Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 5 minutes.

Latest News

  1. The SCC is releasing its decision in A.B. v Northwest Territories (Minister of Education, Culture and Employment) on Friday, Dec. 8. At issue is s. 23 of the Charter, the right to attend minority language schools, and how administrative decision-makers are to consider the Charter.
  2. On Dec. 1, the SCC released its decision in R. v. Zacharias, 2023 SCC 30. The Court (3:2) dismissed the appeal, ruling that evidence seized following a series of Charter breaches should not be excluded.
  3. 79% of players correctly predicted the Zacharias appeal would be dismissed.

Head over to Fantasy Courts to lock in your predictions for this week’s decision or read more about the cases below.

Right to Attend French-language Schools

Appeal by leave from A.B. v Northwest Territories (Minister of Education, Culture and Employment), 2021 NWTCA 8

SCC factums & webcast of hearing

What Happened?

Background: The Minister of Education, Culture and Employment of the Northwest Territories denied six applications for admission to French-language schools made by non-rights holder parents. The ineligibility of their children was assessed according to the criteria established in a ministerial directive on the enrolment of students in French-language education programs. Because none of the criteria in the directive applied in the circumstances, the parents asked the Minister to exercise her residual discretion to authorize the admission of the six children concerned. The Minister denied the request.

At Trial: The non-rights holder parents and the school board applied for judicial review of the Minister’s decisions. In two judgments, the Northwest Territories Supreme Court set aside the Minister’s decisions on the ground that there had been no proportionate balancing of the protections guaranteed by s. 23 of the Charter and the government’s interests.

At the Court of Appeal: The majority of the Court of Appeal allowed the Minister’s appeals and restored her decisions. The court found that the chambers judge’s reasoning on constitutional values had proceeded on the mistaken assumption that the case involved constitutional rights. The families in question did not qualify under s. 23 because they were not rights holders, and they therefore had no legal or statutory right or expectation to have their children attend the French-language schools.

What Was Argued at the SCC?

Appellants: The Territories has suffered from a historical absence of minority language schools. It is reasonable for minority schools to admit a small number of non-minority students and this is an important element of revitalizing the minority. The admission of non-rights holders helps promote cultural diversity of French-speaking schools. The decision to refuse admission was unreasonable.

Respondent: Courts have been clear that the government has the competence to control the registration of children of non-right holders under s. 23 of the Charter. The decision to refuse admission here was in accordance with the directive which was properly made. The directive reflects an interest in increasing access to minority language schools, but appropriately does not go so far as to establish a system of educational free choice.

What Else Should You Know Before Making a Prediction?

I’m leaning towards appeal dismissed primarily on the basis of deference being afforded to the Minister’s decision, but French language rights proponents have historically had a lot of success at the Supreme Court. This case has attracted quite a bit of attention and for an interesting analysis on the implications this case has for Doré/Loyola framework for how Charter issues are dealt with in the adminstrative context, see Adam Schenk’s article “AB v Northwest Territories: A New Low for the Doré/Loyola Framework” published in the Constitutional Forum journal.

Previous Predictions: Grant Test for Excluding Evidence

On Dec. 1, 2023, the SCC released its decision in R. v. Zacharias, 2023 SCC 30.

Held (3:2): Appeal dismissed and the evidence not excluded.

Key Points:

  • The arrests and the searches incident to arrest following the sniffer dog search and investigative detention constituted breaches of the appellant’s rights under ss. 8 and 9 of the Charter.
  • Absent additional or independent state misconduct, a breach that is entirely consequential on an initial violation is unlikely to significantly increase the overall seriousness of the Charter‑infringing state conduct.
  • The focal point under s. 24(2) remains the initial breaches that set the sequence of state conduct into motion.
  • Although this was a panel of 5 judges hearing the appeal, there were three sets of reasons. Rowe and O’Bonsawin JJ. wrote the majority. Côté J. concurred in the result and found that additional Charter breaches had little impact on the s. 24(2) analysis.
  • Martin and Kasirer JJ. in dissent would have allowed the appeal. Cascading breaches necessarily result in more significant impacts on the Charter‑protected interests of an accused and must be given weight under the Grant analysis.

Predictions: Another strong week. 79% of players correctly predicted the appeal would be dismissed.

-Tom Slade

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