Association des Parents ayants droit de Yellowknife et al. v Attorney General of the Northwest Territories et al

Background

Two similar proceedings were initiated, one regarding the government’s obligations towards the minority community in the city of Yellowknife^{Footnote 1}, and the other regarding the government’s obligations towards the minority community in the town of Hay River^{Footnote 2}.

Both disputes principally revolved around the adequacy and quality of the infrastructure provided by the GNWT for the French-language education programs in Yellowknife and Hay River, and the degree of autonomy and control the Commission scolaire francophone des Territoires du Nord-Ouest (CSFTN-O) should be able to exercise. In the proceeding involving the Hay River school, the Court also had to determine the respective rights of the government and the CSFTN-O regarding the establishment of admissions criteria for the French-language education program.

Since both proceedings raised related legal issues, the parties agreed to the hearings being held at the same time and on common evidence.

Adequacy of minority language education program in Hay River and in Yellowknife

From the outset, the Court used the Yellowknife English majority schools as a comparison group for the Yellowknife minority school, and the Hay River English schools as a comparison group for the Hay River minority school, because the English schools in the same region are the only real alternative for students enrolled in the minority school.

In the case at hand, it was undeniable, in the Court’s view, that there were significant differences, both in terms of spaces available and programming, between what was available in the majority English schools and what was available in the French minority school. To determine whether these differences violated section 23 of the Canadian Charter of Rights and Freedoms (Charter), the “sliding scale” approach had to be used, which the Supreme Court of Canada mentioned in Mahe^{Footnote 3} and Arsenault-Cameron^{Footnote 4} and involves taking into consideration the number of persons who could potentially take advantage of minority language education.

For both the Hay River and Yellowknife schools, the Court concluded that Statistics Canada census data on the number of children with a Francophone parent did not create an accurate portrait of the number of rights-holders. The Court raised the fact that children covered by section 23 under the other categories (a child with one parent who has received their primary school instruction in French or whose brother or sister has received or is receiving primary or secondary school instruction in French) were not included in the statistics. The Court also considered other sociological factors such as the high rate of assimilation in the Northwest Territories, a tendency toward under-identification of rights-holders, and the school’s admission policy that gave access to the program to people who were not specifically covered by section 23 of the Charter.

After concluding that the number of rights-holders was approximately 350 children for the Yellowknife school and 160 children for École Boréale in Hay River, the Court analyzed the adequacy of the existing infrastructures to accommodate these numbers. This analysis needed to be thorough, taking into consideration not only the comparison group, but also differences in the number of students, the educational needs of the minority, the importance of having separate school space and the costs.

The Court concluded the following:

• The capacity of the minority school had to be increased to take into account the number of students it may have to accommodate in the future. The capacity of the school had to be between that number and the existing demand;
• The schools should not have to negotiate the use of their specialized spaces (gymnasium, laboratory, music room, etc.) year after year. This was an acceptable arrangement, but only on a temporary basis. Specifically, the Court determined that the construction of a gymnasium was necessary to ensure substantive equality, along with a multi-purpose room that could be used for teaching visual and fine arts.

The right to manage admissions to the French education program

In the case of École Boréale in Hay River^{Footnote 2}, there was a disagreement between the Association des parents ayants droit de Yellowknife (Association) and the government regarding who held the power to determine the admission criteria for the minority language education program. In the Court’s opinion, the purpose of section 23, and particularly its remedial nature, as well as the case law regarding this section, suggest that the minority community should have the power to decide the admission criteria for the minority language education program, both for rights-holders and non-rights-holders. Therefore, it is not contrary to the purpose of section 23 that the minority community’s decision led to create rights for people who initially were not rights-holders, particularly in the context of the Northwest Territories where the assimilation rate is especially high. By doing this, the Court made a distinction in comparison to Nguyen^{Footnote 5} and Solski^{Footnote 6}, given the different context of Quebec, where the government must have enough latitude to protect the French language, which is a minority language in the country and on the continent.

Status of the daycares and pre-kindergarten program

The Court relied on the language of section 23 of the Charter to dismiss the argument that daycares and pre-kindergarten programs were protected by this provision. Even the most generous interpretations of “primary and secondary school” could not include these services.

That being said, the Court recognized that these programs are important tools for the implementation of section 23. It was therefore appropriate for a remedy to be granted under section 24 of the Charter following a failure to comply with section 23. The Court ordered the government to fund pre-kindergarten programs in Yellowknife and Hay River and the daycare at the Yellowknife school.

Autonomy of the French school board required under section 23 of the Charter

In both proceedings, the Association maintained that it was a violation of section 23 of the Charter to not delegate to the French school board the right to acquire and maintain buildings and lands, as well as the right to borrow money, including money on the security of a mortgage on the buildings and lands that it uses.

The Court rejected the automatic link between the need to create a minority language school board and the need to give this board the highest possible degree of management. This approach was too rigid in the Court’s view. The case law regarding section 23 of the Charter calls instead for flexibility. To determine the appropriate administrative autonomy, the number of targeted students has to be considered. In the case at hand, the evidence did not support the proposal that the number of students required the government to delegate the powers in question. The Court observed that no school board in the Northwest Territories has the degree of autonomy claimed in this matter.