Supreme Court of Canada

Appeal Heard: February 9, 2023 Judgment Rendered: December 8, 2023 Docket: 39915

Parties

Between:

Commission scolaire francophone des Territoires du Nord-Ouest and A.B. — Appellants

— and —

Minister of Education, Culture and Employment of the Northwest Territories — Respondent

And Between:

Commission scolaire francophone des Territoires du Nord-Ouest, A.B., F.A., T.B., E.S. and J.J. — Appellants

— and —

Minister of Education, Culture and Employment of the Northwest Territories — Respondent

— and —

Attorney General of Canada, Attorney General of Quebec, Attorney General of Manitoba, Attorney General of the Yukon Territory, Canadian Francophonie Research Chair on Language Rights, Commissioner of Official Languages of Canada, Fédération nationale des conseils scolaires francophones, Commission nationale des parents francophones, Société de l'Acadie du Nouveau-Brunswick and Yukon Francophone School Board — Interveners

Official English Translation

Indexed as: Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment)

2023 SCC 31

File No.: 39915.

2023: February 9; 2023: December 8.

Present: Wagner C.J. and Karakatsanis, Côté, Martin, Kasirer, Jamal and O'Bonsawin JJ.

on appeal from the court of appeal for the northwest territories

Headnotes

Administrative law — Judicial review — Discretionary administrative decisions engaging Charter protections — Charter values — Territorial ministerial directive allowing categories of parents not holding right to have their children receive instruction in one of two official languages, where it is minority language, to apply to enrol their children in French first language education program — Minister responsible denying applications for enrolment on ground that non-rights holder parents concerned did not meet conditions for various categories established by directive — Whether Minister had to consider purpose of minority language educational rights guaranteed by Charter in exercising her discretion — Whether decisions made by Minister are reasonable.

Constitutional law — Charter of Rights — Minority language educational rights — Non-rights holder parents applying to enrol their children in French first language education program in Northwest Territories — Minister responsible denying applications for enrolment — Whether Minister's decisions engage Charter protections — Canadian Charter of Rights and Freedoms, s. 23.

Summary

Five parents not holding the right guaranteed by s. 23 of the Charter to have their children receive instruction in one of the two official languages, where it is the minority language, applied to the Minister of Education, Culture and Employment of the Northwest Territories ("Minister") for their children's admission to a French first language education program. In each case, the Commission scolaire francophone des Territoires du Nord-Ouest ("CSFTNO") recommended admission because it would promote the development of the Francophone community of the Northwest Territories. In spite of those recommendations, the Minister denied each of the applications for admission on the ground that the non-rights holder parents did not meet the conditions established by the ministerial directive on enrolment in French first language education programs, which created categories of eligible non-rights holders.

The parents and the CSFTNO applied for judicial review. They were successful in the Supreme Court of the Northwest Territories, which set aside the decisions and referred the applications for admission back to the Minister for reconsideration, chiefly because the Minister's decisions did not reflect a proportionate balancing of the protections conferred by s. 23. However, on appeals by the Minister, the Court of Appeal for the Northwest Territories restored the decisions that had been set aside. The majority of the Court of Appeal found that the Minister was not required to consider s. 23 in exercising her discretion because the parents were not rights holders under this provision.

Held: The appeal should be allowed.

The Minister 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's decisions had a significant impact on the values enshrined in this provision. It follows from the requirements laid down in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, that those decisions were unreasonable. 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 orders made by the Court of Appeal are therefore set aside.

Under the approach set out in Doré, which governs the judicial review of discretionary administrative decisions that engage the Charter, a reviewing court must first determine whether the decision limits Charter protections. The Doré framework applies not only where an administrative decision directly infringes Charter rights but also where it simply engages a value underlying one or more Charter rights. Charter values are inseparable from Charter rights, which reflect them, and give meaning to these rights. The choice made by the framers to entrench certain rights in the text of the supreme law of Canada means that the purpose of these rights is important for Canadian society as a whole and must be reflected in the decision-making process of the various branches of government. Administrative decision makers must always consider the values relevant to the exercise of their discretion.

If the discretionary decision limits Charter protections at the first step of the Doré analysis, 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. The focus of judicial review in this context is on the decision actually made by the decision maker, including both the decision maker's reasoning process and the outcome. To be reasonable, a decision must reflect the fact that the decision maker considered the Charter values that were relevant to the exercise of its discretion. It will often be evident that a value is relevant, whether because of the nature of the governing statutory scheme, because the parties raised the value before the administrative decision maker, or because of the link between the value and the matter under consideration. The decision must also show that the decision maker meaningfully addressed the Charter protections to reflect the impact that its decision may have on the concerned group or individual. The standard of reasonableness here requires a robust analysis that works the same justificatory muscles as s. 1 of the Charter. The approach 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. The prescribed 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. The reviewing court must consider whether there were other reasonable possibilities that would give effect to Charter protections more fully in light of the applicable objectives, beyond simply asking whether the decision falls within a range of reasonable outcomes. In this sense, reasonableness and proportionality become synonymous.

The Minister's decisions in this case engage the protections of s. 23. First, the values underlying s. 23 are relevant to the exercise of the Minister's discretion, having regard to the purposes of this provision. 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.

Second, the admission of children of parents who are not rights holders under s. 23 of the Charter can have an impact on the preservation and development of minority language communities. Population growth in the minority language community helps to ensure its development and prevent its decline, including by reducing the likelihood of assimilation and cultural erosion. The admission of children of non-rights holder parents also contributes to fulfilling the promise of s. 23, which is to give effect to the equal partnership of Canada's two official language groups in the context of education. It follows that these values are always relevant when the government exercises its discretion to admit children of non-rights holder parents to minority language schools and that they must therefore always be taken into account, even when there is no direct infringement of the right guaranteed by s. 23.

Here, the values of preservation and development of minority language communities were limited by the Minister's decisions. Because of their collective dimension, the protections conferred by s. 23 of the Charter must be assessed in light of the unique language dynamics of a province or territory. At the time the Minister made her decisions, there was a positive 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. The Minister acknowledged, among other things, that the assimilation rate and exogamous marriages were challenges to be overcome for the transmission of the French language within the Francophone community of the Northwest Territories. The admission of the children in question would thus have helped to reduce the likelihood of assimilation and to prevent cultural erosion.

The Minister therefore had to proportionately balance these values with the government's interests. The reasons for the Minister's decisions do not show that she truly took into account the constitutional values at stake or that she meaningfully addressed the considerations arising therefrom. Several factors showed that the children's admission was beneficial for the development of the Francophone community of the Northwest Territories. First, the Minister did not duly consider the fact that the applications for admission were supported by the CSFTNO, a body with the expertise needed to assess the educational needs of the linguistic minority. Second, the Minister also did not duly consider the individual characteristics of each application in relation to the benefits that could result from a decision to grant it. Among other things, each child concerned had a sound knowledge of French, had significant ties to the Francophone community of the Northwest Territories through their parents, and had the support and commitment of their parents in learning that language. A refusal of admission does not always mean that there was a disproportionate balancing, but in this case, the parents' motivation for applying for their children's admission was mistakenly reduced to a mere desire to provide the children with a linguistic advantage.

Cases Cited

Applied: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395;

Referred to: Mahe v. Alberta, [1990] 1 S.C.R. 342; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678; Mahe v. Alberta (1987), 1987 ABCA 158, 42 D.L.R. (4th) 514; Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201; Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Quebec (Education, Recreation and Sports) v. Nguyen, 2009 SCC 47, [2009] 3 S.C.R. 208; Association des parents de l'école Rose-des-vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; R. v. Oakes, [1986] 1 S.C.R. 103; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Ahani v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2, [2002] 1 S.C.R. 72; Dr Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Salituro, [1991] 3 S.C.R. 654; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130; M. (A.) v. Ryan, [1997] 1 S.C.R. 157; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), [1993] 1 S.C.R. 839; Gosselin (Tutor of) v. Quebec (Attorney General), 2005 SCC 15, [2005] 1 S.C.R. 238; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282; Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; R. v. McGregor, 2023 SCC 4; Attorney General (Que.) v. Cumming, [1978] 2 S.C.R. 605; R. v. Beaulac, [1999] 1 S.C.R. 768; Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261; Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 19, 23.

Commission scolaire francophone, Territoires du Nord-Ouest Regulations, N.W.T. Reg. 071-2000 [am. 117-2020], s. 11(1), (2).

Official Languages Act, R.S.N.W.T. 1988, c. O-1, s. 9(1).

Authors Cited

Daly, Paul. "The Doré Duty: Fundamental Rights in Public Administration" (2023), 101 Can. Bar Rev. 297.

Fox-Decent, Evan, and Alexander Pless. "The Charter and Administrative Law: Substantive Review", in Colleen M. Flood and Paul Daly, eds., Administrative Law in Context, 4th ed. Toronto: Emond Montgomery, 2022, 399.

Northwest Territories. Minister of Education, Culture and Employment. Final Report: Review of the Ministerial Directive — Enrolment of Students in French First Language Education Programs, June 30, 2016 (online: https://www.ece.gov.nt.ca/sites/ece/files/resources/ministerial_french_first_directive_-_directive_review.pdf; archived version: https://scc-csc.ca/cso-dce/2023SCC-CSC31_2_eng.pdf).

Northwest Territories. Minister of Education, Culture and Employment. French First Language School Non-Rights Holder Admission Policy, August 11, 2016 (online: https://www.ece.gov.nt.ca/sites/ece/files/resources/ministerial_french_first_directive_-_non-rights_holder_admission_policy_-_en.pdf; archived version: https://scc-csc.ca/cso-dce/2023SCC-CSC31_1_eng.pdf).

Northwest Territories. Minister of Education, Culture and Employment. Ministerial Directive — Enrolment of Students in French First Language Education Programs, July 7, 2008.

Northwest Territories. Minister of Education, Culture and Employment. Ministerial Directive — Enrolment of Students in French First Language Education Programs (2016), August 11, 2016.

Régimbald, Guy. Canadian Administrative Law, 3rd ed. Toronto: LexisNexis, 2021.

Sossin, Lorne, and Mark Friedman. "Charter Values and Administrative Justice" (2014), 67 S.C.L.R. (2d) 391.

APPEAL from a judgment of the Northwest Territories Court of Appeal (Slatter, Rowbotham and Crighton JJ.A.), 2021 NWTCA 8, 463 D.L.R. (4th) 277, [2021] 12 W.W.R. 133, 90 Admin. L.R. (6th) 90, [2021] N.W.T.J. No. 43 (QL), 2021 CarswellNWT 49 (WL), setting aside two decisions of Rouleau J., 2020 NWTSC 28, [2020] N.W.T.J. no 35 (QL), 2020 CarswellNWT 41 (WL), and 2019 NWTSC 25, 62 Admin. L.R. (6th) 300, [2019] N.W.T.J. no 26 (QL), 2019 CarswellNWT 29 (WL). Appeal allowed.

Perri Ravon, Audrey Mayrand, Mark C. Power and Darius Bossé, for the appellants.

Maxime Faille, Alyssa Tomkins, Paul McKenna and Tristan Joanette, for the respondent.

Ian Demers, for the intervener the Attorney General of Canada.

Manuel Klein and Vicky Samson, for the intervener the Attorney General of Quebec.

Written submissions only by Deborah L. Carlson, for the intervener the Attorney General of Manitoba.

Keith Brown and Lauren Mar, for the intervener the Attorney General of the Yukon Territory.

François Larocque, for the intervener the Canadian Francophonie Research Chair on Language Rights.

Élie Ducharme, for the intervener the Commissioner of Official Languages of Canada.

Roger J. F. Lepage, for the intervener Fédération nationale des conseils scolaires francophones.

David Taylor and Maritza Woël, for the intervener Commission nationale des parents francophones.

Dominic Caron, for the intervener Société de l'Acadie du Nouveau-Brunswick.

Paul Daly, for the intervener the Yukon Francophone School Board.

English version of the judgment of the Court delivered by

Côté J. —

Table of Contents

Section	Paragraph
I. Overview	1
II. Background	10
A. Situation of the Appellant Parents	23
(1) A.B. (Mother of Child W.)	23
(2) F.A. (Mother of Child A.)	29
(3) T.B. (Father of Child V.)	35
(4) E.S. (Mother of Child E.)	38
(5) J.J. (Father of Children T. and N.)	40
III. Judicial History	44
A. Supreme Court of the Northwest Territories, 2019 NWTSC 25 (Rouleau J.)	44
B. Supreme Court of the Northwest Territories, 2020 NWTSC 28 (Rouleau J.)	46
C. Court of Appeal for the Northwest Territories, 2021 NWTCA 8, 463 D.L.R. (4th) 277 (Slatter, Rowbotham and Crighton JJ.A.)	50
(1) Majority Reasons (Slatter and Crighton JJ.A.)	52
(2) Concurring Reasons (Rowbotham J.A.)	55
IV. Issues	58
V. Analysis	59
A. Doré Framework	60
B. The Decisions Engage the Protections of Section 23	75
(1) The Values Underlying Section 23 Are Relevant to the Exercise of the Minister's Discretion	75
(2) The Minister's Decisions Have the Effect of Limiting the Values Underlying Section 23	84
C. The Minister Did Not Proportionately Balance the Values Underlying Section 23 With the Government's Interests	92
D. It Is Neither Necessary nor Appropriate for This Court To Rule on the Allegation That the Right To Use French or the Right To Be Heard Was Infringed	104
VI. Disposition	114

I. Overview

[ 1 ] A legal guarantee with unique features, s. 23 of the Canadian Charter of Rights and Freedoms grants a defined category of Canadian citizens the right to have their children receive instruction in one of the two official languages where it is the minority language (Mahe v. Alberta, [1990] 1 S.C.R. 342, at p. 365). The provision has three purposes; it is at once preventive, remedial and unifying (Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2020 SCC 13, [2020] 1 S.C.R. 678, at para. 15).

[ 2 ] Section 23 has two features that make it stand out from the rest of Canada's constitutional landscape. First, unlike certain other constitutional provisions that impose only negative obligations, s. 23 imposes positive obligations on the state. This is the case because the very existence of s. 23 "implies the inadequacy of the present regime" (Mahe, at p. 363, quoting Mahe v. Alberta (1987), 1987 ABCA 158, 42 D.L.R. (4th) 514 (C.A.), at p. 534, per Kerans J.A.; Conseil scolaire francophone de la Colombie-Britannique, at para. 15). Section 23 is therefore meant to alter the status quo, and its application "will of necessity affect the future of minority language communities" (Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14, [2005] 1 S.C.R. 201, at para. 23).

[ 3 ] Second, s. 23 differs from other provisions of the Charter because of the collective scope of the individual rights it grants (Arsenault-Cameron v. Prince Edward Island, 2000 SCC 1, [2000] 1 S.C.R. 3, at paras. 27 and 29; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3, at para. 23; Solski, at para. 33; Quebec (Education, Recreation and Sports) v. Nguyen, 2009 SCC 47, [2009] 3 S.C.R. 208, at para. 23; Conseil scolaire francophone de la Colombie-Britannique, at para. 17).

[ 4 ] It is important to note that minority language schools play a vital role in fulfilling the promise contained in s. 23 of the Charter, which is to "give effect to the equal partnership of the two official language groups in the context of education" (Arsenault-Cameron, at para. 26; see also Mahe, at p. 364; Association des parents de l'école Rose-des-vents v. British Columbia (Education), 2015 SCC 21, [2015] 2 S.C.R. 139, at para. 27). These schools are settings for socialization where the language of minority language communities is passed on and where their culture can be expressed. The preservation and vitality of these educational environments promote the development of the minority language communities they serve (Mahe, at p. 363; Conseil scolaire francophone de la Colombie-Britannique, at para. 1).

[ 5 ] There has been a Francophone presence in the Northwest Territories since the 18th century, but instruction in French has been offered only since 1989 in Yellowknife and since 1998 in Hay River. This appeal is about whether the refusal to admit children of non-rights holder parents to minority language schools in the Northwest Territories gave due consideration to the protections conferred by s. 23 of the Charter, having regard to the three purposes of this section, which is at once preventive, remedial and unifying in nature.

[ 6 ] Five non-rights holder parents asked the then Minister of Education, Culture and Employment ("Minister") to exercise her discretion to admit their children to a French first language education program. In each case, the Commission scolaire francophone des Territoires du Nord-Ouest ("CSFTNO") recommended admission, essentially because it would promote the development of the Francophone community of the Northwest Territories. It is important to note that the CSFTNO represents the interests of the holders of s. 23 rights, including in their collective aspect. Nevertheless, in spite of the CSFTNO's recommendations, the Minister denied each of the applications for admission.

[ 7 ] The parents and the CSFTNO applied for judicial review. They were successful in the Supreme Court of the Northwest Territories, which set aside the decisions and referred the applications for admission back to the Minister for reconsideration, chiefly because the Minister's decisions did not reflect a proportionate balancing of the protections conferred by s. 23. However, on appeals by the Minister, the Court of Appeal for the Northwest Territories restored the decisions that had been set aside. The majority of the Court of Appeal found that the Minister was not required to consider s. 23 in exercising her residual discretion given the fact that the appellant parents were not rights holders under this provision. The children of the appellant parents have since been admitted or have ceased residing in the Northwest Territories. However, it remains important for this Court to determine what role, if any, s. 23 had to play in the Minister's decision-making process. If this Court does not intervene, it might be argued that governments need not give due consideration to the values reflected in the three purposes of s. 23 when making decisions that affect s. 23 rights holders or that engage this provision.

[ 8 ] For the reasons that follow, I conclude that the Minister was required not only to consider the values embodied in s. 23 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 these values and the government's interests. Since she did not do so, I am of the view that the appeal should be allowed and the orders made by the Court of Appeal set aside on the basis of this first ground of appeal.

[ 9 ] As a second ground of appeal, the appellants allege that their right to use French, guaranteed to them by s. 19(1) of the Charter and s. 9(1) of the Official Languages Act, R.S.N.W.T. 1988, c. O-1 ("OLA"), was infringed by the Court of Appeal because they could not be understood by that court without an interpreter. In the alternative, they argue that their right to natural justice was infringed because of the quality of the interpretation services. Given my conclusion on the first ground of appeal, I am of the view that it is neither necessary nor appropriate for me to rule on this second ground.

II. Background

[ 10 ] Two public schools offer a French first language education program in the Northwest Territories. The first, École Allain St-Cyr, was built in 1999 and is located in Yellowknife. The second, École Boréale, was built in 2005 and is located in Hay River.

[ 11 ] On July 7, 2008, the Northwest Territories Department of Education, Culture and Employment adopted the Ministerial Directive — Enrolment of Students in French First Language Education Programs ("2008 Directive") to govern the admission of children of rights holder and non-rights holder parents to French first language education programs. In the case of children of non-rights holder parents, the 2008 Directive simply stated that the minister could approve their admission to a French first language education program. However, it said nothing about the basis for making such a decision.

[ 12 ] The 2008 Directive remained in force until a new directive was adopted in 2016 further to the Final Report: Review of the Ministerial Directive — Enrolment of Students in French First Language Education Programs prepared on June 30, 2016, by the Department of Education, Culture and Employment (online).

[ 13 ] The Report recognizes that "the sustainability of the school and broader community is dependent on the ability to expand" (p. 10). It notes a lack of transparency in the handling of admissions of children of non-rights holder parents to the schools of the Francophone minority in the Northwest Territories (p. 17). In addition, the Report points out that natural growth of the rights holder population and the migration of rights holders "may not be sufficient to maintain a level of population sufficient for supporting French first language schools, particularly in Hay River" (p. 20).

[ 14 ] To "[a]llow for the sustainment and growth of the French first language communities" (p. 21), the Report therefore recommends that the minister revise the 2008 Directive to allow the admission of the following categories of children of non-rights holder parents:

(a) Children of parents who would have been rights holders but for their parent's or grandparent's lack of opportunity to attend a French first language school,

(b) Those who meet the criteria of section 23 of the Charter but are not Canadian citizens, and

(c) Immigrants to Canada, who upon arrival, do not speak English or French and are enrolling in a Canadian school for the first time . . . .

(p. 21)

[ 15 ] The Report also recommends that children of non-rights holder parents not be admitted to a school of the Francophone minority in the Northwest Territories if enrolment at the school is at or exceeds 85 percent capacity, as per the Northwest Territories Schools Capital Standards and Criteria (p. 21).

[ 16 ] On August 11, 2016, the then Minister of Education, Culture and Employment adopted the Ministerial Directive — Enrolment of Students in French First Language Education Programs (2016) ("2016 Directive") (reproduced in A.R., vol. III, at p. 34). The 2016 Directive stated that the Government of the Northwest Territories is "committed to supporting language and culture revitalization", an "inherent part" of which is supporting "population growth". To this end, the 2016 Directive provided for the admission of children of "eligible non-rights holder parents".

[ 17 ] To be eligible under the 2016 Directive, non-rights holder parents had to meet the conditions for one of the following streams:

Reacquisition — The parent would have been a rights holder but for his or her lack of opportunity to attend a French first language school or his or her parent's lack of opportunity to attend a French first language school (i.e. the child's grandparent);

Non-citizen francophone — The parent meets the criteria of section 23 of the Canadian Charter of Rights and Freedoms except for the fact that he or she is not a Canadian citizen; or

New immigrant — The parent is an immigrant to Canada, whose child upon arrival, does not speak English or French and is enrolling in a Canadian school for the first time.

[ 18 ] The 2016 Directive also provides for a residual discretion and states that the minister "may" approve a non-rights holder parent's application. The Minister thus had the authority to approve an application even if the parent did not meet the conditions for one of the three streams.

[ 19 ] In the case of eligible non-rights holder parents, the 2016 Directive requires the school board to verify the eligibility of the applicants and prepare a recommendation for the minister. Section 11(1) of the Commission scolaire francophone, Territoires du Nord-Ouest Regulations, N.W.T. Reg. 071-2000 [am. 117-2020] ("CSFTNO Regulations") states that the CSFTNO is responsible for determining whether a student meets the eligibility requirements established by the minister. Section 11(2) provides that the CSFTNO "shall establish a process for determining whether [a] student meets" those requirements.

[ 20 ] The 2016 Directive also states that the minister retains "[t]he authority to make decisions that are consistent with the principles and priorities of the government's language, culture and education policies" (A.R., vol. III, at p. 34). This reflects the minister's general policy-making authority in this field (see s. 11(1) of the Education Act, S.N.W.T. 1995, c. 28, which gives the minister the power "[t]o establish, in consultation with school boards, policies to guide and direct the provision of education in the Northwest Territories").

[ 21 ] Since the 2016 Directive was adopted, five non-rights holder parents (the "appellant parents") have applied for the admission of their children. The facts of these cases are set out below.

[ 22 ] I should add a general note here. Given the nature of the issue raised in this appeal and the fact that the children of the appellant parents have since been admitted to a school of the Francophone minority or have moved outside the Northwest Territories, I will sometimes refer below to these children using initials in order to preserve their anonymity.

A. Situation of the Appellant Parents

(1) A.B. (Mother of Child W.)

[ 23 ] On October 11, 2017, A.B. applied for the admission of her child, W., to École Allain St-Cyr in Yellowknife. A.B. and her spouse are from Rwanda and immigrated to Canada after 2010. They arrived in Yellowknife in 2016. French is their first language. After arriving in Yellowknife, they became involved in Francophone community life. A.B.'s spouse worked as a technician and A.B. was employed by the federal government. They also had a business in the informal economy.

[ 24 ] The CSFTNO supported A.B.'s application. It recommended the admission of W. to École Allain St-Cyr "to curb losses to the [Francophone] community and halt the decline in numbers at [École Allain St-Cyr]" (A.R., vol. IV, at p. 222). It also noted that the school "could benefit . . . from the admission of this family's child due to the level of French" (p. 222).

[ 25 ] On December 20, 2017, the Minister refused to admit W. in the "New immigrant" stream of the 2016 Directive. In her view, the parents were not "[n]ew immigrants" because they had not arrived in Canada "upon arrival" without speaking English or French.

[ 26 ] In a letter dated June 18, 2018, A.B. asked the Minister to exercise her residual discretion to admit W. to École Allain St-Cyr because "W. has the right to develop in the Official Language of his/her choice" (A.R., vol. IV, at p. 231). In that letter, A.B. also noted that her child's admission was supported by the CSFTNO.

[ 27 ] On September 11, 2018, the Minister refused to exercise her residual discretion to admit W. to École Allain St-Cyr. In her reasons, the Minister stated that "[t]he family does not meet the criteria of the 2016 Directive" (A.R., vol. IV, at p. 233). The Minister also noted that A.B. had not shown that she had tried other ways of maintaining a connection to the Francophone community in the Northwest Territories.

[ 28 ] In a letter dated November 26, 2018, A.B. again asked the Minister to exercise her residual discretion to admit W. to École Allain St-Cyr. The Minister did not respond to this request and, as a result, A.B. brought a judicial review application before the Supreme Court of the Northwest Territories.

(2) F.A. (Mother of Child A.)

[ 29 ] On February 18, 2019, F.A. applied for the admission of her child, A., to École Allain St-Cyr. A.'s parents had arrived in Yellowknife in 2013. French is their second language, and they routinely spoke it with their children. Since arriving in Yellowknife, the parents had been involved in Francophone community life in the Northwest Territories. F.A.'s spouse was on the board of directors of Garderie Plein Soleil, and A. attended that daycare centre. In addition, F.A. and her spouse, who are both physicians, made an effort to offer their patients services in French. F.A. applied for admission in the "Reacquisition" stream of the 2016 Directive and, alternatively, on the basis of the Minister's residual discretion.

[ 30 ] The CSFTNO supported F.A.'s applications. In its report, the CSFTNO explained that the child's admission would help "cur[b] losses to the community, where parents are free to enrol their children in majority-language schools. There is also the loss of rights holder status when parents choose schools outside the CSFTNO", and admission would enable the child to continue living in French as well (A.R., vol. V, at p. 194). In addition, the CSFTNO noted that admitting A. "would be a way of recognizing and supporting diversity in the school system" in the Northwest Territories (p. 196).

[ 31 ] On April 18, 2019, the Minister refused to admit A. in the "Reacquisition" stream of the 2016 Directive because there was nothing to show that one of A.'s parents or grandparents would have been a rights holder but for a lack of opportunity to attend a French first language education program.

[ 32 ] In a letter dated June 20, 2019, F.A. asked the Minister to reconsider her decision and exercise her residual discretion to admit her child to École Allain St-Cyr. In that letter, F.A. reiterated the close professional and personal ties between her family and Yellowknife's Francophone community.

[ 33 ] On August 19, 2019, the Minister refused to admit A. using her residual discretion. In her reasons, the Minister pointed out that F.A.'s family did not meet the criteria of the 2016 Directive and that enrolling non-rights holder children in French first language programs "creates costs for the [CSFTNO] and the government, and these costs must be justified by an important goal, such as the maintenance and development of minority official language communities" (A.R., vol. V, at p. 207). In the Minister's opinion, this goal was not met in F.A.'s case.

[ 34 ] F.A. then applied for judicial review of the Minister's decision before the Supreme Court of the Northwest Territories.

(3) T.B. (Father of Child V.)

[ 35 ] T.B. applied for the admission of his child, V., to École Allain St-Cyr. T.B. had arrived in Canada in 2004. He is of Vietnamese origin, and his children speak French as a first language. T.B.'s partner is French-Canadian, and French is the language predominantly used in the family. Since 2007, T.B. has been involved in Francophone community life in the Northwest Territories. He had previously been a member of the CSFTNO board of directors and had helped co-found the Francophone soccer league. T.B. applied for admission in the "Reacquisition" stream of the 2016 Directive.

[ 36 ] The CSFTNO supported T.B.'s application. It recommended the admission of V. to École Allain St-Cyr because, among other things, the admission "would help maintain the French environment at school" and would also "promot[e] the transmission of the French language in order to curb assimilation in the French-speaking community" (A.R., vol. VI, at p. 76).

[ 37 ] On August 19, 2019, the Minister refused to admit V. in the "Reacquisition" stream of the 2016 Directive because, in her view, T.B. had not provided evidence showing that V.'s grandparents had been deprived of the opportunity to attend a French first language school. T.B. then applied for judicial review before the Supreme Court of the Northwest Territories.

(4) E.S. (Mother of Child E.)

[ 38 ] E.S. applied for the admission of her child, E., to École Boréale in Hay River. E.S. immigrated to Canada from France in 2004. She had been involved in the Francophone community of Hay River since 2010 by volunteering with various Francophone organizations, including a community centre in Hay River. Her child attended a French daycare centre and had extensive ties to the Francophone community of Hay River. E.S. applied for admission in the "New immigrant" stream of the 2016 Directive.

[ 39 ] The CSFTNO supported E.S.'s application. In its assessment, it noted that E.S.'s child's admission to École Boréale was "a step that would promote the vitality of the school and of the Francophone community" and "would slow down assimilation without requiring any additional francization resources" (A.R., vol. VI, at p. 180). On August 19, 2019, the Minister refused to admit E. in the "New immigrant" stream of the 2016 Directive because E.S. had arrived in Canada speaking French and therefore did not meet the conditions of this stream. E.S. then applied for judicial review.

(5) J.J. (Father of Children T. and N.)

[ 40 ] J.J. applied for the admission of his two children, T. and N., to École Allain St-Cyr. His partner is a francophone. The language used predominantly in their family is French. J.J.'s children had attended Francophone daycare centres and the children "already know French" (A.R., vol. VII, at p. 44). J.J. applied for admission in the "Reacquisition" stream of the 2016 Directive.

[ 41 ] The CSFTNO supported J.J.'s application. In its assessment, it noted that admitting J.J.'s children to École Allain St-Cyr "would have a positive impact on the vitality of the school and the French-speaking community" (A.R., vol. VII, at p. 45). In its view, this decision "would have no negative educational impact" (p. 45).

[ 42 ] On August 19, 2019, the Minister refused to admit T. and N. in the "Reacquisition" stream of the 2016 Directive because J.J. had not provided evidence showing that he himself had been deprived of the opportunity to attend a French first language school.

[ 43 ] J.J. then applied for judicial review.

III. Judicial History

A. Supreme Court of the Northwest Territories, 2019 NWTSC 25 (Rouleau J.)

[ 44 ] In his first decision, Rouleau J. considered A.B.'s judicial review application. He found that the Minister had failed to exercise her residual discretion in a constitutionally compliant manner. In his view, the Minister was required to conduct a proportionate balancing of the Charter values at stake with the government's objectives. Since the Minister had not done so, her decision was unreasonable.

[ 45 ] Rouleau J. therefore set aside the Minister's decision and referred the application for the admission of W. back to the Minister for reconsideration.

B. Supreme Court of the Northwest Territories, 2020 NWTSC 28 (Rouleau J.)

[ 46 ] Rouleau J.'s second decision concerned the judicial review applications of F.A., T.B., E.S. and J.J. As in his first decision, Rouleau J. found that the Minister's decisions were unreasonable because they did not reflect a proportionate balancing of the Charter values at stake with the government's interests. He set aside the Minister's decisions in those cases and referred the applications for admission back to the Minister.

[ 47 ] Rouleau J. also addressed A.B.'s case in his second decision, because the Minister had again refused to admit W. following the reconsideration ordered by Rouleau J. in his first decision. He found that the Minister's second refusal was again unreasonable, since the Minister had this time refused to admit W. on the basis of costs alone. He therefore set aside this second refusal.

[ 48 ] Rouleau J. observed that the Minister's decisions had not taken into account the collective dimension of s. 23 rights and had given too much weight to cost considerations. He also noted that the CSFTNO's recommendation in favour of admitting the children should have been given "special weight" given that the CSFTNO is the body entrusted by law to represent rights holders (para. 135).

[ 49 ] In his reasons, Rouleau J. considered the Doré framework — applicable to administrative decisions that engage Charter protections — and the requirements flowing from it. In his view, the Minister could not simply disregard s. 23 on the ground that the appellant parents were not rights holders under that provision. Rather, the Minister was required to conduct a proportionate balancing of the values underlying s. 23 — in particular, the values of preservation and development of the Francophone community of the Northwest Territories — with the government's interests.

C. Court of Appeal for the Northwest Territories, 2021 NWTCA 8, 463 D.L.R. (4th) 277 (Slatter, Rowbotham and Crighton JJ.A.)

[ 50 ] The Minister appealed from Rouleau J.'s two decisions. The Court of Appeal consolidated the two appeals and allowed them.

[ 51 ] All three judges of the Court of Appeal agreed that Rouleau J. had erred in conducting what amounted to a de novo review of the Minister's decision. However, they disagreed on whether the Minister was required to conduct a proportionate balancing of the protections conferred by s. 23.

(1) Majority Reasons (Slatter and Crighton JJ.A.)

[ 52 ] Slatter and Crighton JJ.A. rejected the appellants' submission that the Minister had to take s. 23 into account in exercising her discretion to admit children of non-rights holder parents. In their view, s. 23 of the Charter did not apply because the appellant parents were not rights holders under this provision.

[ 53 ] Relying on the decision in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, the majority found that the common law principles of judicial review apply to discretionary decisions such as the Minister's. Since Doré, those principles recognize the ability of administrative decision makers to exercise their discretion in a manner consistent with Charter values. The majority reasoned, however, that where the Charter does not apply, Charter values do not apply either.

[ 54 ] The majority further held that even if the Doré framework applied, the Minister's decisions would be reasonable. The Minister had exercised her discretion on the basis of a reasonable, albeit contestable, interpretation of the 2016 Directive and had given reasons justifying her decisions.

(2) Concurring Reasons (Rowbotham J.A.)

[ 55 ] Rowbotham J.A. agreed with the majority that Rouleau J. had erred, but she disagreed with the majority's conclusion that Doré did not apply. In her view, s. 23 values are relevant to the exercise of the Minister's discretion even with respect to non-rights holders. She explained that the admission of children of non-rights holder parents can affect the development of the Francophone minority community and that the Minister therefore had to consider s. 23 values in exercising her discretion.

[ 56 ] However, the decisions rendered by the Minister in 2019 concerning W. and the other children were reasonable. The Minister had addressed the relevant factors in reasons that were coherent, intelligible and transparent. She had justified her decisions. The reasonableness standard did not allow the reviewing judge to substitute his assessment of those factors for that of the Minister.

[ 57 ] Like her colleagues, Rowbotham J.A. would therefore have allowed the appeal from the judgment rendered by Rouleau J. in 2020 on judicial review.

IV. Issues

[ 58 ] This appeal raises the following issues:

(1) Did the Minister have to consider the purpose of s. 23 of the Charter in exercising her discretion with respect to the admission of children of non-rights holder parents to French first language education programs?

(2) Are the Minister's decisions reasonable?

(3) Was the appellants' right to use French before the Court of Appeal for the Northwest Territories under s. 19 of the Charter or s. 9(1) of the OLA infringed?

(4) In the alternative, was the appellants' right to be heard infringed before the Court of Appeal for the Northwest Territories?

V. Analysis

[ 59 ] In oral argument before this Court, counsel for the appellants, before turning to the approach established in Doré, first submitted that the Minister's decisions were contrary to the requirements of s. 23 of the Charter as set out in this Court's jurisprudence. It is through the lens of Doré, which governs the judicial review of administrative decisions that engage the Charter, that the Minister's decisions must be considered. This case is a straightforward application of that precedent.

A. Doré Framework

[ 60 ] The Doré framework governs the judicial review of discretionary administrative decisions that engage the Charter. Under this framework, a reviewing court must first determine whether the decision limits Charter protections. If so, the court must then examine whether the decision reflects a proportionate balancing of Charter rights or the values underlying them with the statutory objectives (Doré, at paras. 55-58; Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at paras. 3-4).

[ 61 ] The Doré framework applies not only where an administrative decision directly infringes Charter rights but also where it simply engages a value underlying one or more Charter rights. The court explained this in Doré as follows (at para. 35):

[A]dministrative bodies . . . must act consistently with the values underlying the grant of discretion, including Charter values. . . . This means that decision-makers should, in all cases, seek to act consistently with Charter values in the exercise of their statutory discretion.

[ 62 ] Charter values are inseparable from Charter rights, which reflect them, and give meaning to these rights. The choice made by the framers to entrench certain rights in the text of the supreme law of Canada means that the purpose of these rights is important for Canadian society as a whole and must be reflected in the decision-making process of the various branches of government. Administrative decision makers must always consider the values relevant to the exercise of their discretion.

[ 63 ] Under the Doré framework, an administrative decision can engage Charter protections in two ways. First, a decision can directly limit a Charter right by infringing it. Second, a decision can engage a value underlying a Charter right without directly infringing the right itself. In both cases, the Doré framework applies.

[ 64 ] The first step of the Doré analysis asks whether the decision limits Charter protections. The question is not whether the decision engages a Charter right per se, but whether it engages the values underlying one or more Charter rights. Values and rights are closely related, but they are not identical. A value can be relevant even where a right is not directly engaged.

[ 65 ] This Court has recognized that Charter values can be relevant to the exercise of administrative discretion even where no Charter right is directly infringed. In Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, for example, this Court held that the values reflected in the Convention on the Rights of the Child — specifically, the best interests of the child — were relevant to the exercise of the ministerial discretion in question. This approach reflects the principle that administrative decision makers must exercise their discretion in a manner consistent with the values underlying their statutory grant of discretion.

[ 66 ] The Doré framework is consistent with the Vavilov framework for judicial review. Under Vavilov, a reviewing court must examine whether a decision is reasonable, meaning whether it is "based on an internally coherent and rational chain of analysis" and is "justified in relation to the facts and law that constrain the decision maker" (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 85). Where Charter values are at stake, the analysis must be particularly rigorous.

[ 67 ] It follows from the Doré framework that an administrative decision maker must consider Charter values in the exercise of its discretion, even where no Charter right is directly infringed. The extent to which Charter values are relevant will depend on the circumstances, including the nature of the decision, the statutory scheme, and the impact of the decision on the persons affected.

[ 68 ] I now turn to the second step of the Doré analysis. If the discretionary decision limits Charter protections, the reviewing court must 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.

[ 69 ] The focus of judicial review in this context is on the decision actually made by the decision maker, including both the decision maker's reasoning process and the outcome. To be reasonable, a decision must reflect the fact that the decision maker considered the Charter values that were relevant to the exercise of its discretion. It will often be evident that a value is relevant, whether because of the nature of the governing statutory scheme, because the parties raised the value before the administrative decision maker, or because of the link between the value and the matter under consideration (Doré, at para. 57; Loyola, at para. 4).

[ 70 ] In the context of discretionary decisions that engage Charter protections, the standard of reasonableness must allow for a "robust . . . analysis" (Loyola, at para. 3 (emphasis in original)) that works the same "justificatory muscles" as the test set out in R. v. Oakes, [1986] 1 S.C.R. 103 (Doré, at para. 5; Loyola, at para. 40; Trinity Western University, at paras. 79-82). The approach 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). When a decision engages Charter values, "reasonableness and proportionality become synonymous" (Trinity Western University, at para. 80).

[ 71 ] As a general rule, a reviewing court must not, in assessing the reasonableness of a decision, reweigh the factors underlying the decision or conduct a de novo analysis of the issues raised. If the decision maker took into account all the considerations that were relevant in the context, the reviewing court must uphold its decision (Vavilov, at para. 83; Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 38; Ahani v. Canada (Minister of Citizenship and Immigration), 2002 SCC 2, [2002] 1 S.C.R. 72, at para. 16; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at para. 42; Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 39; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 64; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at para. 91; Canada Post Corp. v. Canadian Union of Postal Workers, 2019 SCC 67, [2019] 4 S.C.R. 900, at para. 40).

[ 72 ] However, in the context of decisions that engage Charter protections, the reviewing court must also assess whether the decision maker gave sufficient weight to Charter values. The reviewing court must consider whether there were other reasonable possibilities that would give effect to Charter protections more fully in light of the applicable objectives, beyond simply asking whether the decision falls within a range of reasonable outcomes (Trinity Western University, at para. 80; Loyola, at para. 4).

[ 73 ] The prescribed 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 (Doré, at paras. 57-58; Loyola, at paras. 3-4).

[ 74 ] I will now apply this framework to the facts of this case.

B. The Decisions Engage the Protections of Section 23

(1) The Values Underlying Section 23 Are Relevant to the Exercise of the Minister's Discretion

[ 75 ] The first question is whether the values underlying s. 23 are relevant to the exercise of the Minister's discretion to admit children of non-rights holder parents to French first language schools in the Northwest Territories. In my view, they clearly are.

[ 76 ] Section 23 of the Charter has three purposes: the right to instruction in the minority official language is at once preventive, remedial and unifying in nature (Conseil scolaire francophone de la Colombie-Britannique, at para. 15). 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.

[ 77 ] Section 23 differs from other provisions of the Charter because of the collective scope of the individual rights it grants. Unlike other rights that are exercised individually, s. 23 rights can only be exercised as a group (Arsenault-Cameron, at paras. 27 and 29; Doucet-Boudreau, at para. 23; Solski, at para. 33; Nguyen, at para. 23; Conseil scolaire francophone de la Colombie-Britannique, at para. 17). This means that s. 23 rights are not just about the individual parents who hold them; they are also about the broader Francophone community and its development.

[ 78 ] Minority language schools play a vital role in fulfilling the promise of s. 23, which is to give effect to the equal partnership of Canada's two official language groups in the context of education (Arsenault-Cameron, at para. 26; Association des parents de l'école Rose-des-vents, at para. 27). These schools are settings for socialization where the language of minority language communities is passed on and where their culture can be expressed. The preservation and vitality of these educational environments promote the development of the minority language communities they serve (Mahe, at p. 363; Conseil scolaire francophone de la Colombie-Britannique, at para. 1).

[ 79 ] Minority language schools therefore serve a dual purpose. They provide instruction in the minority official language to the children of rights holders, and they also promote the development of the minority language community as a whole. This dual purpose means that decisions about admission to minority language schools can have an impact on the preservation and development of the minority language community, regardless of whether the children seeking admission are the children of rights holders.

[ 80 ] This Court has consistently recognized that s. 23 has a remedial purpose. Section 23 is meant to correct past injustices and to reverse the trend of assimilation. It imposes positive obligations on the state to provide instruction in the minority official language where numbers warrant. This remedial purpose means that s. 23 values must be given particular weight in the exercise of administrative discretion.

[ 81 ] The CSFTNO represents the interests of the holders of s. 23 rights, including in their collective aspect. Under the CSFTNO Regulations, the CSFTNO is responsible for determining whether a student meets the eligibility requirements established by the minister and for making recommendations to the minister. This means that the CSFTNO has particular expertise in assessing the educational needs of the Francophone minority community.

[ 82 ] When the CSFTNO recommends the admission of a child of a non-rights holder parent, this recommendation reflects the CSFTNO's assessment that the admission would promote the development of the Francophone community. This recommendation is therefore directly relevant to the values underlying s. 23.

[ 83 ] I therefore conclude that the values underlying s. 23 are relevant to the exercise of the Minister's discretion to admit children of non-rights holder parents to French first language schools in the Northwest Territories. The Minister was required to consider these values in exercising her discretion.

(2) The Minister's Decisions Have the Effect of Limiting the Values Underlying Section 23

[ 84 ] The second question is whether the Minister's decisions have the effect of limiting the values underlying s. 23. In my view, they do.

[ 85 ] Because of their collective dimension, the protections conferred by s. 23 of the Charter must be assessed in light of the unique language dynamics of a province or territory. At the time the Minister made her decisions, there was a positive 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.

[ 86 ] The Minister acknowledged, among other things, that the assimilation rate and exogamous marriages were challenges to be overcome for the transmission of the French language within the Francophone community of the Northwest Territories. The admission of the children in question would thus have helped to reduce the likelihood of assimilation and to prevent cultural erosion.

[ 87 ] The schools of the Francophone minority in the Northwest Territories face particular challenges. École Allain St-Cyr and École Boréale are located in communities where the Francophone minority is small. The viability of these schools depends on their ability to attract students. If the schools cannot attract enough students, they may not be able to offer a full range of programs or to maintain a quality educational environment.

[ 88 ] The admission of children of non-rights holder parents can contribute to the viability of minority language schools by increasing the number of students. This, in turn, can promote the development of the Francophone community by providing a stronger educational environment for the children of rights holders.

[ 89 ] Population growth in the minority language community helps to ensure its development and prevent its decline, including by reducing the likelihood of assimilation and cultural erosion. The admission of children of non-rights holder parents also contributes to fulfilling the promise of s. 23, which is to give effect to the equal partnership of Canada's two official language groups in the context of education.

[ 90 ] It follows that the values underlying s. 23 are always relevant when the government exercises its discretion to admit children of non-rights holder parents to minority language schools and that they must therefore always be taken into account, even when there is no direct infringement of the right guaranteed by s. 23.

[ 91 ] Here, the values of preservation and development of minority language communities were limited by the Minister's decisions. The Minister's refusals to admit the children of the appellant parents had the effect of limiting these values, because their admission would have contributed to the preservation and development of the Francophone community of the Northwest Territories.

C. The Minister Did Not Proportionately Balance the Values Underlying Section 23 With the Government's Interests

[ 92 ] Having established that the Minister's decisions engage the protections of s. 23, I must now determine whether the Minister conducted a proportionate balancing of the values underlying that provision with the government's interests.

[ 93 ] In my view, the Minister did not conduct such a proportionate balancing. The reasons for the Minister's decisions do not show that she truly took into account the constitutional values at stake or that she meaningfully addressed the considerations arising therefrom.

[ 94 ] Several factors showed that the children's admission was beneficial for the development of the Francophone community of the Northwest Territories. I will address two of these factors.

[ 95 ] First, the Minister did not duly consider the fact that the applications for admission were supported by the CSFTNO. The CSFTNO is a body with the expertise needed to assess the educational needs of the linguistic minority. It is responsible under the CSFTNO Regulations for determining eligibility and making recommendations to the minister. Its recommendations reflect the CSFTNO's assessment of whether admission would promote the development of the Francophone community.

[ 96 ] The CSFTNO recommended the admission of each of the children of the appellant parents. In each case, the CSFTNO found that admission would promote the development of the Francophone community of the Northwest Territories. The Minister rejected these recommendations without adequately explaining why.

[ 97 ] The majority in Conseil scolaire francophone de la Colombie-Britannique recognized that school boards play an important role in the management and control of minority language education (Conseil scolaire francophone de la Colombie-Britannique, at paras. 3 and 75). The CSFTNO is the body entrusted by law to represent the interests of s. 23 rights holders and to manage the schools of the Francophone minority in the Northwest Territories. Its recommendations about admission decisions are therefore entitled to significant weight.

[ 98 ] By failing to give adequate weight to the CSFTNO's recommendations, the Minister gave insufficient weight to the values underlying s. 23.

[ 99 ] Second, the Minister also did not duly consider the individual characteristics of the various applications in relation to the benefits that could result from a decision to grant them. The level of French knowledge of A.B.'s child and F.A.'s child, the ties of the families of A.B., F.A. and J.J. to the Francophone community of the Northwest Territories, and the Franco-Vietnamese identity of T.B.'s family are characteristics the Minister had to assess carefully. By disregarding these factors, the Minister mistakenly reduced the appellant parents' motivation for applying for their children's admission to a mere desire to provide the children with a linguistic advantage.

[ 100 ] At the time of the applications for admission, each child concerned had a sound knowledge of French, had significant ties to the Francophone community of Yellowknife or Hay River through their parents, and had the support and commitment of their parents in learning that language. When the application for W.'s admission was made, W. was able to have a conversation in French without any difficulty or need for support, using a varied vocabulary. School officials at École Allain St-Cyr anticipated that W.'s admission would not require any additional francization resources. Similarly, the CSFTNO noted that the admission of F.A.'s child and T.B.'s child to École Allain St-Cyr "would help maintain the French environment at school" and would also "promot[e] the transmission of the French language in order to curb assimilation in the French-speaking community" (A.R., vol. V, at p. 195; A.R., vol. VI, at p. 76). Likewise, the admission of E.S.'s child to École Boréale was viewed as a step that would promote the vitality of the school and of the Francophone community and that would slow down assimilation, without requiring any additional francization resources. Lastly, when the applications for the admission of J.J.'s children, T. and N., were made, the children already knew French; their admission to École Allain St-Cyr would therefore not have imposed any additional burden for French-language instruction and would have had a "positive impact on the vitality of the school and the French-speaking community" (A.R., vol. VII, at p. 44; see also p. 45).

[ 101 ] The decisions rendered by the Minister following the 2019 judgment thus had a significant impact on the values enshrined in s. 23 of the Charter, since 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.

[ 102 ] It follows from the Doré requirements that those decisions were unreasonable. The Minister attached too much importance to her duty to make consistent decisions and, in doing so, gave disproportionate weight to the cost of the contemplated services in the exercise of her discretion. The Minister was clearly entitled to take costs into account in her decision. "Obviously, however, given the remedial nature of s. 23, pedagogical requirements will have more weight than cost" (Conseil scolaire francophone de la Colombie-Britannique, at para. 52; see also Mahe, at pp. 384-85; Rose-des-vents, at para. 30). The Minister has not shown that, in her decisions, 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.

[ 103 ] I pause here to make two important clarifications. Stating that the Minister did not proportionately balance the values underlying s. 23 of the Charter with the government's interests in this case does not amount to imposing an obligation on decision makers in her position to admit all children of non-rights holder parents. A refusal does not always mean that there was a disproportionate balancing of the relevant values and the government's interests. Nor does this amount to endorsing freedom of choice of the language of instruction, a model expressly rejected by the framers under s. 23 (Solski, at para. 8; Nguyen, at paras. 35-36). On the contrary, the freedom of choice model would imply the systematic admission of children of non-rights holder parents without a proportionate balancing of Charter values. In each case, the decision maker must consider the relevant values in light of the particular circumstances of the application in order to decide whether to admit children of non-rights holder parents.

D. It Is Neither Necessary nor Appropriate for This Court To Rule on the Allegation That the Right To Use French or the Right To Be Heard Was Infringed

[ 104 ] The appellants have raised a new ground of appeal in this Court. They argue that their right to use French in the courts as guaranteed by s. 19(1) of the Charter and s. 9(1) of the OLA includes the right to be understood directly in that language without the assistance of an interpreter. Because interpretation services were required for the hearing before the Court of Appeal for the Northwest Territories, the appellants take the view that their right under s. 19(1) of the Charter and s. 9(1) of the OLA was infringed.

[ 105 ] Section 19(1) of the Charter guarantees to every person that "[e]ither English or French may be used . . . in, or in any pleading in or process issuing from, any court established by Parliament". The wording of s. 9(1) of the OLA is almost identical. That provision states that "[e]ither English or French may be used by" any person "in, or in any pleading in or process issuing from, any court established by the Legislature".

[ 106 ] By way of relief, the appellants seek a number of declaratory conclusions. First, they would like this Court to declare [translation] "that the courts of the Territories are established by Parliament within the meaning of s. 19(1) of the Charter" (A.F., at para. 116). They also seek a declaration that s. 19(1) of the Charter and s. 9(1) of the OLA [translation] "protect the right to be understood directly by the court, and that these rights were infringed" (para. 116). Second, the appellants ask this Court to declare that s. 9(1) of the OLA is of no force or effect to the extent of its inconsistency with s. 19(1) of the Charter or, in the alternative, that s. 19(1) of the Charter and s. 9(1) of the OLA protect the right to be understood by the court and that this right was infringed in this case. Lastly, if the Court denies their other conclusions, the appellants seek at least a declaration that their right to be heard flowing from natural justice was infringed.

[ 107 ] To make the principal orders sought by the appellants, this Court has to resolve some complex constitutional issues. First, the Court must determine whether the Court of Appeal for the Northwest Territories is a court established by Parliament within the meaning of s. 19(1) of the Charter, an exercise that requires consideration of the constitutional status of the Northwest Territories. Second, ruling in favour of the appellants also requires overturning Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549, in which a majority of this Court, per Beetz J., found that the right to use either of the country's two official languages in any court referred to in s. 19 of the Charter does not include the right to be understood, as this right derives rather from the principles of natural justice and the right to a fair trial.

[ 108 ] In the case at bar, I am of the view that it would not be appropriate for this Court to decide the issue raised by the appellants. Judicial restraint generally requires that this Court not decide constitutional issues that are not necessary to the resolution of the parties' dispute (see R. v. McGregor, 2023 SCC 4, at para. 24, and the cases cited). This rule may be departed from in exceptional circumstances (para. 24, quoting Attorney General (Que.) v. Cumming, [1978] 2 S.C.R. 605, at p. 611). However, there are no such circumstances in this case.

[ 109 ] From the time it arose until the time it came before this Court, the parties' dispute related not to s. 19(1) of the Charter or s. 9(1) of the OLA but rather to the decisions rendered by the Minister concerning the applications for admission submitted by the appellant parents. The appellants did not even raise this issue in the course of the hearing before the Court of Appeal for the Northwest Territories, despite having been informed months ahead of time that the members of the panel were not all bilingual.

[ 110 ] In finding that the Minister's decisions are unreasonable and in setting aside the Court of Appeal's judgment and the orders it made, this Court is ruling in favour of the appellants and bringing an end to the dispute between the parties. It is therefore unnecessary to address the issue of how s. 19(1) of the Charter and s. 9(1) of the OLA should be interpreted in order to resolve the dispute. This issue has, for all practical purposes, become moot.

[ 111 ] The appellants contend that the new constitutional issue remains relevant even if this Court sets aside the Court of Appeal's judgment. In their opinion, the Court should address it anyway because language rights are substantive rights and not purely procedural ones. There is no doubt that language rights are not purely procedural. Indeed, the Court has recognized this, first in R. v. Beaulac, [1999] 1 S.C.R. 768 (at para. 28), and, more recently, in Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261 (at para. 20), and Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535 (at para. 38). With respect, however, such an argument reflects circular reasoning. The Court's reasons for considering an issue cannot be predicated on a presumed outcome. If the Court accepted this argument, it would have to address most constitutional issues that have no impact on the case.

[ 112 ] For these reasons, it is preferable to leave the interpretation of s. 19(1) of the Charter and s. 9(1) of the OLA, as well as any reconsideration of Société des Acadiens, for another day.

[ 113 ] It is also unnecessary to decide whether the quality of the interpretation services in the Court of Appeal resulted in an infringement of the appellants' right to be heard. Since I would set aside the Court of Appeal's judgment for other reasons, there is no need to consider this ground of appeal.

VI. Disposition

[ 114 ] For the reasons given above, I would allow the appeal and set aside the orders made by the Court of Appeal for the Northwest Territories, with costs throughout. Given that the children of the appellant parents have since been admitted to a school of the Francophone minority in the Northwest Territories or have moved outside that region, there is no need to restore the orders made by the Supreme Court of the Northwest Territories setting aside the Minister's decisions and referring the applications for admission back to her.

Appeal allowed with costs throughout.

Solicitors

Solicitors for the appellants: Juristes Power, Vancouver.

Solicitors for the respondent: Gowling WLG (Canada), Vancouver; Minister of Education, Culture and Employment of the Northwest Territories, Yellowknife.

Solicitor for the intervener the Attorney General of Canada: Department of Justice Canada — National Litigation Sector, Montréal.

Solicitors for the intervener the Attorney General of Quebec: Bernard, Roy (Justice-Québec), Montréal; Direction du droit constitutionnel et autochtone, Montréal.

Solicitor for the intervener the Attorney General of Manitoba: Department of Justice — Legal Services Branch, Constitutional Law, Winnipeg.

Solicitors for the intervener the Attorney General of the Yukon Territory: Gowling WLG (Canada), Vancouver.

Solicitor for the intervener the Canadian Francophonie Research Chair on Language Rights: University of Ottawa — Faculty of Law, Common Law, Ottawa.

Solicitor for the intervener the Commissioner of Official Languages of Canada: Office of the Commissioner of Official Languages of Canada — Legal Affairs Branch, Gatineau.

Solicitors for the intervener Fédération nationale des conseils scolaires francophones: Miller Thomson, Regina.

Solicitors for the intervener Commission nationale des parents francophones: Conway Baxter Wilson, Ottawa.

Solicitors for the intervener Société de l'Acadie du Nouveau-Brunswick: Pink Larkin, Fredericton.

Solicitor for the intervener the Yukon Francophone School Board: University of Ottawa — Faculty of Law, Common Law, Ottawa.