Appeal Watch: SCC to Decide if s. 23 Minority Language Education Rights Extend to Non-Right Holders
In 2021, the Northwest Territories Court of Appeal (“NWTCA”) assessed two applications for judicial review for access to s. 23 minority language schools by families that were not prima facie entitled to s. 23 rights. On April 14, 2022, the Supreme Court of Canada (“SCC”) granted the application for leave to appeal for A.B. v Northwest Territories (Minister of Education, Culture and Employment), 2021 NWTCA 8 [A.B., et al.].
Though there are numerous ways to achieve the goal of cultural preservation, one way is through proliferating or preserving the cultural language. In 1982, Canada committed to preserving its identity as a bilingual country by embedding minority language educational rights in s. 23 of the Canadian Charter of Rights and Freedoms [Charter].
This means that some families in Canada have a constitutional right to send their children to minority language schools. To establish this right, a family must meet one of the three categories enumerated in s. 23 of the Charter. It notes that Canadian citizens have the right to have their children educated in English or French, if:
- their child’s first language was English or French (s. 23(1)(a)), or
- the parents received primary education in Canada in English or French (s. 23(1)(b)), or
- if the family has a child who has received or is receiving their primary or secondary education in English or French in Canada (s. 23(2)).
Though the Charter establishes minimum standards regarding s. 23 rights, it also gives the government the discretion to allow non-section 23 children to attend minority language schools (A.B., et al., para 8). However, there are significant costs associated with operating minority language schools which come from the public purse. Hence, governments are hesitant to increase their costs by allowing non-section 23 children to enter these schools.
At the time of these decisions, the territorial Minister of Education, Culture, and Employment (“Minister”) did not have a statutory or regulatory obligation to exercise their discretion. As such, the Minister made a public policy choice to consider applications from non-section 23 children because the Minister recognized some children did not meet s. 23 requirements. Thus, the Ministerial Directive: Enrolment of Students in French First Language Education Programs 2016 [“Directive”] policy was adopted, with guidance from public consultations. “It was designed to admit ‘a limited number’ of non-section 23 children by setting out three categories of non-rights holders parents to apply for permission their children to attend the school” (A.B., et al., para 10):
- Reacquisition: the parent would have been a right-holder but for their or the child’s grandparent’s lack of opportunity to attend a French first language school; or
- Non-citizen Francophone: the parent meets criteria of s. 23 of the Charter but are not Canadian citizens; or
- New Immigrant: the parent is an immigrant to Canada, their child did not speak English or French upon arrival, and their child is enrolling in a Canadian school for the first time
If a family did not meet s. 23 criteria nor this Directive’s criteria, they could still apply to have their application assessed under the Minister’s residual discretion. To do so, the family must demonstrate extraordinary circumstances warranting their non-section 23 child’s admission.
Facts of the Case
This case is about two similar claims brought against the Minister, by two appellant groups of families.
In the first group, the parents of the A.B. family immigrated from the Netherlands to Canada. Their child is a Canadian citizen, but the family did not qualify for s. 23 Charter rights. The family applied to the Minister, seeking permission for their child to attend a minority language school under the Directive. The Minister rejected their first and second application with detailed reasons. The A.B. family sought judicial review of the Minister’s second decision on their application.
Similarly, in the second group, there were four immigrant families applying on behalf of their five children to the Minister for admission into a minority language school under the Directive and relying on the Minister’s residual discretion. The families did not meet any category under the Directive. The Minister refused to exercise their residual discretion and rejected their applications. The four families applied for judicial review of the Minister’s decision.
At the Northwest Territories Supreme Court, Justice Rouleau considered both judicial review applications together.
Applying the new standard of review framework from Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], the judge determined the standard of review for assessing the Minister’s decisions on these applications was reasonableness. In order for a decision to be unreasonable, it must be internally irrational or unjustified in light of the factual and legal constraints that bear on the decision (A.B., et al., para 30).
Justice Rouleau found that the Minister acknowledged that the childrens’ admission to the s. 23 schools would likely be in their best interest. However, the Minister denied their applications because the families did not qualify under the Directive and their circumstances were not sufficiently extraordinary to justify their admission under the residual ministerial discretion. Justice Rouleau reviewed the evidence and found that it did not support the Minister’s decision or reasons.
Additionally, the Minister failed to: (i) conduct proportionate balancing of Charter considerations and the government’s interests and (ii) give weight to the Commission scolaire francophone’s recommendations. Justice Rouleau found the Minister’s decisions were unreasonable because these errors created “fundamental flaws in the rationality internal to the Minister’s reasoning process (A.B., et al., para 36). Justice Rouleau set aside the Minister’s decisions and referred the applications back to the Minister for reconsideration.
The Government of Northwest Territories appealed Justice Rouleau’s disposition to the NWTCA.
The NWTC determined there are four issues to be addressed in this appeal (A.B., et al., para 39):
- (i) Is the Directive ultra vires;
- (ii) Does the Directive comply with Charter values;
- (iii) Did the Minister fetter their discretion; and
- (iv) Were the Minister’s decisions with respect to the applications by the respondent families reasonable?
Directive is Not Ultra Vires
The NWTCA agreed with Justice Rouleau that the standard of review to assess the Minister’s decisions is reasonableness. The inquiry here is whether the Directive is valid and reasonable.
Since the Minister’s enabling statute does not constrain how the Minister may use their discretion, the Minister is able to set general policies on admission into minority language schools. In other words, the Minister has a wide range of discretion because this is a matter of high policy (A.B., et al., para 43). The Minister can develop policies to help them exercise their discretion effectively. In this case, the Directive was a valid administrative law tool and the Minister’s decisions were made within the Directive’s framework (A.B., et al., para 46).
Additionally, the Minister’s decisions were reasonable because they were directly tied to the Directive. In it, the three three categories of eligible families “are clearly reasonable policy choices; they are intelligible, transparent, and justified based on the relevant constellation of law and facts” (A.B., et al., para 52). These categories recognize the position of certain families which do not meet s. 23 requirements. Furthermore, the NWTCA found it was reasonable for the Minister to regard the Directive as limiting the circumstances in which they would exercise their residual discretion (A.B., et al., para 54).
Directive Complies With Charter Values
In his decision, Justice Rouleau found that the burden of proof was on the Minister to prove their decisions were compliant with the Charter values. However, the NWTCA found that the burden of proof was on the respondent families, not the Minister. The NWTCA noted the “central flaw” in Justice Rouleau’s reasoning because he “proceeded as if the respondent families were asserting Charter rights” (A.B., et al., para 56). Since the respondent families are not entitled to nor did they claim s. 23 rights in their judicial review applications, Justice Rouleau rendered the decision on a mistaken assumption that “he was interpreting and enforcing constitutional rights” (A.B., et al., para 56).
Furthermore, Justice Rouleau failed to recognize that the Directive itself was designed to foster the viability of the minority French language community. The Directive was constitutional because it advanced the objectives of s. 23 overall. Therefore, Justice Rouleau misframed this issue and his critique of the Minister’s decisions for failure to respect Charter values failed at the factual level (A.B., et al., para 58).
Minister Did Not Fetter Discretion
Generally, administrative decision makers—like a Minister—may adopt valid policies or guidelines to assist them in exercising their discretion. However, they cannot adopt mandatory policies that leave no room for exercising their residual statutory discretion (A.B., et al., para 85). If a decision-maker adopts a mandatory policy with no room for discretion, then they are effectively fettering their discretion, which they are statutorily required to exercise.
In this case, the NWTCA found that the Minister indicated in her reasons, that her discretion in the respondent families case had been exhausted by the provisions of the Directive. Simply put, the Minister did not have any residual discretion to exercise. While the respondent families’ argue that the Minister did not exercise their discretion, their argument, in essence, is that the Minister did not exercise the discretion in their favor.
Minister’s Decisions Were Reasonable
The NWTCA found that Justice Rouleau erred by failing to give appropriate deference to the Minister’s highly discretionary decisions. Specifically, Justice Rouleau incorporated different criteria to assess the decisions, disregarded concessions made by the respondent families, and substituted decisions they thought were just in the circumstances (A.B., et al., para 97).
Additionally, the NWTCA found that if there were some applications that did not comply with the Directive, the Minister was reasonable in giving permission to those applicants in exceptional circumstances (A.B., et al., para 99). There is no clear definition of “exceptional circumstances” because it must be determined on a case-by-case basis. For example, the Minister exercised their discretion for a child who was integrated into the francophone community before she came to Canada and she only spoke French, not English (A.B., et al., para 125). Moreover, the NWTCA found that the respondent families failed to establish exceptional circumstances for their childrens’ admission. This shows that the Directive was carefully and reasonably drafted, leaving little room for admission of those who do not qualify under it (A.B., et al., para 106).
The NWTCA also noted that if the Minister’s decisions are considered individually and collectively, the reasons for those decisions were reasonable. “They were rational, intelligible, and transparent, and they were all available on the relevant constellation of law and facts” (A.B., et al., para 97).
The NWTCA allowed the appeal and ruled in favor of the Minister. The respondent families have now appealed to the SCC. This case will turn on which standard of review is applicable. If the SCC chooses a standard of reasonableness, then they will review the Directive and the Minister’s reasons to determine if the Minister’s decisions were reasonable. If the SCC adopts a standard of correctness, then they will review this appeal as if they were deciding the respondent families’ applications themselves. If the SCC’s decision matches the Minister’s, then the Minister’s decision remains. If they do not match, then the Minister’s decision will be struck down.
In my opinion, the SCC may be hesitant to adopt the correctness standard because generally, the courts try to give deference to an administrative decision maker. Additionally, the risk of allowing non-section 23 right-holders to access s. 23 rights remain high. Currently, the hearing for this case is scheduled at the SCC for February 9, 2023. It will be interesting to read the SCC’s approach on this unique issue.
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