Supreme Court of Canada Affirms Access to French Education for Non-Rights Holders in the Northwest Territories

In a landmark ruling, the Supreme Court of Canada has put an end to a protracted legal battle between the Northwest Territories’ French-Language School Board, the Commission scolaire francophone des Territoires du Nord‑Ouest (CSFTNO), and the Northwest Territories’ Minister of Education, Culture and Employment, revolving around the Minister’s authority to decide on the admission of non-francophone students to francophone schools.

The dispute first began in 2018 when the Minister rejected the admission of six students to the Territories’ only two francophone schools, École Allain St‑Cyr (Yellowknife) and École Boréale (Hay River), despite the endorsement of the French school board. These students, being the children of parents that are “non-rights holders,” do not directly benefit from the protection of section 23 of the Canadian Charter of Rights and Freedoms, a provision which guarantees minority language educational rights to French-speaking Canadians.

The CSFTNO sought judicial review of the decision in the Supreme Court of the Northwest Territories in 2018, who rejected the Minster’s decision, but the decision was later reversed in a successful appeal to the Court of Appeal of the Northwest Territories in 2021.

Now, the Supreme Court of Canada has intervened, siding with the Northwest Territories Supreme Court in the first instance and deeming the Minister’s decision unreasonable.

Justice Côté, writing the Court’s unanimous reasons, ruled that the Minister’s decision was unreasonable as it had a significant impact on the values enshrined in section 23 of the Charter, particularly the preservation and development of minority language communities, and did not proportionately balance these values with the government’s interests.

Interesting take-home points

Values of Section 23

The Supreme Court emphasized the importance of considering the values of section 23 of the Charter, which safeguards the rights of francophone children to access French education. Even though the children in question were not afforded the protection of section 23, the Supreme Court agreed that the Minister should have considered the values of preservation and development of minority language communities when making its decisions.

Importance of Developing the French-Language Minority Community

The ruling sheds light on a shift in the Department of Education’s approach. While past ministers had adopted a "restrictive" stance on admissions to French schools, a change in 2020 marked a shift towards a less restrictive approach, namely by allowing the CSFTNO to manage the existing admission scheme, and by creating a “francophile” category for children who have at least one parent who is proficient in French.

The Supreme Court’s decision marks a significant victory for the CSFTNO and underscores the importance of considering the values protected in section 23 of the Charter when determining access to French education. The ruling also sets a precedent for the inclusion of non-rights holders in the francophone school system, contributing to the preservation and development of minority language communities in the Northwest Territories.

Interestingly, and despite expectations, the Supreme Court did not address the Charter argument raised by the appellants concerning their right to use French in court without an interpreter. The court deemed this issue non-vital to the main dispute and opted to leave it for future consideration.

For further details on the Supreme Court's decision, you can refer to the official case brief, or the full decision.

Simon Barry is a bilingual lawyer who practises at Lawson Lundell in Yellowknife, and who previously attended École Boréale in Hay River.

  • Simon  Barry

    Simon is an associate in the Yellowknife office of Lawson Lundell and a member of the firm’s Litigation & Dispute Resolution Group. His practice focuses on general civil litigation and child protection in both the Northwest ...

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