Premier Caroline Cochrane was justified in using her discretion years ago, as education minister, to deny some children entry to the NWT’s francophone school system, the territory’s highest court has ruled.
While the NWT Court of Appeal’s ruling is moot – the laws have since been changed – it can be seen as a moral victory for Cochrane. The overturning of her original decision contained harsh critiques of her performance.
Ontario Court of Appeal Justice Paul Rouleau, brought in as a result of conflict of interest, issued his decision in July 2019, siding at the time with the family making the appeal.
In that decision, he stated Cochrane breached her constitutional obligations and failed to explain why she refused to use her discretion to admit a child born here to immigrants from the Netherlands to Yellowknife’s École Allain St-Cyr.
Wednesday’s Court of Appeal ruling deals with that original case and four other families who were also fighting the territorial government for similar reasons.
This time, it was Cochrane’s detractor who bore the brunt of the criticism, with the GNWT winning its case.
“The appeals must be allowed, and the orders set aside,” stated two of the three justices, with the third coming to the same conclusion via a different legal route.
“The orders do not properly reflect the standard of review to be applied to discretionary decisions of this nature. Further, the analysis of the constitutional and other issues given in support of the orders is tainted by reviewable errors.”
Later in the judgement, Rouleau’s criticism of Cochrane’s decisions – he alleged she failed to take the relevant section of Constitution into account in the exercise of her powers – “fails at the factual level,” two of the justices held.
The high court also stated Rouleau “essentially proceeded as if the broader Francophone community was a party to the litigation,” which it said reflected an error in law.
Rouleau concluded Cochrane should have “at a minimum considered the contribution that an additional student joining the Francophone community in the NWT would make to the vitality and flourishing of that linguistic minority.”
But Cochrane was not legally obliged, the high court ruled on Wednesday, to allow any child who does not qualify under the Constitution to attend the francophone schools.
“Minority language education rights above the ‘constitutional minimum’ … are within the discretion of the government,” the justices stated.
Since the late 1980s, the GNWT has operated minority language schools offering instruction in French at École Boreale in Hay River and École Allain St-Cyr in Yellowknife.
Some families have a constitutional right to send their children to those schools, while others do not qualify.
Those who don’t qualify can apply to the education minister for permission to attend.
The directive under which Cochrane was operating – which has since been changed – was designed to admit only a limited number of non-rights holders to prevent the French first-language schools from essentially becoming a French immersion option for parents.
“None of the minister’s decisions in the individual cases, when considered in context together with the reasons given for those decisions, were unreasonable,” stated the high court.
“They were rational, intelligible, and transparent, and they were all available on the relevant constellation of law and facts.
Justice Rouleau, the high court found, “erred by failing to give appropriate deference to those highly discretionary decisions, by incorporating different criteria and arguments, by disregarding concessions made by the respondents, and by substituting decisions he thought were preferable in the circumstances.”
Since the 2020-21 school year, admission to the NWT’s French first-language schools has been governed by new regulations that give schools more responsibility for admissions.
The new regulations clarify the eligibility criteria and introduce a “francophile” admission category that permits the enrolment of non-rights holder students whose parents can demonstrate French-speaking capability through an exam.
The school enrolling the student must also be operating at less than 85-percent capacity, to address budgetary concerns.