NWT Supreme Court again sends francophone admissions for review

The NWT Supreme Court has again ordered the territory’s education minister to reassess the cases of six children denied admission to francophone schools, calling previous decisions “unreasonable” and “illogical.”

In a French-language memorandum of judgment filed on Thursday, Supreme Court Justice Paul Rouleau said Caroline Cochrane – education minister at the time – used “erroneous” reasoning last year to justify her decision. (All quotes in this report have been translated from the original French.)

Cochrane’s conclusions were “largely based on [illogical] considerations or not supported by the evidence before it,” Rouleau stated. “The result is that [her] decisions are based on an irrational analysis and [her] reasons do not reflect a proportionate balancing of section 23 of the Charter.”

The judge specifically cited Cochrane’s references to budgetary concerns and the “growing Franco-Ténoise community,” saying those projections were based on inaccurate data and lacked nuance.

In 2019, then-minister Cochrane told five families they could not send their children to French-language schools in Hay River and Yellowknife because, as non-rights holders, they did not meet the qualifications laid out in the territory’s admission policy.

The word “rights-holders” refers to those who speak the minority language, whether it be French or English, in a given area. Section 23 of the Canadian Charter of Rights and Freedoms protects the right of families – particularly if they are such rights-holders – to receive schooling in their first language.

The existing territorial protocol includes a small list of exceptions under which non-rights holders can be granted admission to French-language schools: if they are francophone but not a Canadian citizen; a new immigrant whose first language is neither English nor French; or if they would have been a rights-holder if not for lack of opportunity to receive education in French.

Cabin Radio understands none of the five families in question met those criteria.

This is the second time the case has been brought before the Supreme Court, with Rouleau first ruling the minister should reassess her decisions in July 2019.

When admission was subsequently denied a second time, the case was brought to the courts yet again by the Commission scolaire francophone – the French school board – on behalf of the families.

On Thursday, Rouleau ruled that the latest decisions also be set aside and the applications for admission be again returned to the current minister, RJ Simpson, for reconsideration – nearly an exact repeat of the ruling last year.

However, the judge denied the school board’s request for a court order overruling the ministry and granting the children admission, stating that previous errors “do not outweigh the respect” that the minister’s discretion should receive.

He also refuted assertions that the minister had “violated the principles of fairness” in her decision, saying the complainants had failed to establish this accusation beyond doubt.

In late June, Simpson stated in a news release that his department would repeal the current eligibility criteria for admission to French-language schools in the NWT.

While new criteria are still to be developed for the 2020-2021 school year and beyond, the ministry stated the applications under judicial review would remain subject to the existing criteria.