Top court rules Yukon’s French school board cannot control admissions

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In a single decision dealing with French-language schooling in Yukon, the Supreme Court of Canada on Thursday averted a linguistic crisis in Quebec and at the same time clarified whether judges can belong to community organizations.

Yukon's only French school board cannot unilaterally decide who it wants to admit into the territory's sole French school, the court ruled.

The unanimous decision, penned by Madam Justice Rosalie Abella, also elaborated on what could constitute an appearance of bias by a judge.

The ruling said the behaviour of the trial judge, Mr. Justice Vital Ouellette of the Yukon Supreme Court, led to reasonable concerns that he was biased. But the top court said it had no issue with Justice Ouellette's involvement with a Franco-Albertan association.

"Not everything a judge does or joins predetermines how he or she will judge a case," Justice Abella wrote. "Canada has devoted a great deal of effort to creating a more diverse bench. That very diversity should not operate as a presumption that a judge's identity closes the judicial mind."

The appellant was the Yukon Francophone School Board, which operates École Émilie-Tremblay in Whitehorse. The board sought the right to admit not just students who had a constitutional right to French-language education but also children of English-speaking "francophile" parents.

The Quebec government feared that a decision favouring the board and broadening access to minority-language education would open the door to francophones and immigrants in Quebec gaining access to English schools.

However, in a decision released Thursday, the highest court turned down the school board's bid and upheld a ruling by the Court of Appeal of Yukon ordering a new trial in the matter.

In interviews afterward, both the lawyer for the school board, Roger Lepage, and Yukon Education Minister Doug Graham expressed a willingness to find ways to reach an out-of-court settlement.

The six-year legal battle started with the board complaining that its school is losing students to the English section because it is underfunded and overcrowded.

Under Yukon's French Language Instruction Regulation, only children who have the constitutional right to French schools can be admitted to École Émilie-Tremblay. In practice, the school had a more relaxed policy. The 227 students at the school included 25 non-rights holders, 16 of them anglophones.

Section 23 of the Charter of Rights and Freedoms provides a right to publicly funded education for anglophone and francophone minorities, where numbers warrant.

The right is however limited to people whose mother tongue is of their province's linguistic minority, or who received their elementary-school instruction in that language.

The government of Quebec intervened in the case, arguing that the current admission rules cannot be tinkered with unless there is a constitutional amendment.

Quebec's position was "unfortunate," Mr. Lepage said, lamenting the position the province took at the expense of francophones in the rest of Canada.

In her ruling, Justice Abella noted that some provinces, such as Ontario and Manitoba, give their school boards a wider discretion in granting access to French education.

"In this case, however, the Yukon has not delegated the function of setting admission criteria for children of non-rights holders to the Board. In the absence of any such delegation, there is no authority for the Board to unilaterally set admission criteria which are different from what is set out in the Regulation," Justice Abella wrote.

The ruling said Justice Ouellette's conduct was "troubling" because he made disparaging remarks and didn't give the government's lawyer the proper opportunity to present arguments. However, the top court had no problems with Justice Ouellette's role as a governor of the Fondation franco-albertaine.

The Fondation was not involved in the litigation and there is no evidence its views mirror those of the Yukon school, Justice Abella said. "Judges should not be required to immunize themselves from participation in community service where there is little likelihood of potential conflicts of interest."