In Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, released on December 8, 2023, the Supreme Court reaffirmed the currency of the Doré v. Barreau du Québec, 2012 SCC 12[1] framework in Canadian administrative law. The Court’s decision in Commission scolaire francophone clarified the obligation of discretionary decision-makers to consider Charter protections and to proportionately balance the identified Charter protections and the statutory objectives in discretionary decision-making.
This is a significant pronouncement. In its seminal 2019 administrative law decision, (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court clarified the law of standard of review in judicial review of administrative decisions but did not revisit its earlier decision in Doré. Since Doré, judges of the Court have been divided on the role played by Charter protections – including the much-debated concept of Charter values – and whether to limit its application to Charter rights.[2]
Background
In Commission scolaire francophone, the appellants were parents who applied to enroll their children in French-language education in one of the two French-language schools in the North West Territories (NWT). The appellants were not rights holders under s. 23 of the Charter of Rights and Freedoms, which includes citizens whose first language is one of the two official languages or who attended primary education in the minority language. Under s. 23 of the Canadian Charter, rights holders have the right to have their children receive elementary and secondary instruction in French where it is a minority language.
At the time of the appellant parents’ application for admission, enrollment of non-rights holders into French education programs in NWT was governed by a Ministerial Directive (Enrolment of Students in French First Language Education Programs (2016)). The Directive opened up enrollment in a French first-language program to the children of non-rights holder parents if they met one of the following criteria: reacquisition (the parent would have been a rights holder but for their or their parents’ lack of opportunity to attend a French first-language school); non-citizen francophone (parent meets criteria of s. 23 but is not a Canadian citizen); and new immigrants (parent is an immigrant to Canada whose child does not speak either official language).
The appellant non-rights holders made applications for enrollment on the basis that they fell within one of the three Directive categories. In most cases, the parents were immigrants to Canada whose children were born in Canada or were already enrolled in an English program. The parents asked the Minister, with the support of the Commission scolaire francophone des Territoires du Nord-Ouest, to exercise her discretion to admit their children to a French first-language education program. The Minister denied their applications on the basis that they did not fall within the prescribed categories.
The Decision
Justice Suzanne Côté authored a rare unanimous decision with a focus on the Minister’s failure to give due consideration to the Charter protections flowing from s. 23 of the Charter. The decision set aside the Court of Appeal of the Northwest Territories’ order that restored the former Minister of Education’s discretionary decision. The Court of Appeal adopted a narrow interpretation of the protections of s. 23.[3] The Court of Appeal found that, since the appellants did not have s. 23 rights, the Minister of Education did not have to consider the values that emanate from s. 23 in exercising her discretion.
On appeal to the Supreme Court, the appellant parents argued that the Minister’s decisions ought to have engaged the values underlying the Charter. The respondents maintained that the protections afforded by s. 23 were not engaged because the appellant parents are not rights holders.
i. Application of the Doré Framework Not Limited to Charter Rights
The Supreme Court noted that discretionary administrative decisions that limit Charter protection are reviewed on a standard of reasonableness. A reviewing court begins its analysis by determining whether the decision at issue engaged the Charter by limiting Charter protections – both rights and values. The Court agreed with the respondents that no infringement of s. 23 was established. Regardless, the Doré framework applies not only where an administrative decision directly infringes Charter rights. It equally applies to cases where the decision engages a value underlying Charter rights, without limiting these rights.
ii. Obligation on Decision Makers to Consider Charter Protections
Charter rights and associated protections are afforded a unique role in administrative decision-making. While it is generally up to the applicants to raise issues for the adjudicator’s considerations, administrative decision-makers have an obligation to consider the values relevant to the exercise of their discretion. This includes Charter protections and values. To be reasonable, discretionary decisions must be made in accordance with the relevant values embodied in the Charter; these values serve as constraints on the exercise of ministerial power.
iii. Decisions with “Disproportionate Impact” on Charter Protections are Unreasonable
Once a limitation on Charter protections is found, the ultimate decision must be proportionate to the resulting limitation. In cases where the decision maker gives precedence to the statutory objective over Charter protections, the Supreme Court noted that the reasoning must employ the same “justificatory muscles” as set out R. v. Oakes, which affirmed that the objective to be served by limiting a Charter right must be sufficiently important to warrant overriding this right.[4] The robust analysis required by Doré guides reviewing courts to inquire whether there was an option reasonably open to the decision-maker that would reduce the impact on the protected Charter right while still permitting the decision maker to further the relevant statutory objectives.
iv. The Minister’s Decision Engaged and Limited Charter Protected Afforded by s. 23
The Doré framework’s inclusion of Charter protections, rather than only rights, is essential to its review of the ministerial decision in this case. Section 23’s purposes are preventive, remedial and unifying; the provision imposes a positive obligation on the state to ensure the continued development of language minority communities.
The appellant parents were clearly not rights holders under s. 23. However, the Supreme Court found that the (in)admission of children of parents who are not rights holders under s. 23 could directly impact on the preservation and development of minority language communities. In this case, the admission of the appellant parents’ children would have had a positive impact on the preservation and development of the Francophone community in NWT.
The Minister failed to take these constitutional values into account. In particular, the Supreme Court noted that given the remedial nature of s. 23, pedagogical requirements were not given proper weight compared to the Minister’s concern with adding cost and planning complexity to the government. Further, and contrary to the respondent’s arguments, the existence of the Ministerial Directive, prescribing three categories of admissible non rights holders, did not discharge the Minister from considering the use of her residual discretion or of her obligations under Doré.
Takeaways
- This decision cements the role of the Doré framework and Charter values in discretionary decision-making.
- The framework requires administrative decision makers to consider the relevance of Charter protections and values – and place due weight on these considerations – even if applicants do not have the sophistication to raise these issues on their own.
- The examination of Charter protections, and any limits placed upon them by statutory objectives, must be robust: it should be conducted with the same rigour afforded to the Oakes test.
- A decision by an administrative decision-maker will be unreasonable and set aside if they fail to take steps reasonably open to them to limit the restriction of Charter protections.
[2] See e.g., Law Society of British Columbia v. Trinity Western University, 2018 SCC 32 and Loyola High School v. Quebec (Attorney General), 2015 SCC 12.
[3] A.B. v Northwest Territories (Minister of Education, Culture and Employment), 2021 NWTCA 8.
