Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31

Background

There are two public schools in the Northwest Territories that offer French-language education programs, and children of rights holders are eligible to attend in accordance with section 23 of the Canadian Charter of Rights and Freedoms (the Charter). According to a ministerial directive adopted in 2016 to help revitalize languages and cultures, some children of non-rights holders can apply for admission to the schools if they meet certain criteria. In addition to the criteria expressly set out in the directive, under this directive, the Minister of Education retained residual discretion to authorize the enrolment of the children of non-rights holders to these schools.

In 2018 and 2019, five families—for which the parents were non-rights holders and did not meet the directive’s criteria—tried to enroll their children in the school by asking the Minister to use her discretionary power to authorize the enrolment. The school board bolstered their requests. The Minister denied the requests, stating that since the families did not meet the criteria set out in the directive, their children could not be enrolled in the French school, and she refused to use her discretionary power.

This case raised the important question of whether—in reviewing cases that may affect rights guaranteed by the Charter—government officials can limit themselves to evaluating the explicit protections of the Charter’s provisions, or whether they must also consider the impact of their decisions on the values these provisions are intended to protect.

Trial decisions

At an initial trial hearing, the Supreme Court of the Northwest Territories overturned the Minister’s decision, ruling that she could not fetter her discretion by limiting herself to the categories listed in the directive. According to the Court, the Minister should have considered the purpose of section 23 and the rights of linguistic minorities, as well as the impact of a child’s admission on the vitality and development of communities. As a result, the Minister’s decision regarding a single child was quashed and referred back to the Minister.

Following this decision, the Minister reconsidered the first child’s application, as well as the applications of five other children, but refused to admit them all, as the motivation for the applications was simply for the children to learn French, and this objective was not sufficient to justify the financial impact of admission on the territory.

Following a second judicial review, the Supreme Court of the Northwest Territories concluded that all the Minister’s decisions were unreasonable. The Court ruled that the Minister had failed to consider the benefits of admission to the Northwest Territories’ French-speaking community and therefore had failed to properly balance the protections guaranteed by section 23 of the Charter against the interests of the government.

Court of Appeal decision

The Court of Appeal overturned the trial judge’s decisions, ruling that he had erred by considering the rights provided by section 23. According to the majority of the Court of Appeal, the Minister’s decision did not affect any rights protected under section 23, so there was no need to consider this section.

In addition to the debate on the merits, an issue arose before the Court of Appeal concerning the right of the lawyers representing the school board and the parents to be understood by the court in French in real-time. The lawyer, who chose to plead in French, claimed to have realized after the hearing that the English interpretation of his arguments the judges heard was of poor quality, which was problematic because not all panel members could understand French.

Supreme Court ruling

In its decision, the Supreme Court of Canada ruled that, in exercising her discretion and considering admitting non-rights holders to minority language schools, the Minister of Education of the Northwest Territories was required not only to consider the rights conferred by section 23 of the Charter, but also to balance the underlying values of that provision with the government’s objectives.

This decision will help prevent the ongoing linguistic erosion experienced by Canada’s official language minority communities and will support particularly vulnerable communities, such as those in the Northwest Territories. As the Supreme Court recognized, education in the official language of the linguistic minority is fundamental to the vitality of these communities, and minority language schools are the most important institutions for their survival and an invaluable source of information for governments.

Having granted the appeal on the issue of section 23 of the Charter, the Supreme Court of Canada declined to rule on whether the parties had the right to be heard by a Court of Appeal panel that understood French in real-time.