Yukon gov't, French school board make final appeals to Supreme Court

The Yukon government and the territory's francophone school board made their final appeals to the Supreme Court of Canada Wednesday, arguing a case that could answer who has the right to control admissions to French schools outside Quebec.

The case, which was first brought to court in 2009, argues that the Yukon's French school board should have the right to determine who its students are. Section 23 of the Charter of Rights of Freedoms guarantees Canadians the right to education in a minority language, whether English or French, but extends that right only to the children or grandchildren of those who were educated in French or whose first language is French.

The Supreme Court is likely to take at least six months to consider the case, and a decision is expected in the fall.

Enrolment dispute at heart of case

Max Faille, a lawyer for the Yukon government, says control must reside with the government.

"On the one hand, the school board was admitting a growing number of non-rights holders into the schools that were built specifically for francophone minorities," he says, "and at the same time, complaining that there isn't enough room."

Meanwhile, Roger Lepage, who represents the Yukon francophone school board, argues there is a need to allow some exceptions in enrolments for immigrants and families who have lost their language over time.

"Irrespective of what happens, the need does not change," he says.

"When you are a minority that has suffered 100 years of assimilation, you need extra tools to right the wrongs of the past." 

Interveners argue both sides

The Government of the Northwest Territories, one of a sizable list of interveners that also included the governments of Quebec, British Columbia, and Saskatchewan, pointed to a judgment from the N.W.T. court of appeal earlier this month that sided with the government on restricting admissions after the student population at one school nearly doubled when non-rights holders were allowed in.

"It is for the territories to determine what is their education budget and that really should not be hijacked by the minority school board, who decides to admit whoever they want and then turns around and asks the government to foot the bill," says Guy Regimbald, a lawyer representing the Northwest Territories.

However, Pascal Giguere, a lawyer representing the office of the Commissioner of Official Languages of Canada, argued in favour of the school board. 
 
"The minority needs to have new people because, it is a minority that is faced in the Yukon with a situation of assimilation," Giguere says.

Alleged bias also debated

The original case brought against the Yukon government was successful, and the territory's Supreme Court ordered the Yukon government to build a new French-language school in Whitehorse in 2011.

However, that decision was overturned by an appeal court, which found the judge in the initial case, Justice Vital Ouellette, was biased.

Ouellette sits on the board of the Franco-Albertan Foundation, a charitable group that distributes money to francophone communities.

This bias—real or perceived—and its impacts on the implications for other judges involved in their communities across Canada, was also argued.

"A reasonable person in Canada would expect that all judges, or anyone, would promote both official languages," says Giguere. "So being a member, or being involved in an organization who's goal is to promote one of the official languages shouldn't give rise to an apprehension of bias."

Giguere says if a judge was biased for being involved with a charity, it would mean all judges would not be able to be involved in any organization that serve members of minority groups.