by Victoria Wright, J.D. Candidate 2025
Staff Writer, Seven/Fifty
February 8, 2024
On December 8, 2023, the Supreme Court of Canada held in Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment) that the Minister of Education, Culture and Employment of the Northwest Territories must consider the values underpinning section 23 of the Charter when exercising her discretion on whether to admit children of non-rights holder parents to French language schools.[1] This case reaffirmed important principles of constitutional law pertaining to both section 23 of the Charter and the framework for reviewing discretionary administrative decisions that engage Charter rights.
Section 23 of the Charter states that a defined category of Canadian citizens have the right for their children to receive education in one of the two official languages of Canada (English or French) where it is the minority language in the province they reside.[2] More specifically, this right applies to Canadian citizens “whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside” or “who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province.”[3]
Beginning in 2008, a series of directives, policies, and reports adopted by the Northwest Territories Department of Education, Culture and Employment outlined the rules pertaining to the admission of children to French first language education programs.[4] Under the 2016 directive,[5] the Minister had a residual discretion to admit children of non-rights holder parents to French language education programming in situations such as:
The child’s parent (or grandparent) would have been a rights holder but for their lack of opportunity to attend a French language school;
The child’s parent meets the criteria of section 23 except for the fact that they are not a Canadian citizen; or
The child’s parent is an immigrant and upon arrival, the child did not speak English or French and is enrolling in a Canadian school for the first time. [6]
In 2018 and 2019, five non-rights-holder parents requested that the Minister exercise her discretion to admit their children to a French language education program.[7] Each of the students had strong ties to their Francophone communities and was recommended for admission by the Commission scolaire francophone des Territoires du Nord-Ouest (“CSFTNO”) on the grounds that their admission would “promote the development of the Francophone community.”[8] The Minister denied all five applications for admission.[9]
In response, the CSFTNO and parents of the students denied admission sought judicial review of the Minister’s decision. At first instance, the Supreme Court of the Northwest Territories sided with the CSFTNO, ruling that the Minister was required to reconsider the applications.[10] However, the Court of Appeal for the Northwest Territories restored the Minister’s original decisions and found the Minister was not required to consider section 23 when exercising her discretion, since the parents were not section 23 rights holders.[11]
The applicants’ parents and CSFTNO then raised several grounds of appeal to the Supreme Court of Canada. The SCC overturned the Court of Appeal decision on the first ground of appeal (the Charter issue) and unanimously held that the Minister was required “to consider the values embodied in s. 23 in exercising her discretion to admit the children of non-rights holder parents to the schools of the Francophone minority in the Northwest Territories” along with conducting “a proportionate balancing of these values and the government’s interests.”[12] This decision reaffirms two important constitutional principles: the crucial role of Charter values in discretionary administrative decisions and the importance of minority language education rights.
Reaffirming the Need to Consider Charter Values in Administrative Decisions
In Doré c. Barreau du Québec, the Supreme Court of Canada (SCC) established a framework for reviewing discretionary administrative decisions that engage Charter rights.[13] The Doré framework requires administrative decisions that engage Charter rights to be reasonable – an analysis that requires two steps. Firstly, a court must ask whether an administrative decision has limited a Charter right or one of the underlying Charter values.[14] Secondly, the court must ask whether the decision struck a proportionate balance between the Charter right (or value) and the administrative body’s objectives.[15]
Did the Administrative Decision Engage the Charter?
While the government’s position in this case was that consideration of the values of section 23 of the Charter was not required as the parents were not section 23 rights holders, the SCC held that the Doré framework continues to apply in cases where an administrative decision indirectly engages the values underlying a Charter right.[16] Additionally, the CSFTNO was representing the direct interests of rights holders – the students.[17]
Though the SCC reaffirmed that there are several situations in which it is obvious that Charter values are engaged and that the Doré framework should be applied, the Court also articulated that the values underpinning section 23 are always relevant considerations in administrative decisions pertaining to minority language schools.[18] To quote a key passage of the Court’s judgment:
Thus, the decisions rendered by provincial and territorial governments regarding the admission of children of non‑rights holder parents to minority language schools, even when they do not directly infringe the right guaranteed by s. 23, can nevertheless have a significant impact on the preservation and development of minority language communities. It follows that these values are always relevant when the government exercises such a discretion and that they must therefore be taken into account. For the purposes of this appeal, this means that the Minister was required to consider the values of preservation and development of minority language communities in exercising her discretion to decide whether to admit children of non‑rights holder parents to the schools of the Francophone minority in the Northwest Territories.[19]
Was the Charter-Limiting Administrative Decision Reasonable?
Because the SCC held that the Minister’s decision limited the values of section 23 of the Charter, her decision was required to be reasonable according to the Doré framework. Ultimately, the SCC found that the decision was not reasonable, noting that the Minister failed to meaningfully and proportionately balance the values underlying section 23 of the Charter with the Minister’s statutory mandate pertaining to the admission of children with non-rights holder parents to French language education programs.[20]
Additionally, the Minister did not demonstrate that in her decision-making “she meaningfully addressed the values of preservation and development of the Francophone community of the Northwest Territories so as to reflect the significant impact that the decisions might have on it.”[21] Ultimately, the unreasonableness of the Minister’s decision stemmed from the fact that she “attached too much importance to her duty to make consistent decisions and, in doing so, gave disproportionate weight to the cost of the contemplated services in the exercise of her discretion.”[22]
Reaffirming the Importance of Minority Language Rights
The SCC also took the opportunity to reaffirm the importance of section 23 of the Charter, which it framed as having three purposes: a preventative purpose, a remedial purpose, and a unifying purpose.[23] Additionally, the SCC reaffirmed that minority language schools play an important role in Canada as they “give effect to the equal partnership of the two official language groups in the context of education and as settings that enable the passing on of language and the expression of culture.[24]
In assessing the reasonableness of the Minister’s administrative decisions, the SCC held that a narrow view of section 23 of the Charter would be “contrary to the remedial purpose of s. 23.”[25] The SCC confirmed that children of non-rights holder parents do in fact have a right to minority-language education if they can demonstrate a legitimate commitment to Francophone culture and language which would have considerable benefits for the “preservation and development of the language and culture of the minority language community.”[26]
Conclusion
Though this case lays emphasis on the important values underpinning section 23 of the Charter and reaffirms the significance of minority language rights, it is not new or innovative law. Rather, it merely reaffirms a legal framework — the Doré framework — that had already been reaffirmed in several other SCC decisions (see Law Society of British Columbia v Trinity Western University; Loyola High School v Quebec (Attorney General); Canada (Minister of Citizenship and Immigration) v Vavilov) without introducing any modifications or adjustments to it.[27]
Additionally, recognition of the importance of minority language rights does not introduce global access to minority official language education for all children in Canada. While this decision does require that applications for admission to language education programming be assessed meaningfully through the lens of section 23 of the Charter (including its underlying values), the SCC held that this “does not amount to imposing an obligation on decision makers … to admit all children of non-rights holder parents.”[28]
Ultimately, though Commission scolaire francophone does not introduce new or innovative law in Canada, it reaffirms important administrative law principles, including the role that Charter values ought to play in discretionary administrative decision-making.
[1] Commission scolaire francophone des Territoires du Nord-Ouest v Northwest Territories (Education, Culture and Employment), 2023 SCC 31 [Comission scolaire francophone].
[2] Canadian Charter of Rights and Freedoms, s 23, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[3] Ibid.
[4] Comission scolaire francophone, supra note 1 at paras 11-21.
[5] Note: the 2016 directive is no longer in force (ibid at para 22).
[6] Comission scolaire francophone, supra note 1 at para 17.
[7] Ibid at para 6.
[8] Ibid.
[9] Ibid.
[10] Ibid at para 7.
[11] Ibid.
[12] Ibid at paras 8-9 (Note: the SCC deemed that it was not appropriate to rule on the remaining grounds of appeal).
[13] Doré c Barreau du Québec, 2012 CSC 12 [Doré].
[14] Comission scolaire francophone, supra note 1 at para 61.
[15] Ibid at para 67.
[16] Ibid at paras 63-64.
[17] Ibid.
[18] Ibid at para 83.
[19] Ibid [emphasis added].
[20] Ibid.
[21] Ibid at para 102.
[22] Ibid.
[23] Ibid at para 1.
[24] Ibid at para 4.
[25] Ibid at para 84.
[26] Ibid at para 101.
[27] See e.g., Law Society of British Columbia v Trinity Western University, 2018 SCC 32; Loyola High School v Quebec (Attorney General), 2015 SCC 12; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.
[28] Ibid at para 103.