Photo by Whitehorse Star
Photo by Whitehorse Star
A contentious, culturally sensitive legal battle over French-language education in the Yukon is headed to Canada's highest court to consider hearing.
The territory's francophone school board announced Monday it will submit a recent decision by the Yukon Court of Appeal for review by the Supreme Court of Canada.
The high court can accept or reject hearing the case.
The move sends a multiyear, multimillion-dollar dispute between the territorial government and the Commission scolaire francophone du Yukon (CSFY) to the highest rung of the nation's legal ladder.
"The CSFY is basically arguing for a full right to manage French education,” board president Ludovic Gouaillier told the Star today. "That's its mandate, and that's why it was created.”
The appeal court did not so much disagree as defer the decision.
Its unanimous ruling, handed down Feb. 11, in effect cancelled a previous judgment by the Yukon Supreme Court, which ruled in 2011 that the government violated minority language education rights under the Canadian Charter of Rights and Freedoms.
The lower court ruling stated that the government had "failed to accord the CSFY adequate management and control of French language education.”
The school board successfully argued that the government had breached its "fiduciary duty” by directing money earmarked for French-language education toward immersion programs — "second language instruction” — at English-speaking schools in Whitehorse rather than "first language” education at the exclusively French École Émilie-Tremblay.
The trial judge found in favour of the CSFY and ordered a number of remedies, including $2 million in financial damages to make up for the diverted funds.
More surprisingly, Justice Vital Oullette ordered a new French high school built — within two years — alongside École Émilie-Tremblay.
Oullette demanded the school have the capacity for 150 students from Grades 7 to 12, even though French students in the territory number far fewer than that, a government lawyer argued.
The government, however, has now successfully appealed the decision, arguing that the judge was biased — a rare claim — among other problems.
The appeal court ordered a retrial of the civil case.
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 at various times in 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.
"The judge's comportment during the trial gives rise to a reasonable apprehension of bias.
"While his former connections to francophone education in Alberta do not raise concerns about bias, his continuing role as a governor of a foundation do,” the judges concluded, referring to Oullette's position at the Fondation franco-albertaine.
Gouaillier said he was disappointed with the appeal court's focus on potential bias: "It's unfortunate; it has the effect of sidestepping those other important issues that don't get ruled upon and send us back to starting blocks.”
He had hoped the panel might address what he called the "essential and fundamental” points of the case.
These revolve around financial authority over things like professional development for teachers, programs for children under five years old and special needs students, staffing and custodial budgets and, crucially, the new high school.
The Court of Appeal did address whether the Charter grants the French school board — the Yukon's only school board — the right to admit children of "non-rights holder parents.”
Section 23 of the Charter stipulates that children born to a francophone parent or whose siblings were educated in French have the right to French language education in jurisdictions where English is the dominant tongue.
The appeal panel concluded children who don't fall under such conditions in the Yukon, like anglophones or new Canadians whose first language is neither English nor French, cannot attend Émilie-Tremblay
Gouiaillier said this is unfair to both the francophone community and the broader immigrant community.
"The significant factor of the growth of our population in Canada is through immigration.
"If the francophone community is not allowed to share in that growth ... that goes against the spirit of Section 23, which is to not only preserve, in the case of the Yukon, the French community and allow it to sustain itself, but to grow and repair historical damages that have been done to it,” Gouiaillier said.
He added that the appeal court "chose a very narrow reading of Section 23” because, taken literally, it would exclude "immigrants who don't speak English or French but who choose to integrate into the French community.”
Gouaillier hopes the Supreme Court of Canada will not only grant permission to appeal the recent ruling, but go beyond the issues examined by the Court of Appeal to rule on the case as a whole, rather than sending it back to square one with a new trial — a lengthy and expensive process.
"Only this will allow CSFY to continue its quest to provide the members of the Yukon francophone community with educational services of a quality which conforms with the Article 23 of the Canadian Charter of Rights and Freedoms,” Gouiaillier said in the release.
"Meanwhile, we are glad to be able to rely on a positive relationship and the real commitment for collaboration which exists today between CSFY and the Yukon government.
"Nevertheless, the Yukon Court of Appeal's decision to refer the issues in dispute back to the first instance does not constitute a viable option for CSFY. We must consider the human and financial resources already invested in this process as well as those that would be spent through a new trial.”
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