The territorial government is appealing a judicial review which cancelled the education minister's decision to deny a student entry into a francophone school in Yellowknife.
Saying that the result of the appeal is unlikely to be known before the school year begins, the minister – Caroline Cochrane – said she would nevertheless reconsider her decision, as the court had directed.
Earlier this month, NWT Supreme Court Justice Paul Rouleau ruled Cochrane had not demonstrated that she properly considered her discretionary powers in deciding the child – whose parents were recent immigrants – should not be admitted to Yellowknife's École Allain St-Cyr.
On Friday, the territory stated it had filed with the NWT Court of Appeal. In a news release, the territorial government said it would not comment further while the matter is before the courts.
The NWT's francophone school board said it was "very disappointed" in the territory's decision to appeal.
The NWT justice minister, Louis Sebert, said the appeal is meant to clarify what the territory – and the minister – must consider in such cases.
"By filing the appeal, we expect to achieve further clarification on the requirements of government when considering exceptions to French-language school admissions criteria,” Sebert said in a news release.
Cochrane, in the same news release, stated: "I will be reconsidering my previous decision as directed by the court." The minister said she would shortly advise the parents involved and the francophone school board – the Commission scolaire francophone – of her decision.
However, the school board on Friday said the appeal "sends the wrong message to all parents, including immigrant parents, who seriously want their children to learn the French language and develop a francophone culture and identity."
The case in question involves a child born in Canada to newly immigrated parents. When the family applied to have the child admitted to École Allain St-Cyr, Cochrane decided the child did not meet the criteria for admission.
Judge Rouleau agreed that the minister was entitled to reach that basic conclusion. However, the rules establishing the criteria also provide for the minister to use their discretion in admitting a child.
In his ruling, the judge stated 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.
Judge Rouleau cancelled the minister's decision not to admit the child, as well as a second decision not to reconsider the first one.
"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 July 2.
"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."
Rights of linguistic minorities
Behind the individual case is section 23 of the Canadian Charter of Rights and Freedoms, which grants parents from linguistic minorities the right for their children to seek education in their own language. These parents are known as "rights-holders."
The parents in question are not rights-holders but, within the NWT's rules, a limited number of children whose parents are not rights-holders can be admitted to francophone schools. These parents must fit into one of three categories, which the parents in question did not. The minister, at that point, is still able to exercise their discretion if the child doesn't fit into the three categories.
In announcing its decision to appeal the ruling, the territory stated it "believes it is important to confirm and clarify the appropriate levels of discretion available."
In this case, the child speaks three languages, is said to be most comfortable with French, and was placed in a francophone daycare when arriving in Yellowknife.
The judge noted two other elements of the case which, he said, should have prompted the minister to check to see if her discretionary approval should be used.
Firstly, the judge said, the parents of the child speak French. This, said Rouleau, differentiates them from other parents who may place their children in a francophone school as a form of immersion. Secondly, if the child had been born outside Canada a few months earlier – before the parents immigrated – they could have qualified for access to an NWT francophone school as a newcomer.
Rouleau said that, in appearing not 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."
In a written response on Friday afternoon, school board chair Simon Cloutier said: "The minister’s position in this case is harmful to [the francophone school board's] schools and the Franco-ténoise community."
Cloutier said the minister's interpretation, in his view, would allow any education minister to block admission of non-rights holders "without ever taking into account any Section 23 considerations."
"It is difficult to reconcile the minister’s restrictive approach to admissions with the minister’s broader obligations under Section 23 of the Charter, and in particular, Minister Cochrane’s concurrent responsibilities as the minister responsible for official languages, French being one of them," he wrote.