Nunavut Tunngavik Incoporated et al v The Commissioner of Nunavut et al, 2023 NUCJ 5
[25] The Respondents have invoked Charter section 15 (1) saying the 2019 Amendments discriminate against Inuit; and I note that Charter section 15(1) lists race and ethnic origin as two of the explicitly prohibited forms of discrimination. The Applicants, on the other hand, assert that the claim pertains to language rights. In whichever manner one characterises the claim, I must examine the potential ambit of Charter section 15 (1) in relation to Inuit language education in Nunavut. Before I do so, it is significant to my analysis that the Applicants acknowledge:
… it is notable that the Supreme Court of Canada has not definitively ruled on the potential application of s. 15 to language, and some courts and commentators have posited that the proverbial “door” may remain open to such a claim.
i. Gosselin (Tutor of) v Quebec (Attorney General)
[26] In Gosselin, the Supreme Court of Canada spoke to the possibility of language being an analogous ground under section 15 (1):
Section 15 (1) of the Canadian Charter does not expressly enumerate language as a prohibited ground of discrimination. However, we agree with the observations of the Saskatchewan Court of Appeal in Reference re Use of French in Criminal Proceedings in Saskatchewan (1987), 1987 CanLII 204 (SK CA), 36 C.C.C. (3d) 353, at p. 373, that:
Nor, in our view, does the presence in the Charter of the language provisions of ss. 16 to 20, or the deletion from an earlier draft of s. 15(1) of the word “language”, have the effect necessarily of excluding from the reach of s. 15 the form of distinction at issue in this case.
[27] In my view, the Supreme Court of Canada has left the door open, arguably, for the Respondents to assert that the provision of Inuit language education from kindergarten to grade 12 is an analogous ground protected against discrimination by Charter section 15 (1).
[28] Consequently, I now look to the Ontario test for guidance.
ii. Do the 2019 Amendments, either on their face or in its impact, create a distinction based on enumerated or analogous grounds?
[29] The 2019 Amendments limit the provision of bilingual education to one Inuktut course and delays its full implementation for 20 years. Inuit children form the vast majority of the public school population in Nunavut.[33] Taken at face value, the 2019 Amendments applies explicitly to, and will have a direct impact upon, Inuit children and their ability to study in their mother tongue or the language of their immediate ancestors.
iii. Do the 2019 Amendments impose a burden or deny a benefit in a way that reinforces, perpetuates, or exacerbates disadvantage, including historical disadvantage?
[30] For the purposes of this application, I must accept as true the Respondents’ factual assertion that the unavailability of Inuktitut instruction from grades four to twelve:
… will reinforce, perpetuate, and exacerbate the decline in the Inuit Language [sic], which will in turn cause a host of serious, discriminatory impacts on the Plaintiffs and Inuit students more broadly. Those discriminatory impacts include: (1) causing Inuit students’ loss of the Inuit Language [sic] and accordingly, connection to Inuit culture, and (2) reducing Inuit students’ ability to learn effectively, thereby limiting their educational attainment and employment potential, which leads to associated impacts such as loss of self-esteem and confidence.[34]
[31] Clearly, it is arguable that the 2019 Amendments may impose a burden upon, or deny benefits to, Inuit. They do so on two levels. First, the 2019 Amendments may contribute to Inuit youth losing their language and their connection to Inuit culture. Just as importantly, the effect of the 2019 Amendments may be to perpetuate the undeniable historical disadvantages experienced by Inuit from colonialism.
