In a decision released Friday morning, the Supreme Court of Canada unanimously ruled that the Premier of the Northwest Territories, Caroline Cochrane, wrongly refused the admission of five children of non-rights-holder parents to school French-speaking, while she was Minister of Education.
This judgment is the culmination of several years of legal proceedings, which opposed the French-speaking School Board of the Northwest Territories and the territories’ Ministry of Education.
The minister’s decisions were “unreasonable” and went against the values of section 23 of the Canadian Charter of Rights and Freedoms, which constitute “the maintenance and development of minority linguistic communities.” Mme Cochrane failed to carry out a “proportionate balancing of these values with the interests of the government”, we read in the judgment.
The refusals, which occurred between 2018 and 2019, were motivated by a “concern for fairness”, in order not to “welcome requests for admission” from all non-right holders, which “would impose too great a financial burden to the State,” defended the minister. Mme Cochrane had “clearly the right to take costs into account in his decision,” but “because of the remedial nature of section 23, educational needs weigh more heavily than costs,” ruled Justice Côté.
A rights holder is a person who has a constitutional right to a French or English school, under section 23 of the Charter.
The School Board not listened to enough
In the Northwest Territories, for a child of non-rights holder parents to be able to attend a school in French, the Commission scolaire francophone des Territoires du Nord-Ouest (CSFTNO) must evaluate and approve a request for admission from the parents, then recommend it to the Ministry of Education, which can then accept or reject the request.
The five cases affected by the judgment had been recommended by the CSFTNO, which judged that the admission of these children “would promote the development of the Franco-Ténoise community”. The latter already had a “good knowledge of French”, had “significant links with the community”, and “benefited[en]t support and commitment from [leurs] parents in learning this language.
According to the Supreme Court, the minister “did not duly take into account the support” of the CSFTNO. “Parents’ motivation […] has been erroneously reduced to a simple desire to provide their children with a linguistic advantage. »
Since the children concerned have “since been admitted to a Franco-Ténoise minority school, or have settled outside this region, it is not necessary” to return admission requests to the Ministry. “Following the unfavorable decisions”, however, a child “had to attend a French immersion school, which had a negative impact on his level of French”, we can read in the document.
“A strong legal basis”
According to the Federation of Francophone and Acadian Communities, there are many immigrant families who do not meet the definition of rights holder but have a good knowledge of French and are involved in the community. “The Supreme Court today gives us a strong legal basis to avoid blocking their path to French schools,” wrote the president, Liane Roy.
“It’s really promising for the future,” rejoices the director general of the National Commission of Francophone Parents (CNPF), Jean-Luc Racine. According to him, the judgment broadens and “clarifies” the notion of rights holder. “It simply says that if there is a newcomer who has the slightest interest and desire to integrate into the French-speaking community, we must necessarily integrate them into our schools and our communities. »
This decision “does not amount to imposing on decision-makers […] to admit any child of parents who are not rights holders,” specifies Me Côté in his judgment. “This does not amount to endorsing the free choice of language of instruction either,” which would imply systematic admission of children of non-rights-holder parents.”
The ministry retains its discretionary role, but it must now exercise it “in the spirit of article 23”, underlines the CNPF. “In other words, he must be a promoter, not someone who will restrict or prevent [l’application de] Article 23.”
Linguistic minority schools must also not “become “assimilation centers” by allowing the presence of children from the linguistic majority to overwhelm the children of the minority,” warns the Supreme Court. A risk that “does not really exist”, according to Mr. Racine. “On the contrary, I think that the more people we have who integrate our schools, the more French speakers we will have in our communities. »
No conclusion on bilingual judgments
Supreme Court judges were also expected to consider the right to be understood in court, without an interpreter, in the official language of one’s choice. The appellants argued that their right was not respected, since a previous hearing before the Court of Appeal of the Northwest Territories had required interpretation services.
If the Court rejected their conclusions, they “at least wanted it to be declared that their right to be heard arising from natural justice had been violated,” explains Me Côté. But by already giving them “win of their case”, the judge considers that it is “not necessary to address the question […] to resolve the dispute”, preferring to postpone this examination of the quality of interpretation services “until another occasion”.
This report is supported by the Local Journalism Initiative, funded by the Government of Canada.