & 299-301.
‘See
27See Government of Canada, The Constitution and the People of Canada (Working Paper No.
28Statement on Language, Premiers’ Conference, August 18-19, 1977, St. Andrews.
291bid.
30Statement on Language, Premiers’ Conference, February 22-23, 1978, Montreal [hereinafter
Montreal Agreement]. Mr. Chr6tien described section 23 as a direct reflection of the Montreal
Agreement: See Canada, Special Joint Committee of the Senate and of the House of Commons on
the Constitution of Canada, Minutes of Proceedings [hereinafter Special Joint Committee],
November 7, 1980 at 2:41 and Canada, House of Commons, Debates at 3286 (October 6, 1980).
31Bill C-60, Constitutional Amendment Act, 3d Sess., 30th Parl., 1978 [hereinafter “the Bill”].
1991]
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In 1980, notwithstanding the St. Andrews and Montreal agreements, sev-
eral anglophone provinces still offered no legislative entitlement whatsoever to
French language instruction.32 (Indeed, that appears to remain the case today in
at least one province.3 ) Not surprisingly, francophone language rights activists
focused on the need for instruction.
More importantly, Bill 101′ in Quebec had denied anglophones the oppor-
tunity to send their children to school in English. The need to address that sit-
uation was the root motivation behind section 23. As the Supreme Court itself
said in A.G. Quebec v. Quebec Association of Protestant School Boards:
The framers of the Constitution unquestionably intended by section 23 to establish
a general regime for the language of instruction, not a special regime for Quebec;
but in view of the period when the Charter was enacted, and especially in light
of the wording of section 23 of the Charter as compared to that of sections 72 and
73 of Bill 101, it is apparent that the combined effect of the latter two sections see-
med to the framers like an archetype of the regimes needing reform, or which at
least had to be affected, and the remedy prescribed for all of Canada by section
23 of the Charter was in large part a response to these sections. 35
In Mahe, the Court offered no consideration of that general historical back-
ground. Rather, the Chief Justice simply began with the direct observation that
“the general purpose of section 23 is clear”36 and went on to describe that pur-
pose in broad and abstract terms.
The Chief Justice also emphasized the “remedial purpose” of section 23 by
noting that minority language groups cannot rely on the majority to accommo-
date their linguistic and cultural needs. He endorsed views expressed by the
Courts of Appeal in Ontario and Prince Edward Island to the effect that setbacks
experienced by minority language communities occurred because they did not
participate in management and control of education. The situations which had
been the focus of comment by the Ontario Court of Appeal concerned incidents
where English-dominated Boards of Education had refused to establish French
language schools. The Court apparently saw the connection between the lack of
management and control and the denial of minority language education as a rea-
son for finding management and control in section 23. Dickson C.J. observed
that minority language groups must have a measure of management and control
“if s. 23 is to remedy past injustices and ensure that they are not repeated in the
future. 3 7
32Newfoundland, British Columbia and Prince Edward Island are examples. More generally, see
The State of Minority Language Education in the Ten Provinces of Canada, A Report by the Coun-
cil of Ministers of Education (Toronto: Council of Ministers of Education, 1978).
33As of August, 1990, there was no effective legislative entitlement to French language instruc-
tion in Newfoundland.
34Charter of the French Language, R.S.Q. 1977, c. C-11 [hereinafter Bill 101].
35[1984] 2 S.C.R. 66 at 79-80.
36Mahe, supra, note 2 at 362.
371bid. at 372-73.
McGILL LAW JOURNAL
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The Court chose to overlook a fundamental point when it said that manage-
ment and control must be read into section 23 because the historical absence of
these rights had led to a failure to provide minority language education. Section
23 itself guarantees minority language instruction and facilities. Minority lan-
guage groups no longer need political influence or control of school boards to
get instruction and facilities. They have a constitutional right to them which can
be enforced in court if necessary. The very purpose of section 23 was to break
the link between the availability of minority language education and political
control of school boards or legislatures.
Thus, it seems clear that the purpose and focus of section 23 would have
been more appropriately stated in more concrete and specific terms than those
chosen by the Chief Justice. As the section itself says, it is aimed at guaran-
teeing rights to primary and secondary education in the official minority lan-
guage of each province. The preservation of cultural and linguistic integrity is
not the direct object of section 23. The availability of minority language educa-
tion will have an impact on assimilation but that is the effect of the section rather
than its immediate purpose. Section 23 can easily become over-inflated if it is
seen as being aimed directly at guaranteeing linguistic and cultural vitality.
B. The Text
The Court’s endorsement of a broad purpose for section 23 allowed it to
place an extremely liberal interpretation on the specific text of the section. Sec-
tion 23(3)(a) stipulates that the right to “instruction” applies wherever the
number of students is sufficient to warrant that instruction be provided out of
public funds. Section 23(3)(b) states that the right to instruction includes, where
numbers warrant, the right to receive that instruction in “minority language edu-
cational facilities.” The key to Chief Justice Dickson’s conclusion on manage-
ment and control involves a comparison of these two paragraphs. As noted, he
reasoned that because “instruction” necessarily implies “facilities,” then the ref-
erence to “facilities” must be read as encompassing a degree of management
and control.
However, the reference in section 23(3) to “instruction” and in section
23(3)(b) to “facilities” offers no convincing basis for discovering management
and control. On its face, there is nothing in the textual logic of section 23 to
require a finding of such rights. The specific references to “instruction” and
“facilities” appear to be nothing more than an effort to ensure that both matters
are comprehended by the section. At the same time, one would expect that an
entitlement as significant as “management and control” would be stated
expressly. The result in Mahe diverges widely from that suggested by a straight-
forward reading of the text.”8
38The Chief Justice also placed some emphasis on the French version. However, that textual
analysis is not particularly compelling either. See B. Schwartz, “The Other Section 23” (1986) 15
1991]
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An examination of the legislative history of section 23 confirms that it was
intended to bear its plain meaning. The original draft text of section 23
described a constitutional obligation to provide “minority language educational
facilities” out of public funds.39 That wording was criticized by the Commis-
sioner of Official Languages on the basis that it was too restrictive. He pointed
out that it did not impose any obligation to provide instruction when, by virtue
of television or other new technologies, there would be situations where instruc-
tion would be feasible even if the construction of “facilities” was not.4″
The Government responded to these criticisms by deleting all reference to
“facilities” and amending section 23 so that it referred only to the provision of
“minority language instruction” out of public funds.4′ However, those amend-
ments were attacked on the basis that they did not solve the problem that the
Commissioner had described.42 There should be a specific obligation to provide
both instruction and facilities. The authorities should not be allowed to use new
technology as a way of avoiding the construction of traditional school buildings.
As a result, more amendments were made. The final version of the section sep-
arated the entitlement to “instruction” from the entitlement to “facilities” in a
final effort to meet the criticisms being expressed.43 There was no suggestion
that the modified language included rights of management and control.
Indeed, some witnesses who appeared before the Joint Committee specif-
ically criticized the draft text of section 23 because it did not provide for man-
agement and control.” However, the Committee rejected demands that such
guarantees be included. Several statements by Committee members are directly
on point and are inconsistent with the notion that there was an intention to pro-
vide management and control.45 It is rather clear that such control was to be
excluded from the constitutional framework.
Man. L.J. 347 at 354; Reference Re Public Schools Act of Manitoba (1990), 2 W.W.R. 289 at 333
(Man. C.A.) per Monnin C.J.M.
39Canada, House of Commons, Proposed Resolution for Joint Address to Her Majesty the Queen
Respecting the Constitution of Canada, Debates, October 6, 1980, p. 3286 (the Hon. J. Chrdtien,
Minister of Justice).
4Special Joint Committee, supra, note 30, November 17, 1980, at 6:14; 6:20.
4Possible amendments to Proposed Resolution for Joint Address to Her Majesty the Queen
Respecting the Constitution of Canada, tabled before the Special Joint Committee on January 12,
1981 (the Hon. Jean Chr~tien, Minister of Justice).
42See Special Joint Committee, supra, note 30, January 15, 1981 at 38:37-38; 38:107-109 and
January 20, 1981 at 41:40.
43See ibid., January 29, 1981 at 48:108-10.
44See ibid., November 17, 1980 at 6:13,23; November 18, 1980 at 8:47-52; November 21, 1980
at 8:10, 27; November 25, 1980 at 12:11 and 12:23-24; November 26, 1980 at 13:30.
45See, for example, ibid. per Mr. Chr6tien, November 13, 1980 at 4:22, January 15, 1981 at
38:109; January 29, 1981 at 48:103 and 48:110-111; Mr. Lapierre, M.P., November 19, 1980 at
8:47.
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Therefore, it is apparent that the wording of section 23(3)(b) was not
inspired in any way by an attempt to guarantee management and control. The
section was drafted, as its plain language suggests, to ensure that minority lan-
guage students could receive “instruction” and “facilities” as numbers war-
ranted. The underlying bases for those guarantees were simple. First, the avail-
ability of minority language education, not the lack of management and control,
was the central problem facing minority language communities. Second, with
the advance of technology, it was recognized that instruction would be feasible
in situations where there were not enough students to warrant the construction
or provision of a physical school plant. The Chief Justice’s basic assumption in
analyzing the text of section 23 was simply incorrect. It is possible to have
instruction without educational facilities in the regular sense. That is precisely
why the present wording of section 23 was chosen. The section was not drafted
as a subtle invitation to find rights of management and control. Rather, it was
intended to reflect technological reality. Neither legislative background nor lin-
guistic logic effectively supports the reading of the text of section 23 that was
endorsed by the Court.
Conclusion
There is no easy or obvious congruence between the substantive result in
Mahe and either the text of section 23 or the history of minority language edu-
cational rights in Canada. The section speaks rather plainly of “instruction” and
“facilities.” Those two matters have been the central preoccupations of Cana-
dian minority language groups. Yet, the Supreme Court invested section 23 with
a generous and complicated entitlement for minority language communities to
control those aspects of education which relate to minority language and
culture.
Mahe is obviously not the first decision in which the Supreme Court has
taken an activist approach to Charter interpretation.46 Moreover, constitutional
adjudication, by its nature, can never be a sterile exercise in logic. Mahe is
nonetheless exceptional because of the extent to which the Court was prepared
to adjust its analytical approach, its reasoning and its treatment of the historical
facts in order to secure particular substantive results.
As noted, there is little doubt that the decision will work to the benefit of
minority language communities and that it responds to their concerns.47 It fits
comfortably with the prevailing Canadian model of bilingualism. But, Mahe
46See Reference Re Section 94(2) of the B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at 504-509,
[1986] 1 W.W.R. 481.
47There will no doubt be some concern in minority language communities that the number of
students required to trigger the entitlement to an independent school board, as determined by the
Court, is unacceptably high.
1991]
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227
also demonstrates the extent to which the reasoning and conclusions of the
Supreme Court can be driven directly by specific constitutional policy
objectives.
