On December 8, 2023, the Supreme Court of Canada (SCC) released a decision mandating that administrative decision-makers account for Charter values (as well as or instead of Charter rights) in their rulings whether bidden or unbidden by the parties before them.

S. 23 of the Canadian Charter of Rights and Freedoms, the minority language educational rights provision, guarantees certain defined parents the right to have their children receive instruction in French or English as applicable. Parents who were not entitled to the right under s. 23 requested that their children be permitted to receive French instruction. The Minister of Education, Culture and Employment of the Northwest Territories denied the request of the non-rights holding parents, presumably on the basis that they were non-rights holders – having no right to such under the Charter. The Supreme Court of the Northwest Territories allowed judicial review of the Minister’s decision and remitted the matter back for the Minister to consider a balancing of the protections under the Charter. The Court of Appeal for the Northwest Territories restored the Ministerial decisions. In Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment), 2023 SCC 31, Justice Côté, writing for a unanimous bench, allowed the appeal and referred the matter back to the Minister for reconsideration.

The SCC found that the Minister failed to address and proportionately balance the Charter values underlying the Charter right set out in s. 23 with the government’s interests (paras. 92 to 103). The ruling sets out a number of principles applicable to the exercise of ministerial or administrators’ discretion where Charter values come into play including determining the existence of and content of such “values”, relevance and proportionality.

Relevance: the decision maker must determine whether Charter values are relevant to the exercise of discretion. The factors compassed in this relevance analysis include the nature of the governing statutory scheme, whether the values have been raised by the parties, or the link between the values and the matter under consideration. In any event the Court held that “it will often be evident that a value must be considered” given such factors (para. 66).

Proportionality: does the decision-maker’s reasoning show whether, “given the relevant factual and legal constraints, the decision reflects a proportionate balancing of Charter rights or the values underlying them” (para. 73)?

In reliance on a prior ruling on the interpretation of the level of services available to s. 23 rights-holders in Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2020 SCC 13 (CanLII), [2020] 1 SCR 678, the SCC in the instant case found that the Charter values underlying the (in the matter admittedly unavailable) Charter right included the preservation and development of minority language communities, a right which is “preventive, remedial and unifying in nature”, “intended to redress past injustices and promote the development of these communities” (see paras. 79, 80).

The decision has engendered commentary either critical or laudatory. Critics have noticed difficulties in application and principle.

The first instance decision-maker is now constrained to both fathom and apply Charter values in making discretionary decisions. The values may not be as evident as the Court found. As the Court of Appeal for Ontario held in 2019: “Charter rights are constrained by their text and purposes. Values are potentially boundless, with few indications of their parameters”[1].

Indeed, in a dissent co-authored with Justice Brown in Law Society of British Columbia v. Trinity Western University, [2018] 2 SCR 293, Justice Côté wrote: “Charter “values”, … are amorphous and, just as importantly, undefined. Lacking the doctrinal structure which courts have carefully crafted over the past 35 years to give substantive meaning to Charter rights (including the right to equality) and to guide their application, Charter values like “equality”, “justice”, and “dignity” become mere rhetorical devices by which courts can give priority to particular moral judgments, under the guise of undefined “values”, over other values and over Charter rights themselves” (para. 309). In the decision considered here Justice Côté did not consider her previous statement about the fraught nature of concepts such as Charter values.

Additionally, the rights set out meticulously in s. 23 are of a different species than the rights set out in ss. 1 to 15 of the Charter. They read as a detailed code rather than the statements of general and generally pre-existing rights under ss. 1 to 15, such as the rights to the presumption of innocence or freedom of expression. And unlike ss. 1 to 15 rights, s. 23 rights are immune to declarations under the notwithstanding clause.

S. 23 was the result of negotiations leading to an agreement between premiers in 1978 at the St. Andrews, New Brunswick conference of 1978, in part to permit Canadian citizens moving from one province to another to retain the right to have their children educated in their maternal language. The agreement was later incorporated in the Charter (see Hogg, Peter W., Canada Act 1982 Annotated, Toronto: Carswell 1982 at p. 62). This context was discussed in the analysis of s. 23 Charter rights in Conseil scolaire francophone de la Colombie‑Britannique, although quaere whether the Court’s analysis of the underlying values in that case: (a) set out the only available understanding of the section; or (b) practically assisted in the application of concepts in s. 23 such as “where numbers warrant”. The context of s. 23 lies in the difficult and divisive history of French and English language rights in Canada. It was the result of a political compromise and was not a foregone conclusion. While this may not mean that one cannot find values in the compromise, it is not so self-evident that the values found by the SCC as underlying s. 23 clearly do so given the history.

That history suggests that s.23’s purpose was, to use the wording of the decision, to redress past injustices and to promote the development of specified communities. The injustices to minority language communities which were the concern leading to s. 23 involved francophones and anglophones. No one was thinking of Ukrainian, Irish, Finnish, Chinese, Italian or any other such communities. Could the decision be read to embody the value of language protection for all such communities which have suffered injustice and whose development merits promotion? The search for Charter “values” absent Charter rights will prove challenging.

In apparent departure from the customary role of reviewing courts, the SCC decision makes administrative determinations as to Charter values, or the failure to make such determinations, subject to curial review whether or not the values have been put in play by litigants. Further, a Court may now review the proportionality of the balancing performed by the administrative decision-maker, such that the courts must re-weigh such balancing act. Both foregoing directions move away from long-standing contrary praxis, particularly under the reasonableness standard enunciated in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

In the final analysis we must await further elucidation of the ruling. In the interim administrative tribunals, government actors and litigants must step lively.