SUPREME COURT OF
CANADA
Citation: Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC
25
|
Date: 20150514
Docket: 35823
|
Between:
Yukon Francophone
School Board, Education Area #23
Appellant
and
Attorney General of
the Yukon Territory
Respondent
- and -
Attorney
General of Quebec, Attorney General of
British Columbia, Attorney General for Saskatchewan, Attorney General of the
Northwest Territories, Commissioner of Official Languages of Canada, Conseil
scolaire francophone de la Colombie-Britannique, Fédération des parents
francophones de Colombie-Britannique, Fédération des parents francophones de
l’Alberta, Fédération nationale des conseils scolaires francophones and
Fédération des communautés francophones et acadienne du Canada
Interveners
Coram: McLachlin C.J. and Abella, Rothstein,
Moldaver, Karakatsanis, Wagner and Gascon JJ.
Reasons
for Judgment:
(paras. 1 to 78)
|
Abella J. (McLachlin C.J.
and Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ. concurring)
|
Note: This document is subject to editorial revision
before its reproduction in final form in the Canada Supreme Court Reports.
yukon francophone school board #23 v. yukon (a.g.)
Yukon Francophone School Board,
Education Area #23 Appellant
v.
Attorney General of the Yukon Territory Respondent
and
Attorney General of Quebec,
Attorney General of British
Columbia,
Attorney General for Saskatchewan,
Attorney General of the
Northwest Territories,
Commissioner of Official
Languages of Canada,
Conseil scolaire francophone de la Colombie‑Britannique,
Fédération des parents francophones de Colombie‑Britannique,
Fédération des parents francophones de l’Alberta,
Fédération
nationale des conseils scolaires francophones and
Fédération
des communautés francophones
et
acadienne du Canada Interveners
Indexed as: Yukon Francophone
School Board, Education Area #23 v. Yukon
(Attorney General)
2015 SCC 25
File No.: 35823.
2015: January 21; 2015: May 14.
Present: McLachlin C.J.
and Abella, Rothstein, Moldaver, Karakatsanis, Wagner and Gascon JJ.
on appeal from the court of appeal for the yukon
Courts — Judges — Impartiality — Reasonable apprehension of bias —
Allegation that judge’s comments and interventions at trial as well as his
community involvement before and after appointment as a judge gave rise to
reasonable apprehension of bias — Whether judge’s conduct and community
involvement raised reasonable apprehension of bias.
Constitutional
law — Charter of rights — Whether school board can unilaterally decide to admit
students who are not covered by s. 23 of the Canadian Charter of Rights
and Freedoms.
The Yukon Francophone School
Board is the first and only school board in the Yukon. It has responsibility
for one school, École Émilie‑Tremblay, a French‑language school founded in
1984. In 2009, the Board sued the Yukon government for what it claimed were
deficiencies in the provision of minority language education. The trial judge
ruled in the Board’s favour on most issues.
The Court of Appeal
concluded that there was a reasonable apprehension of bias on the part of the
trial judge based on a number of incidents during the trial as well as the
trial judge’s involvement as a governor of a philanthropic francophone
community organization in Alberta. Accordingly, it ordered a new trial except
on three issues, only two of which were appealed to this Court: the trial
judge’s conclusion that, under s. 23 of the Charter, the Board had the unilateral right to set admission
criteria so as to include students who are not covered by s. 23; and the
trial judge’s decision that the Yukon is required to communicate with the Board
in French.
Held: The appeal from the Court of Appeal’s conclusion that there
was a reasonable apprehension of bias requiring a new trial is dismissed, but
the Board’s claims pursuant to the Languages
Act should be joined with the other issues remitted by the Court of Appeal
for determination at a new trial.
The test for a reasonable
apprehension of bias is what would a reasonable, informed person think. The
objective is to protect public confidence in the legal system by ensuring not
only the reality, but the appearance of a fair adjudicative process. Impartiality
and the absence of bias have developed as both legal and ethical requirements.
Judges are required — and expected — to approach every case with impartiality
and an open mind. Because there is a presumption of judicial impartiality, the
test for a reasonable apprehension of bias requires a real likelihood or
probability of bias. Judicial impartiality and neutrality do not mean that a
judge must have no prior conceptions, opinions or sensibilities. Rather, they
require that the judge’s identity and experiences not close his or her mind to
the evidence and issues. The reasonable apprehension of bias test recognizes
that while judges must strive for impartiality, they are not required to
abandon who they are or what they know. A judge’s identity and experiences are
an important part of who he or she is, and neither neutrality nor impartiality
is inherently compromised by them. Judges should be encouraged to experience,
learn and understand “life” — their own and those whose lives reflect different
realities. The ability to be open‑minded is enhanced by such knowledge and
understanding. Impartiality thus demands not that a judge discount or disregard
his or her life experiences or identity, but that he or she approach each case
with an open mind, free from inappropriate and undue assumptions.
In the present case, the
threshold for a finding of a reasonable apprehension of bias has been met. In
addition to several disparaging and disrespectful remarks made by the trial
judge and directed at counsel for the Yukon, several incidents occurred which,
when viewed in the circumstances of the entire trial, lead inexorably to this
conclusion.
The first was the trial
judge’s conduct during an incident where counsel for the Yukon attempted to cross‑examine
a witness based on confidential information contained in student files. After
hearing some argument on the confidentiality issue, the trial judge told
counsel he would entertain additional arguments on the matter the following
day. However, he started the next day’s proceedings with a ruling unfavourable
to the Yukon and without giving the parties an opportunity to present further
argument. While this by itself is unwise, the trial judge’s refusal to hear the
Yukon’s arguments after his ruling, and his reaction to counsel, are more
disturbing. He both characterized the Yukon’s behaviour as reprehensible and
accused counsel for the Yukon of playing games. Viewed in the context of the
entire record, the trial judge’s conduct was troubling and problematic.
The trial judge’s treatment
of the Yukon’s request to submit affidavit evidence from a witness who had
suffered a stroke was also improper. The judge accused counsel for the Yukon of
trying to delay the trial, criticized him for waiting half‑way through the
trial to make the application, suggested that that the incident amounted to bad
faith on the part of the government, and warned counsel for the Yukon that he
could be ordered to pay costs personally if he brought the application. There
was no basis for the accusations and criticism levelled at counsel and, viewed
in the context of the rest of the trial, this incident provides further support
for a finding of a reasonable apprehension of bias.
Moreover, the trial judge’s
refusal to allow the Yukon to file a reply on costs is highly problematic in
the overall context of the trial. After the release of his reasons on the
merits, the trial judge required each party to file their costs submissions on
the same day. To the Yukon’s surprise, the Board sought not only solicitor‑client
costs, but also punitive damages and solicitor‑client costs retroactive to
2002. The trial judge’s refusal to allow the Yukon to file a reply factum is
questionable, particularly in light of the fact that the Yukon could not have
known the quantum of costs sought by the Board at the time it filed its factum.
The judge’s refusal is made all the more worrisome by his decision to award a
lump‑sum payment to the Board, in addition to retroactive costs.
All of these incidents, taken
together and viewed in their context, would lead a reasonable and informed
person to see the trial judge’s conduct as giving rise to a reasonable
apprehension of bias.
However, the Court of Appeal
erred when it concluded that the trial judge’s current service as a governor of
the Fondation franco‑albertaine substantially contributed to a reasonable
apprehension of bias. Membership in an association affiliated with the
interests of a particular race, nationality, religion, or language is not,
without more, a basis for concluding that a perception of bias can reasonably
be said to arise. 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.
In the present case, it is
difficult to see how, based on the evidence, one could conclude that the
Fondation franco‑albertaine’s vision could be said to “clearly align” with
certain positions taken by Board in this case or that the trial judge’s
involvement in the organization foreclosed his ability to approach this case
with an open mind. Standing alone, vague statements about the organization’s
mission and vision do not displace the presumption of impartiality. Although
consideration of the trial judge’s current role as governor of the Fondation franco‑albertaine
was a valid part of the contextual bias inquiry in this case, his involvement
with an organization whose functions are largely undefined on the evidence
cannot be said to give rise to a reasonable apprehension of bias.
The Court of Appeal’s
conclusion that the Board could not unilaterally decide whom to admit to its
school should not be disturbed. There is no doubt that a province or territory
can delegate the function of setting admission criteria for children of non‑rights
holders to a school board. This delegation can include granting a minority
language school board wide discretion to admit the children of non‑rights
holders. In this case, however, the Yukon has not delegated the function of
setting admission criteria for the 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 territorial regulation applicable to French‑language instruction.
This,
however, does not preclude the Board from claiming that the Yukon has
insufficiently ensured compliance with s. 23, and nothing stops the Board
from arguing that the Yukon’s approach to admissions prevents the realization
of s. 23’s purpose.
Finally,
it is unclear why the Court of Appeal decided that this case was not a suitable
vehicle for determination of rights under the Yukon’s Languages Act. The Board’s claims raise significant factual
issues that may well lead to a finding that parts of the claims were justified
and should be determined at the new trial with the benefit of a full
evidentiary record.
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