SCC Uses Charter Values to Essentially Expand a Defined Class of Rights Holders

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Wednesday, January 31, 2024
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This blog post is part of a series on “SCC Decisions and more” written by CIAJ’s collaborator James Hendry. Read all his posts here.

SCC uses Charter values to essentially expand a defined class of rights holders 

I want to consider the novel use of Charter values underlying s. 23 of the Charter to essentially expand the category of rights holders expressly entitled to French language education by the Supreme Court in Commission scolaire francophone des Territoires du Nord-Ouest v. Northwest Territories (Education, Culture and Employment). I applaud the expansion of French language education in our officially bilingual country; but I want to focus on the use of Charter values. Charter values are interpretive principles that align with the underlying values protected by the Charter. We’ll see that their use is often contested. But we’ll also see in this case how a Justice of the SCC—one of the earlier critics—resolved her doubts and consolidated the interpretative role of Charter values by unanimous decision. 

A group of parents challenged decisions of the Minister to refuse French schooling to their children. The group had a strong connection to the Francophone language and community in the NWT and were supported by the regional Francophone consulting body. However, the claimant parents did not belong to the category of rights holders specified in s. 23. The Minister’s policy allowed exceptions for some non-rights holders’ children to receive a French language education. But the Minister decided not to exercise discretion to include the claimants. Côté J balanced the Charter values engaged by official language instruction with the weight given by the Minister to policy consistency and the cost of extra students in the case of the claimants. Côté J held the Charter values had greater weight making the decisions unreasonable.

Charter values 

I want to focus on the way the Court applied the Doré proportionality framework to extend the Charter guarantees in s. 23 by using its underlying Charter values. The result was to provide French language education to the children of individuals who, because of the specific categories of rights holders specified in the text, could not assert s. 23 rights directly.  

The concept of Charter values has an interesting history. The Court has long recognized their role as values that should be applied to shape the common law to ensure it reflects the changing values of our society. But to avoid turning every conflict between a statute and the Charter into one of interpreting the statute to be consistent with the Charter, Charter values were to apply in statutory interpretation only to resolve a genuine ambiguity. Côté J in Commission scolaire invoked three cases involving Charter values in judicial review. The first was Doré. Another was a conflict between a Catholic school and a government seeking to make education secular in Loyola. The other was a refusal of the BC Law Society to accredit an evangelical law school that required students to renounce all “non-Christian” sexual activity in Trinity Western 

Charter values inspire the same criticism of judicial hermeneutics as Charter rights. Interestingly, Côté J writing with Brown J joined this chorus of objections concerning the use of “amorphous”, “unsourced” and “undefined” Charter values in their dissent in Trinity Western. They particularly criticized the majority’s “vague” notion of the Charter value of equality. But I think that the majority’s application of the Charter value of equality in that case to allow the Law Society to consider harms to the LGBTQ community and its knock-on effects on the public aligns with the purpose of s. 15 to protect vulnerable minorities from exacerbation of their disadvantage. Doesn’t this show proper coherence in the law?   

The Charter values analysis in Commission scolaire shows a clear acceptance of applying those values in the Doré framework. Côté J held that Charter values underpin and are inseparable from Charter rights and give them meaning. She drew on the Court’s delineation of the purposes of s. 23 to prevent the erosion of official language communities, redress past injustices, and promote their development. She held that the Charter values of preserving and developing minority official language communities were always relevant to decisions made about admissions to minority language schools. And in this case, the inclusion of the claimant parents furthered these values. Thus, the Minister’s failure to consider give these values proportionate weight made the decisions unreasonable.  

The expansion of the category of rights holders in Commission scolaire by Charter values is not new. The expansion of categories of rights holders has always been an outcome of interpreting the scope of Charter rights broadly. For example, the Court held s. 2(a) rights holders included not only individuals whose claim is based on the doctrine of an established religion proved by experts, but also any claimants who sincerely believe their beliefs and practices have a nexus with the divine as in Amselem (para. 46). But we will see how courts discipline themselves in the application of Charter values to other defined rights holder groups such as citizens and permanent residents in s. 6 and vulnerable groups defined by analogous grounds in s. 15. 


Commission scolaire confirms the role of Charter values in judicial review under the Doré analysis. Côté J seems to have cabined the use of Charter values to expand a defined group of rights holders to the language right in s. 23 by sticking close to its purposes. Though she makes it clear that the reasoning is contextual, it will be interesting to see whether Charter values will be used to broaden other categories of Charter rights holders.   

***Not for use as legal advice

About the author

James Hendry

James Hendry

James Hendry was called to the Ontario Bar in 1981. He was in private practice until 1984 when he joined the Canadian Human Rights Commission as counsel providing legal advice and litigation services, appearing at all levels of court, including the Supreme Court of Canada. In 1989, he was recruited by the Department of Justice. He was General Counsel in the Human Rights Law Section until 2011, specializing in civil Charter social policy advice and equality rights, and interpreting and designing human rights legislation. He was Research Director with the Canadian Human Rights Act Review Panel and a Visiting Scholar at Harvard Law School on a Canada-U.S. Fulbright Scholarship. He publishes extensively on Canadian and comparative constitutional issues and has lectured in Canada, Spain, South Africa, the United States, and Hong Kong. He taught Constitutional Law and Charter at the University of Ottawa, Faculty of Law and currently co-teaches a course on “Writing for Social Justice.” He designed and presented lecture series on the Charter, International Human Rights and Aboriginal Rights at Carleton University. He was the Editor in Chief of the Federated Press Charter and Human Rights Litigation journal from 1993 to 2016. He was founding Editor in Chief of the PKI Global Justice Journal, now published by Queen’s Law (2017 to 2022).