Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment) 2021 NWTCA 82023 SCC 31 (39915) 

“Five parents not holding the right guaranteed by s. 23 of the Charter to have their children receive instruction in one of the two official languages, where it is the minority language, applied to the Minister of Education, Culture and Employment of the Northwest Territories (“Minister”) for their children’s admission to a French first language education program. In each case, the Commission scolaire francophone des Territoires du Nord‑Ouest (“CSFTNO”) recommended admission because it would promote the development of the Francophone community of the Northwest Territories. In spite of those recommendations, the Minister denied each of the applications for admission on the ground that the non‑rights holder parents did not meet the conditions established by the ministerial directive on enrolment in French first language education programs, which created categories of eligible non‑rights holders.

The parents and the CSFTNO applied for judicial review. They were successful in the Supreme Court of the Northwest Territories, which set aside the decisions and referred the applications for admission back to the Minister for reconsideration, chiefly because the Minister’s decisions did not reflect a proportionate balancing of the protections conferred by s. 23. However, on appeals by the Minister, the Court of Appeal for the Northwest Territories restored the decisions that had been set aside. The majority of the Court of Appeal found that the Minister was not required to consider s. 23 in exercising her discretion because the parents were not rights holders under this provision.”

The SCC (7:0) allowed the appeal.

Justice Côté wrote as follows (at paras. 2-5, 7-9):

“Section 23 has two features that make it stand out from the rest of Canada’s constitutional landscape. First, unlike certain other constitutional provisions that impose only negative obligations, s. 23 imposes positive obligations on the state. This is the case because the very existence of s. 23 “implies the inadequacy of the present regime” (Mahe, at p. 363, quoting Mahe v. Alberta (1987), 42 D.L.R. (4th) 514 (C.A.), at p. 534, per Kerans J.A.; Conseil scolaire francophone de la Colombie‑Britannique, at para. 15). Section 23 is therefore meant to alter the status quo, and its application “will of necessity affect the future of minority language communities” (Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201, at para. 23).

Second, s. 23 differs from other provisions of the Charter because of the collective scope of the individual rights it grants (Arsenault‑Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at paras. 27 and 29; Doucet‑Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 23; Solski, at para. 33; Quebec (Education, Recreation and Sports) v. Nguyen, 2009 SCC 47, [2009] 3 S.C.R. 208, at para. 23; Conseil scolaire francophone de la Colombie‑Britannique, at para. 17).

It is important to note that minority language schools play a vital role in fulfilling the promise contained in s. 23 of the Charter, which is to “give effect to the equal partnership of the two official language groups in the context of education” (Arsenault‑Cameron, at para. 26; see also Mahe, at p. 364; Association des parents de l’école Rose‑des‑vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139, at para. 27). These schools are settings for socialization where the language of minority language communities is passed on and where their culture can be expressed. The preservation and vitality of these educational environments promote the development of the minority language communities they serve (Mahe, at p. 363; Conseil scolaire francophone de la Colombie‑Britannique, at para. 1).

There has been a Francophone presence in the Northwest Territories since the 18th century, but instruction in French has been offered only since 1989 in Yellowknife and since 1998 in Hay River. This appeal is about whether the refusal to admit children of non‑rights holder parents to minority language schools in the Northwest Territories gave due consideration to the protections conferred by s. 23 of the Charter, having regard to the three purposes of this section, which is at once preventive, remedial and unifying in nature.

…it remains important for this Court to determine what role, if any, s. 23 had to play in the Minister’s decision‑making process. If this Court does not intervene, it might be argued that governments need not give due consideration to the values reflected in the three purposes of s. 23 when making decisions that affect s. 23 rights holders or that engage this provision.

For the reasons that follow, I conclude that the Minister was required not only 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, but also to conduct a proportionate balancing of these values and the government’s interests. Since she did not do so, I am of the view that the appeal should be allowed and the orders made by the Court of Appeal set aside on the basis of this first ground of appeal. As a second ground of appeal, the appellants allege that their right to use French, guaranteed to them by s. 19(1) of the Charter and s. 9(1) of the Official Languages Act, R.S.N.W.T. 1988, c. O‑1 (“OLA”), was infringed by the Court of Appeal because they could not be understood by that court without an interpreter. In the alternative, they argue that their right to natural justice was infringed because of the quality of the interpretation services. Given my conclusion on the first ground of appeal, I am of the view that it is neither necessary nor appropriate for me to rule on this second ground.”