The NWT's education minister has lost a judicial review of her decision to deny a child entry to the territory's francophone school system.
Minister Caroline Cochrane decided the child, born in Canada to parents who had newly immigrated, did not meet the criteria for admission to Yellowknife's École Allain St-Cyr – a point on which NWT Supreme Court Justice Paul Rouleau agreed.
However, the rules establishing those criteria also provide for the minister to use their discretion in admitting a child.
Rouleau said such discretionary power formed an important mechanism for the minister to use, but there was little evidence to suggest the minister had given her discretionary ability much, if any, consideration.
As a result, he ruled, the minister had failed to perceive the case through the "remedial [and] restorative" lens of the legislation governing it, which is designed to preserve and develop minority languages.
Rouleau cancelled the minister's initial decision – and a subsequent decision not to reconsider – and, in essence, ordered Cochrane to try again.
"It is not for me to judge how the minister must ultimately exercise her discretion and whether she should admit [the child] to the francophone school," the judge wrote in a French-language ruling published on Tuesday.
"On the other hand, the decision and the reasons of the minister must show that, in making her decision, she took into account the relevant factors."
A case of discretion
Among issues central to the case are the desirability of a francophone education in Yellowknife and section 23 of the Canadian Charter of Rights and Freedoms.
During this case, the NWT government argued that the parents in question, like many Yellowknife parents, want their child to speak French as it is seen as an advantage later in life.
"According to the minister," the judge wrote in his decision, "many anglophone parents in Yellowknife think the same way. Thus, if an exception were to be made for such a reason, requests for exceptions would multiply."
Section 23 of the Charter grants parents from the linguistic minority the right for their children to seek education in their own language. Parents who qualify are known as rights-holders.
In this instance, the parents are not rights-holders. However, the NWT's own rules allow a limited number of children of parents who aren't rights-holders to also be admitted to francophone schools, on the grounds this will "support the revitalization of languages and cultures."
Even then, a child of parents who aren't rights-holders must fit one of three categories – with the exception that the minister can exercise her discretion if the child does not fit the categories.
In his ruling, the judge said the child did not fit any of the three categories, and the minister was correct to reach that conclusion.
Yet the judge felt the minister appeared not to have satisfactorily contemplated whether the child deserved discretionary approval.
"The minister acknowledges that her letter of refusal contains no mention of the fact that she has discretion and decided not to use it in this case," the judge wrote. "The applicants therefore received no explanation as to why she refused to use her discretion to admit [the child] to École Allain St-Cyr.
"There is nothing in the documentation to suggest that the minister considered the application to use her discretion to admit [the child] and decided not to do so in this case.
"The only conclusion that the documentation can draw is that the minister limited herself to assessing whether the application for admission fell into one of the categories ... She never considered whether [the] case presented factors and circumstances that could lead her to exercise her residual discretion."
'Needs of the minority'
The school principal and the francophone school board had both written to the minister recommending the child be accepted to École Allain St-Cyr.
The parents had placed their child into a francophone daycare upon arrival in Yellowknife. The child speaks three languages, with French said to be the language with which they are most comfortable.
The judge said two other elements made this case unusual, and deserving of the minister at least checking to see whether discretionary approval was warranted.
"If it was not for the fact that [the child] was born six months after the arrival of his parents in Canada rather than before their arrival, the application for admission could have been granted," the judge wrote.
"Secondly, [the child] does not seek to learn French, since the commitment of their parents has made them speak this language already. This distinguishes their situation from many requests from parents who seek to admit their child to the francophone school as an immersion program."
Rouleau said that, in failing to appropriately review whether her discretionary powers should be used, the minister was overlooking the reason legislation protecting minority languages exists in the first place.
"The needs of the linguistic minority must be factors that the minister must take into account when exercising her authority," the judge wrote.
"To do otherwise would not respect the purpose [of the Charter's section 23] to end the gradual erosion of the culture and language of the minority, and to actively promote its development."
The decision arrives in time for the new school year, though the child has spent the past year enrolled elsewhere.
The francophone school board – the Commission scolaire francophone – reportedly plans to reopen discussion with the NWT government regarding admission rules after this fall's territorial election.