We offer the following observations and principles into this debate. On the one hand, the duty to fulfill the rights contained in section 23 of the charter falls squarely on the shoulders of the provinces. On the other hand, the enumeration of children of rights holders is a federal responsibility. Rightly or wrongly, section 91.6 of the Constitution Act, 1867 states that the census is exclusively under federal jurisdiction. Minority language educational rights are generally only available where numbers warrant. Linguistic minority communities always seek the largest descriptive number, provinces the lowest.
Even if it were realistic to rely on provincial and territorial governments to enumerate the children of section 23 rights holders, or rely on communities to self report these children, the data generated would be inconsistent with the goal of producing objective, credible and accurate data.
In our opinion, only Statistics Canada can enumerate the children of section 23 rights holders and produce data free from the perception of bias that will meet evidentiary standards and the legal test set by the courts.
We know, however, that many provinces—including Quebec—permit access to official language community schools beyond the scope of section 23. Whatever number Statistics Canada generates will therefore under-report eligibility in these jurisdictions.