Die Another Day: Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31

Reports of the demise of the framework set out in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 SCR 395 have been greatly exaggerated. Today, in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, the Supreme Court of Canada resoundingly restated Doré, now superpowered by the commitment to responsive reasons in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 SCR 653.

This case involved the review of ministerial discretion. Section 23 of the Canadian Charter of Rights and Freedoms creates categories of ‘rights holders’ who, because of their personal circumstances as speakers or learners of a minority language, “have the right to have their children receive primary and secondary school instruction in that language in that province”.

In the Northwest Territories (as in most of Canada), French speakers are the linguistic minority. Years of Supreme Court of Canada jurisprudence on minority language rights have established that, under certain conditions, provinces must make education available in English (in Quebec) or French (everywhere else) to cater for their minority-language community.

In fact, this case involved several exercises of ministerial discretion to deny entry into French-language schools. The Minister had adopted a policy that expanded the s. 23 categories and made a wider group of children eligible to attend school in French. However, the children at issue in this case did not fall within the scope of the policy. The children were either French-language speakers, otherwise embedded in the French-language community in the Northwest Territories or would contribute to the vitality of the community by attending school in French. In each case, the Commission (the provincial Francophone school board) recommended that they be permitted to attend a French-language school. But the children did not fall within the scope of the policy. Essentially on that basis the Minister refused to permit them to attend a French-language school.

This case was, therefore, a pure case of Charter values. No Charter rights were at stake. Instead, the children (and, in the Supreme Court, the Commission) invoked the Charter values underpinning s. 23: “Section 23 has a remedial purpose related to promoting the development of official language minority communities and changing the status quo” (Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13, at para. 3). The provision is “preventive, remedial and unifying in nature”, as it is “intended not only to prevent the erosion of official language communities, but also to redress past injustices and promote the development of those communities” (ibid., at para. 15).

Unanimously, the Court found that the Charter values underpinning s. 23 were engaged and that the Minister had failed to grapple meaningfully with them in his decision. Notably, the Court’s reasons were written by Côté J, who has previously expressed scepticism about Doré: Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, especially at paras. 306-309. Here, however, the Court reaffirmed Doré in no uncertain terms:

Indeed, it has consistently been held that the Doré framework applies not only where an administrative decision directly infringes Charter rights but also in cases where it simply engages a value underlying one or more Charter rights, without limiting these rights (Doré, at paras. 35 et seq.; Loyola, at para. 4; Trinity Western University, at para. 57). This is the case because administrative decision makers have an obligation to consider the values relevant to the exercise of their discretion, in addition to respecting Charter rights. There can be no doubt about this, because “[t]he Constitution — both written and unwritten — dictates the limits of all state action” (Vavilov, at para. 56). As L’Heureux‑Dubé J. clearly stated in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, a discretionary decision, to be reasonable, must be made in accordance with the “fundamental values of Canadian society” as reflected in the Charter (para. 56). Relying on this statement, Abella J. held in Doré that discretionary decisions must “always” take Charter values into consideration (para. 35 (emphasis in original)) (at paras. 64-65).

The methodology of the Doré framework was summarized in the following terms:

a reviewing court must first determine whether the discretionary decision limits Charter protections. If this is the case, the reviewing court must then examine the decision maker’s reasoning process to assess whether, given the relevant factual and legal constraints, the decision reflects a proportionate balancing of Charter rights or the values underlying them. If not, the decision is unreasonable (at para. 73).

To begin with, if a Charter right or value is engaged, “the court must, under the approach laid down in Doré, determine whether the decision is reasonable through an analysis of its proportionality” (at para. 67). This is underscored by the emphasis in Vavilov on responsive reasons. First, a reasonable decision “must reflect the fact that the decision maker considered the Charter values that were relevant to the exercise of its discretion” (at para. 68). Second, indeed, the reasons “show that the decision maker “meaningfully” (Vavilov, at para. 128) addressed the Charter protections to “reflect” the impact that its decision may have on the concerned group or individual (para. 133)” (at para. 68). Third, the reviewing court’s role, accordingly, must be robust: it “must take into account the role of the courts as guardians of the Constitution and must reflect the particular importance of justification in decisions that engage Charter protections (Vavilov, at para. 133)” (at para. 70). Fourth, unlike in ordinary judicial review cases, where it is forbidden to reweigh the factors considered by the decision-maker, “the Doré approach requires reviewing courts to inquire into the weight accorded by the decision maker to the relevant considerations in order to assess whether a proportionate balancing was conducted by the decision maker” (at para. 72).

This is a striking commitment to robust judicial review, building on Vavilov, of infringements of both Charter rights and Charter values. The only limitation (apart from the Charter being engaged) is that the Charter value must be relevant: “it will often be evident that a value must be considered, whether because of the nature of the governing statutory scheme (at para. 108), because the parties raised the value before the administrative decision maker (at paras. 127‑28), or because of the link between the value and the matter under consideration” (at para. 66). This, incidentally, answers the objection that the Doré framework is less rights-protective because the onus does not shift to the state to justify an infringement of the Charter (Trinity Western, at para. 312): in fact, once the relevance of the Charter has been established, the requirement of responsive justification kicks in and necessitates a demonstration of proportionality by the decision-maker.

There is no obvious difference between Charter rights and Charter values in this framework, although there is a distinction made (at para. 65) between “consider[ing]…values” and “respecting Charter rights”. It is also said that the “context constrains” the decision-maker (at para. 68) and one can posit that the context of an infringement of a Charter right may differ (and require more by way of justification) than the infringement of a Charter value. Indeed, it is notable in this case that the obligation on the Minister was to “truly take into account the constitutional values of preservation and development of official language minority communities, in other words, that she meaningfully address the considerations arising therefrom” (at para. 92): it was an obligation to take into account (and meaningfully grapple with) the relevant values rather than to comply with them, as would be the case with a Charter right. Indeed, Côté J was careful to observe that she was not elevating the values underpinning s. 23 to the right itself, as she made clear that there was no “obligation on decision makers in [the Minister’s] position to admit all children of non‑rights holder parents”. More generally, the legal and factual constraints (at para. 73) may play out differently in rights and values cases, not least because the jurisprudence on the content of a Charter right will be one of those legal constraints and limit a decision-maker’s freedom of action more extensively than a value.

On the facts, the underlying values of s. 23 were engaged, as there was a “clear link” between s. 23 and the exercises of discretion “because the decisions were likely to have an impact on a minority language educational environment” (at para. 78). Preserving and developing the minority-language community (which admission of the children would have contributed to) are s. 23 values (at paras. 80-82):

Thus, the decisions rendered by provincial and territorial governments regarding the admission of children of non‑rights holder parents to minority language schools, even when they do not directly infringe the right guaranteed by s. 23, can nevertheless have a significant impact on the preservation and development of minority language communities. It follows that these values are always relevant when the government exercises such a discretion and that they must therefore be taken into account. For the purposes of this appeal, this means that the Minister was required to consider the values of preservation and development of minority language communities in exercising her discretion to decide whether to admit children of non‑rights holder parents to the schools of the Francophone minority in the Northwest Territories (at para. 83).

Here, the evidence demonstrated that “there was a link between the admission of children of non‑rights holder parents to French‑language schools in the Northwest Territories and the preservation and development of the Francophone community there” (at para. 86). Indeed, the evidence showed here that “the admission of the children of the appellant parents would have had considerable benefits for the preservation and development of the language and culture of the minority language community” (at para. 101).

The Minister failed to justify her decisions given the evidence of this link: she failed to consider the Commission’s support for the applications (at para. 98); she did not consider the “individual characteristics of the various applications in relation to the benefits that could result from a decision to grant them” (at para. 99); she attached “too much importance to her duty to make consistent decisions” (at para. 102); and “gave disproportionate weight to the cost of the contemplated services in the exercise of her discretion” (at para. 102). This meant that her reasons did not demonstrate that she “meaningfully addressed the values of preservation and development of the Francophone community of the Northwest Territories so as to reflect the significant impact that the decisions might have on it” (at para. 102).

I suggested a few months ago that a “stable and workable” Doré framework was emerging. So it seems. Perhaps today’s decision could have been clearer on the different roles played by Charter rights and Charter values, and said more on the methodology for identifying Charter values (or, maybe, Charter purposes, at paras. 75, 78). But it is, nonetheless, a resounding restatement of a much-maligned framework. Doré will have to die another day. Vavilov has given it a new lease on life.

This content has been updated on December 8, 2023 at 23:55.