Reassess 'unreasonable' denial of 6 students to French school, orders N.W.T. judge

The Northwest Territories Supreme Court has ruled against a decision by former education minister, now Premier Caroline Cochrane, to refuse admitting six children to the territory's francophone schools in Yellowknife and Hay River last summer. 

Justice Paul Rouleau ordered that the decision be reassessed by current Education Minister R.J. Simpson before the start of the new school year.  

In his ruling, Rouleau concludes that the minister's refusal was based on "illogical considerations," on an "irrational analysis," and on grounds that do not demonstrate proper respect for Section 23 of the Canadian Charter of Rights and Freedoms.

Last summer, three days before the school year began, then-minister Cochrane rejected the applications of these six children in five non-rights-holder families to attend francophone schools, four in Yellowknife and one in Hay River. A "rights-holder" is somebody who has access to the constitutionally-protected right to minority-language education under Section 23 of the charter.

Previous court rulings in the country have also stated that Section 23 must promote the vitality of the community and prevent its cultural and linguistic erosion.

In her decision, Cochrane cited an increase in the schools' admissions and the demographic growth of the francophone community. She had said that both the schools and the community didn't need the addition of these non-rights-holders to ensure their vitality. 

I want to hope that next time there is a disagreement, we will take the time to discuss instead of being met with a closed door.- Simon Cloutier, French school board chair

The minister admitted that the students, the schools and the French community would benefit from enrolling the six students, but concluded that it wasn't enough to outweigh the extra costs.

Justice Rouleau concludes that this analysis of enrolment rates by Cochrane and her department was based on erroneous and arbitrary statistics. 

He added that the department did not take into account the high rates of assimilation in the francophone community and that it overestimated the extra costs associated with enrolment in French schools. 

"In summary, I find the minister's decisions to be unreasonable," said Rouleau.

The judgment is similar to the first one Rouleau made last year for one of these five cases.

New enrolment regulations

The context has changed significantly since last year's decision. 

Until June 30, the eligibility of non-rights-holder children in French-language schools in the territory was governed by a set of criteria established by a ministerial directive issued in 2016. 

The six students from five families in question do not meet one of the three criteria. That's why their eligibility was ultimately laid in the hands of the education minister, who has the final discretion. 

Current Education Minister Simpson repealed this directive this summer and started working on a new set of regulations under the N.W.T. Education Act to ensure better clarity regarding enrolment. 

The department has yet to announce what these new regulations will look like, but the minister has already stated that he intends to add new criteria for French-speaking, non-rights holders.

In a statement to the CBC on Tuesday afternoon, Simpson said he "will ensure decisions made are clearer and more predictable and provide clarity around enrolment" in French schools.

"These regulations will come into effect at the start of the 2020-2021 school year under the N.W.T. Education Act," he said.

"I am committed to supporting the protection of the French language through the provision of French First Language education in the N.W.T. and to ensuring that we continue to review our education system allowing every resident to receive equitable opportunity to education."

In an interview on July 3, the minister stated that these new binding regulations and criteria would get rid of the ministerial discretion that's currently at play. 

The news release announcing that change back in June specified that "the applications that are currently under judicial review continue to be subject to the directive." 

So it's understood that the five cases will need to be reviewed under the old directive, and not the upcoming regulations, according to the French school board.

French school board 'delighted'

This judgment comes at an opportune time, according to Commission scolaire francophone Territoires du Nord-Ouest (CSFTNO) chair Simon Cloutier. 

Cloutier said he was "delighted" with the judgment that builds on last year's ruling.

"This decision confirms that the minister must bring about changes to the department's overly restrictive approach to admissions," said Cloutier. 

He also hopes that this favourable judgment, the second in two years, will lead to better communication between the Education Department and CSFTNO. 

"I want to hope that next time there is a disagreement, we will take the time to discuss instead of being met with a closed door and be forced to resolve things in front of the courts," he said.  

The premier's office said she is not available to comment until later this week.