The flag of the Supreme Court of Canada flies from the eastern flagpole in Ottawa, on November 28, 2022.Sean Kilpatrick/The Canadian Press
The Supreme Court of Canada has boosted access to French-language schools outside Quebec in a decision that opens the door for non-Francophones with special claims to enroll.
The case before the Supreme Court concerns 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 the right under the Charter of Rights and Freedoms to attend a French school. (These are French as a first language schools, not immersion programs.)
Section 23 of the Charter requires the government to provide French schools outside Quebec where a number of French-speaking families justify it, but the right to attend is mostly reserved for children whose parent has attended a French-speaking school or whose first language is French. (This right also applies in Quebec to English speakers, with some differences.)
The Supreme Court ruled unanimously Friday that the Northwest Territories government acted unreasonably in rejecting the Five Fathers’ claims by failing to consider “Charter values” — the reasons behind Article 23, such as protecting minority language communities.
“The preservation and vitality of these educational environments promotes the development of the linguistic minority communities they serve,” Justice Suzanne Côté wrote for the court, sending the matter back to the territory’s education minister for reconsideration.
Lawyers involved in the case said the ruling could have wide-ranging consequences.
It can help French-speaking immigrants obtain permission to enroll in French schools when settling outside Quebec. With the demographic decline seen by the French in Canada, “I think it’s a very important decision, in light of the growing importance and increasing importance of French-speaking immigration in the future,” said François Larocque, who holds the research chair in language rights at the University of Ottawa. He was involved in the case.
Raymond Theberge, Canada’s official languages commissioner, another intervener, 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.”
Perry Raffon, an attorney for the Five Parents and the Schooler Commission, said the focus on strengthening language minority communities could go beyond who is allowed to enroll, to impact the quality of French schools, a problem in Vancouver, Toronto, Edmonton and Halifax. Francophonie, board of directors of the French school in the region.
“The decision is really huge,” she said, stressing that government agencies need to consider the impact of their decisions on “the linguistic minority community, its vitality and its future.”
The consequences can extend beyond education. By affirming Charter values, even where no Charter rights are violated, this ruling could change the way governments and administrative bodies make decisions – in almost any context.
“The choice made by the framers of the Constitution [of the Charter] “Embedding certain rights in the text of Canada’s supreme law means that the purpose of those rights is important to Canadian society as a whole and must be reflected in the decision-making process of the various branches of government,” Justice Coté wrote. Government.”
“All discretionary decisions — tens of thousands of which are made every day across Canada by ministers, regulators and municipal officials — must be imbued with relevant Charter values,” said Paul Daly, a University of Ottawa law professor who represented Yukon. Francophone school board as intervener.
For example, the decision of border officials to detain someone may impinge on the Charter’s values of dignity and autonomy, said Professor Daly, who is the university’s research chair in administrative law and governance.
The government of the Northwest Territories allows some non-French speakers to attend French schools, such as recent immigrants whose first language is neither English nor French. It has the freedom to consider others with exceptional circumstances. Using this discretion, the province’s education minister rejected the five parents’ requests in a written decision based in part on the high costs of French-language education where the community is a minority.
Each of the five parents filed a private claim in 2018. For example, in one family, both parents are doctors, serve a French-speaking community and speak French at home with their children. The parents and the Francophone school committee, which recommended the students’ admission, asked the court to review the government’s refusal. Judge Paul Rouleau, a French-speaking from Ontario, said the refusal was unreasonable. (At that point, four of the parents’ children had been accepted into French schools. The other family had left the country.)
A three-member appeal panel from Alberta heard the case through an interpreter, overturned that ruling and said the education minister exercised her decision reasonably. (Technical problems with interpretation led to questions about whether the appellate judges understood the case, but the Supreme Court declined to answer whether the constitutional right to be heard in French in federal courts also includes the right to be understood in French.)
David Taylor, a lawyer representing a national organization of French-speaking parents, said the Supreme Court was telling provincial governments that “if there are tools in the toolkit that will help French people stay in their provinces, communities should have access to those tools.”