The Supreme Court of Canada has agreed to hear an appeal brought by the NWT’s francophone school board regarding the territory’s role in denying some children access to its schools.
In September last year, the NWT Court of Appeal decided Premier Caroline Cochrane was justified in using her discretion years ago – as education minister at the time – to deny some children entry to francophone schools.
The law in question has since been changed, but the NWT’s Commission scolaire francophone says the appeal court’s verdict nevertheless “substantially weakens section 23 protections” and should be reassessed by Canada’s highest court.
Section 23 of the Charter guarantees educational rights to people whose language is in the minority where they live, such as francophone parents in the NWT.
The original case discussed the extent of the NWT government’s legal obligation to allow any child who does not qualify under the Constitution to attend a francophone school. The appeal court ruled that obligation did not exist.
“Minority language education rights above the ‘constitutional minimum’ … are within the discretion of the government,” that ruling stated.
In November, the school board said it would ask the Supreme Court of Canada to hear the case as the NWT court of appeal had, in the school board’s view, given the NWT government “permission to, without consultation, act against the interests of the Franco-ténois minority and make many decisions that affect it and its schools without taking its interests into account.”
On Thursday, the Supreme Court granted the school board leave to appeal and also granted a motion to adduce new evidence.
That decision does not mean the school board has won its appeal. Thursday’s development means the Supreme Court will hear the appeal at a later date (it had the option to refuse even to hear the case) before reaching a final decision that cannot be appealed to any higher power.
The Supreme Court on Thursday issued rulings on 13 applications for leave. Of those, only the school board’s application was granted and will go forward to the court.
Right to use French in court
Reasons for deciding to grant or dismiss such requests are never provided by the court. Generally, the court takes on cases considered to have public importance or broad consequences.
“It’s an excellent way to start a Thursday of a long weekend,” said Yvonne Careen, superintendent of the Commission scolaire francophone.
“It’s been a process, so far, but we’re very happy that the Supreme Court of Canada has examined what we presented and thinks there are clarifications needed.”
The school board wants the Supreme Court to weigh in on three points: how students are admitted to its schools, the rights of linguistic minorities in Canada, and the school board’s right to use French in the NWT’s courtrooms, which is expected to be where new evidence is heard.
“In this case, and even in other cases, we have not been able to be heard in French as we wanted,” said Jean de Dieu Tuyishime, chair of the Commission scolaire francophone’s board of trustees.
“The interpretation was not really at the level we wanted. There were so many weaknesses in the way they were doing the translation.”
“We accept the Supreme Court of Canada’s decision to hear the appeal today,” the NWT government’s Department of Education, Culture and Employment said in a written statement to Cabin Radio.
“Although we look forward to bringing closure to this matter and building a renewed relationship with the Commission scolaire francophone des Territoires du Nord-Ouest surrounding admission of non-rights holders, we respect the judicial process.
“The GNWT is committed to supporting the protection of the French language through the provision of French First Language education in the NWT and to providing equitable access to education for all students.”
Asked what impact she hopes the years-long case will ultimately have, Careen said: “Ministers change. Bureaucrats change. And the interpretation of section 23 of the Charter has to be well-understood and well-applied.
“It’s a point of clarification – not that we’re questioning who has the right to admit students to our schools, but that it be done carefully and considering section 23. It’s not good enough just to say that it costs too much money.”