FÉDÉRATION NATIONALE DES CONSEILS SCOLAIRES FRANCOPHONES
Francophone school boards' right to manage admissions: country's highest court recognizes immigration as a source of vitality for francophone communities

The Fédération nationale des conseils scolaires francophones (FNCSF) applauds December 8's favourable decision by the Supreme Court of Canada on the issue of admissions management rights in the case opposing one of its members, the Commission scolaire francophone des Territoires du Nord-Ouest, to its territorial government.

Simon Cloutier is president of the FNCSF and a school commissioner with the Commission scolaire francophone des Territoires du Nord-Ouest. "This long-awaited ruling is a fine victory that recognizes the important role played by francophone immigration in the vitality and sustainability of Francophone minority communities in Canada.

In a unanimous decision, the Supreme Court of Canada states: "The Minister (of Education, Culture and Employment) was required not only to consider s. 23 of the Charter in exercising her discretion to admit the children of non-rights holder parents to the schools of the Francophone minority in the Northwest Territories, but also to conduct a proportionate balancing of the values reflected in the three purposes of s. 23 with the government's interests The Minister attached too much importance to her duty to make consistent decisions and gave disproportionate weight to the cost of the contemplated services in the exercise of her discretion. Given the remedial nature of s. 23, pedagogical requirements had to have more weight."

The judgment also refers to Section 23: "This constitutional provision has three purposes: the right to instruction in the minority official language is at once preventive, remedial and unifying in nature. The provision is intended not only to prevent the erosion of official language communities, but also to redress past injustices and promote the development of these communities. This means that the preservation and development of minority language communities are among the values underlying s. 23. Protection of the right to instruction in the minority official language is a reflection of these values, insofar as education is a means of realizing the societal ideal that they embody."

The legal dispute arose from the desire of newcomer families and Francophile parents in the Northwest Territories to enroll their children in French-language schools. Faced with the refusal by the territory's Ministry of Education, Culture and Employment to allow these children to attend French-language school, the Commission scolaire francophone des TNO turned to the courts.

The FNCSF intervened in this case. It argued before the Court that unduly restricting the admission of non-entitled persons, such as Francophone newcomer families from immigrant families and Francophile parents in the context of a vulnerable minority, is an obstacle to the realization of Section 23 of the Canadian Charter of Rights and Freedoms.

The national federation pointed out that for small, vulnerable communities that have not yet recovered from the ravages of assimilation, the admission of a non-entitled person can have a significant impact on the vitality of the community, and in return, the refusal of admission can be very damaging.

The FNCSF is therefore delighted that the Court recognizes the importance of granting admission to immigrants to those entitled to it, since the role of immigration is much more important in Canada in 2023 than it was in 1982.

Roger Lepage is the lawyer who represented the FNCSF before the Supreme Court of Canada. "The failure of governments to implement section 23 for decades in small communities, such as the NWT, following the adoption of the Canadian Charter of Rights and Freedoms requires new remedies, such as a more generous government's approach to the admission of certain non-entitled persons. And that's exactly what this judgment states."

• Read the SCC judgment.
• Read the FNCSF's brief.