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News archive for February 25, 2014

Court ruling perplexes school board’s lawyer

The head lawyer for the territory’s francophone school board says he’s baffled by a recent Yukon Court of Appeal decision he feels has hurt the cause of French-language education.

By Christopher Reynolds on February 25, 2014 at 3:50 pm

The head lawyer for the territory’s francophone school board says he’s baffled by a recent Yukon Court of Appeal decision he feels has hurt the cause of French-language education.

Roger Lepage questioned how the territory’s highest court found a strong possibility of bias in the trial judge who presided over a legal battle between the Commission scolaire francophone du Yukon and the territorial government in 2010.

Though the Court of Appeal ordered a new trial following years of expensive legal wrangling — the government has already spent $2.6 million on the case, according to the Department of Education — the board announced last week it was submitting the appeal ruling to the Supreme Court of Canada.

“I’ve been litigating for 35 years, and I thought that there was absolutely nothing the (trial) judge did that was out of line,” Lepage said in an interview last week.

“When I read this Yukon Court of Appeal decision, it makes it sound like the judge was being inappropriate throughout the length of this nine-week trial.”

Justice Vital Oullette, a former francophone school board trustee and local French association executive in Alberta, gave the appearance of bias when he grimaced and laughed at the government lawyer several times during the proceedings, the appeal decision reads.

“Quite apart from issues of facial expressions or laughter, however, we are of the view that the judge treated counsel for the government with a lack of respect on many occasions during the trial,” the three-judge panel stated.

Lepage disagrees.

“It’s hard for me to conclude that from the transcript,” he said.

“Even if those three judges were right in saying that there were three or four instances where the judge was less than complimentary to the lawyer, it’s hard to justify how that would be the basis for a new trial.”

Lepage also criticized the notion that Oullette’s voluntary position with the Fondation franco-albertaine, an Edmonton-based charitable organization, should have excluded him from the case.

“What they’re saying ... is that even if the (trial) judge had made no grimace, had not chided the lawyer for his former dealings, that alone would require a new trial.

“The board of governors has no decision-making power ... and it’s a philanthropic group,” Lepage said, citing a gap between the appeal judges’ ruling and relevant precedents.

“Boy, that’s pretty wide. That’s a lot wider than any established cases.”

He scoffed at the Yukon government lawyer’s reliance on a case from the United Kingdom’s House of Lords from 2000 that concerned former Chilean dictator Augusto Pinochet.

In that case, the U.K.’s then-highest court was called upon to set aside one of its own decisions — which denied Pinochet immunity from prosecution despite his status as a former head of state — because one of the judges had ties to a charitable organization.

In that case, however, one of the nine judges was on the board of directors for Amnesty International, which had directly applied for intervenor status in the proceedings.

“He was putting himself in a role of being both a judge and a party,” Lepage said.

“It’s got nothing to do with the case of the Yukon francophone school board v. the Yukon government.

“(The Fondation franco-albertaine) is not a Section 23 body. It’s not in the Yukon. It’s not a Pinochet situation.”

The appeal court recognized those facts. “Nonetheless, we find it does provide some guidance,” the panel wrote.

Section 23 of the Canadian Charter of Rights and Freedoms guarantees minority language education rights to French-speaking minorities outside Quebec.

Lepage acknowledged that judges cannot be involved in political organizations nor activities after being appointed to the bench.

“But it was never stated that a judge would have to resign from all boards of directors or associations that have a philanthropic or a charitable mandate, because quite often judges are called upon to be figureheads in certain bodies for fund-raising.

“It’s like having a pop star. It’s to give credibility to an organization.”

Lepage conceded that “the bar may be going up — and if that’s the case, the Supreme Court of Canada should rule on it.”

He thinks such a decision would be “going too far ... but maybe I’m out of touch with what the Canadian public is looking for.”

The Court of Appeal decision suggests that while the law generally assumes a judge is able to overcome any biases evident in past affiliations, it is more reluctant to dismiss the effect of ongoing ties.

“The reason for this is straightforward: a person who is involved in the ongoing management or control of an organization has ongoing duties to uphold the organization’s principles and to advance its philosophies,” the appeal panel wrote.

“Those duties can potentially conflict with the duty to approach cases with an open mind.

“Unfortunately, we are therefore of the view that both the judge’s association with the FFA and his conduct at the trial raise a reasonable apprehension of bias.”

Lepage also criticized the appeal court’s decision to limit the board’s control over admission — particularly admission into the French-speaking École Émilie-Tremblay of students not automatically granted that right by the Charter.

The original 2010 trial looked at whether the territorial government violated minority language education rights under the Charter.

The Yukon Supreme Court ruling stated that the government had “failed to accord the CSFY adequate management and control of French language education.”

More suprisingly, Oullette ordered a new French high school built – within two years – alongside École Émilie-Tremblay.

Last month, the appeal court ordered a retrial of the civil case.

CommentsAdd a comment

June Jackson

Feb 25, 2014 at 6:48 pm

Mr. LePage didn’t think the trial judge was biased?  (Were you at the trial Mr. LaPage?)  And, I would agree, that Mr. LePage is out of touch with what the Canadian public is looking for. 

I’m a public.. what am I looking for? Well, I would like unity and not even more separation. 

All this litigation is not free, the only winners are the lawyers..someone is walking away with nearly 3 million dollars just on this action alone. I would like to not pay anymore..not for litigation, special schools, special teachers, special transit, special books, tools, special anything..I’ve had enough.

north_of_60

Feb 25, 2014 at 8:01 pm

What else would we expect a lawyer to say?

The longer it can drag out the more that money for educating kids will be used to make lawyers richer.  Such shameless arrogance.

Interestingly, Louis XIV forbade lawyers to practice in New France, of course the British overlords changed that.

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