The flag of the Supreme Court of Canada flies on the east flag pole in Ottawa, on Nov. 28, 2022.Sean Kilpatrick/The Canadian Press
The Supreme Court of Canada has strengthened access to French-language schools outside Quebec in a decision that opens the door to non-francophones who have special claims to attend.
The case before the Supreme Court involved five parents seeking government permission for their children to attend one of two French-language schools in the Northwest Territories. None of the children had a right under the Charter of Rights and Freedoms to attend a French school. (These are French-as-a-first-language schools, not immersion programs.)
The Charter’s Section 23 requires government to offer French schools outside Quebec where numbers of francophone families warrant, but the right to attend is reserved mostly for children with a parent who went to a francophone school or a parent whose first language is French. (The right also applies in Quebec for anglophones, with some differences.)
The Supreme Court ruled unanimously Friday that the government of the Northwest Territories acted unreasonably in rejecting the claims of the five parents by failing to consider “Charter values” – the underlying reasons for Section 23, such as the protection of minority-language communities.
“The preservation and vitality of these educational environments promote the development of the minority language communities they serve,” Justice Suzanne Côté wrote for the court, sending the matter back to the territory’s Education Minister to be reconsidered.
The ruling has potentially wide consequences, lawyers involved in the case said.
It could help francophone immigrants obtain permission to enroll in French schools when settling outside Quebec. With French in demographic decline in Canada, “I think it’s a very important decision, in light of the growing importance and saliency of francophone immigration for the future,” said François Larocque, who holds the Research Chair in Language Rights at the University of Ottawa and was an intervenor in the case.
Raymond Théberge, the Official Languages Commissioner of Canada, another intervenor, said the ruling “will prevent the ongoing linguistic erosion experienced by Canada’s official-language minority communities, and will support particularly vulnerable communities, such as those in the Northwest Territories.”
The emphasis on strengthening minority-language communities could go beyond who is permitted to enroll, to affect the quality of French schools, an issue in Vancouver, Toronto, Edmonton and Halifax, said Perri Ravon, a lawyer for the five parents and the Commission Scolaire Francophone, the territory’s French school board.
“The decision is really huge,” she said, in affirming that government bodies need to think about the impact of their decisions on “the minority-language community, its vitality, its future.”
And the consequences could go well beyond education. In its emphasis on Charter values, even where a Charter right has not been violated, the ruling could change the way decisions are made by governments and administrative bodies – in virtually any context.
“The choice made by the framers [of the Charter] to entrench certain rights in the text of the supreme law of Canada,” Justice Côté wrote, “means that the purpose of these rights is important for Canadian society as a whole and must be reflected in the decision‑making process of the various branches of government.”
That means “all discretionary decisions – tens of thousands of which are taken every day across Canada by ministers, regulators and municipal officials – have to be suffused by relevant Charter values,” said Paul Daly, a University of Ottawa law professor who represented the Yukon Francophone School Board as an intervenor.
For instance, a decision by border officials to detain someone may touch on Charter values of dignity and autonomy, said Prof. Daly, who is the University Research Chair in Administrative Law & Governance.
The government of the Northwest Territories allows for some non-francophones to attend French schools, such as new immigrants whose first language is neither English nor French. And it reserves the discretion to consider others with exceptional circumstances. Using that discretion, the territory’s Education Minister rejected the requests of the five parents in a written decision that rested in part on the higher costs of educating in French where the community is in the minority.
Each of the five parents presented a special claim in 2018. For instance, in one family, both parents are doctors, served a French-speaking community and spoke French at home with their children. The parents and the Commission Scolaire Francophone, which had recommended accepting the students, asked a court to review the government’s rejection. Justice Paul Rouleau, a francophone from Ontario, said the rejection was unreasonable. (At that point, the children of four of the parents were admitted to the French schools. The other family had left the country.)
A three-member appeal panel of judges from Alberta, hearing the case through an interpreter, overturned that ruling and said the Education Minister had exercised her decision reasonably. (Technical problems with the interpretation led to questions about whether the appeal judges had understood the case, but the Supreme Court declined to answer whether a constitutional right to be heard in French in federal courts also included a right to be understood in French.)
David Taylor, a lawyer representing a national organization of francophone parents, said the Supreme Court was telling provincial governments that “if there are tools in the tool kit that would help French survive in their provinces, then communities should have access to those tools.”