What does Section 23 of the Charter protect?

Section 23 of the Canadian Charter of Rights and Freedoms protects minority-language education rights. It guarantees the right of Canadian citizens whose first language learned and still understood is the minority official language of the province (or who have received their primary-school education in that minority language) to have their children receive primary and secondary instruction in that language, where the number of children of such citizens is sufficient to warrant the provision of the instruction. Section 23 also guarantees, where numbers warrant, the right to have their children educated in minority-language educational facilities provided out of public funds.

Section 23 has built minority-language school systems across Canada. The Supreme Court of Canada has interpreted the right purposively, recognising that the section was designed both to protect existing communities and to promote their development. Mahe v. Alberta (1990) recognised the right to minority-language management and control of minority-language schools where numbers warrant. Arsenault-Cameron v. Prince Edward Island (2000) addressed transportation and the role of minority-language school boards. Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (2020) held that the substantive equality of facilities is required even where numbers are smaller.

Each province operates a minority-language school system under the section 23 framework. Ontario's Conseil scolaire Viamonde, Quebec's English Montreal School Board, the Conseil scolaire francophone de la Colombie-Britannique, the Commission scolaire francophone du Yukon, and 27 other minority-language boards together serve about 200,000 students. The federal Official Languages Act of 1969 (modernised by Bill C-13 in 2023) supports section 23 with federal-provincial Action Plans for Official Languages, providing about $4 billion over five years (2023 to 2028) for minority-language education and second-language instruction.

Section 23 is one of the few Charter rights immune from override under section 33's notwithstanding clause. Together with sections 16 to 22 of the Charter (official-language rights at the federal level and in New Brunswick), section 133 of the Constitution Act, 1867 (English and French in Parliament and Quebec courts), section 23 of the Manitoba Act, 1870, and the Royal Proclamation of 1969 from Newfoundland, section 23 forms the constitutional framework for Canada's two official languages. Litigation continues, particularly around facilities, transportation, and the threshold for 'numbers warrant'.