Minister should have considered Charter rights of parents denied access to NWT French schools: SCC

In exercising her discretion on whether to admit five non-francophone students into the territory’s French-language schools, the Northwest Territories’ Minister of Education, Culture and Employment was required to consider s. 23 of the Charter, the Supreme Court has found.

The SCC released its decision this morning in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 3. The case dealt with five parents whose children were denied access to French-language education because they did not qualify as rights holders under s. 23.

In provinces and territories where the majority official language is English, s. 23 gives Canadians the right to have their children educated in French if they meet one of three requirements. Either their first language must be French, they must have received primary education in French at a Canadian school, or they must have a child who received primary or secondary education in French at a Canadian school. Not falling under any of these categories, the Minister decided that s. 23 did not apply to the five parents.

^{Darius Bossé}

“The court clearly says that ministers of education and other ministers across the country have to bear in mind the provision whenever they make any decision that has an impact on the right to be instructed in the official language of the minority,” says Darius Bossé, counsel for one of the appellant parties and partner at Juristes Power.

Justice Suzanne Côté, who penned the reasons for the unanimous court, said that in addition to considering the Charter provision, the minister was required to “conduct a proportionate balancing of the values reflected in the three purposes of s. 23 with the government’s interests.”

“The court says ministers have to think about the object and the purpose of s. 23, which is to preserve and promote the official language minority,” says Bossé.

He says the ruling’s impact is that whenever provincial ministries make a discretionary decision, they must determine whether it will affect the provision of French instruction in their province or territory. If it does, he says, the ministry must weigh whether the effect on the right is proportionate with the purpose the ministry is trying to achieve.

Côté followed the framework from Doré v. Barreau du Québec, 2012 SCC 12, which she said governs the judicial review of discretionary administrative decisions dealing with a Charter right. Doré requires that courts determine whether the decision limits Charter protections or engage values underlying a Charter right. The court then must examine the decision-maker’s reasoning to evaluate whether their decision proportionately balances Charter rights and values. For their decision to be reasonable, it must be apparent that the decision-maker considered the relevant Charter values and meaningfully addressed the Charter protections to reflect the impact of their decision.

Côté said s. 23 has three purposes: to prevent the erosion of “official language communities,” to promote the development of these communities, and redress past injustices. Therefore, the values underlying the provision include preservation and development of minority language communities. Denying non-rights holders access to French-language schools in the Northwest Territories can impact the preservation and development of the French community in the territory, so the Minister’s decisions limited the underlying values of preservation and development.

While the Minister was required to proportionately balance those values, her reasons do not demonstrate that she “truly took into account the constitutional values at stake or that she meaningfully addressed the considerations arising therefrom,” said Côté.

The decision also reaffirms that the Doré framework is “alive and well,” says Bossé. Following Canada (Minister of Citizenship and Immigration) v. Vavilov, the landmark decision on standard of review, it was unclear whether the SCC would eventually change the Doré framework. The SCC’s decision in Commission scolaire francophone des Territoires du Nord-Ouest shows it is still applicable law in judicial reviews for Charter values, he says.

The Commission scolaire francophone des Territoires du Nord‑Ouest (CSFTNO) had recommended the children’s admission because it would promote the development of the territory’s Francophone community. The Northwest Territories adopted a Ministerial Directive in 2016, which made non-rights holder parents eligible for French education if they would have been a rights holder but lacked an opportunity to attend a French school, are a non-citizen Francophone, or a new immigrant and their child does not speak English or French and is enrolling in a Canadian school for the first time. The Minister denied the parents’ request because they did not meet the conditions of the Ministerial Directive.  

The parents and the CSFTNO successfully sought judicial review of the Minister’s decisions, and the Supreme Court of the Northwest Territories set it aside and referred the matter back to the Minister for reconsideration. But a split Court of Appeal restored the Minister’s decisions. The appeal court’s majority found that the Minister was not required to consider s. 23 in exercising her discretion because the parents were not rights holders under the provision.

The SCC allowed the appeal brought by the parents and the CSFTNO. The court found that the Minister was required to consider s. 23 when deciding whether to admit the children.