Once a law is passed, the surrounding debate and conflict may be gradually forgotten, and people may come to regard the law as being more than the outcome of a political disagreement. In some cases, however, the conflicts continue even after a law has been created. Legal issues arise when someone feels that some current policy or practice is undesirable or unfair, and challenges that policy or practice. There are two ways such a challenge can be made ‒ a political effort can be made to have the law changed, or to have a new and different law enacted or a judicial challenge can be made whereby the courts are asked to rule that a policy or practice does not meet the requirements of existing law.

Chapter 2 discussed the controversy in the nineteenth century over the role of local school boards. As a result of this controversy, several different pieces of legislation were enacted to try to give legal shape to a view of how education ought to be governed. A more recent example concerns legislative provision for the education of students with special needs. Many people worked very hard for many years to have provincial legislatures provide legislation that would require school districts to pay more attention to the needs of students with exceptionalities. Provinces now have legislative provisions requiring schools to provide education for all students. Political efforts to change laws are not always effective, but they can be under the right conditions.

A judicial challenge may assume that existing laws are adequate but are not being understood or applied correctly, or it may question the very legitimacy of a law. The courts will then be asked to require that the law be enforced in a different way, or even to indicate that the law is inappropriate and must be modified or eliminated. Such court challenges have played a major role in education historically in regard to issues of language and religion, such as the rights of linguistic minorities discussed in Chapter 2. They are becoming increasingly important in other areas, partly due to the existence of the Charter of Rights and Freedoms. For example, a number of recent court cases in Canada have helped to define the educational rights of students with exceptional needs, and their parents. Many court cases over the years have also dealt with such matters as the appropriate grounds for dismissal of teachers, and with school discipline practices.

These two routes to changing law parallel the two aspects of the legal system. Laws are created by the Parliament of Canada or by provincial legislatures. The creation of any law is thus a political process that is carried out by elected officials. However, once enacted, the responsibility to enforce and interpret laws belongs to the courts, which are made up of appointed experts ‒ lawyers and judges. Each of these aspects of law will be considered in turn.

Legislation, Regulation, and Bylaws

Parliament and provincial legislatures make a wide variety of laws. Some provincial laws, such as public school or education acts, deal directly with education. But many other pieces of legislation also have important implications for schools. Labour laws affect the working conditions and status of teachers. Criminal law, including the Youth Criminal Justice Act, affects the way schools handle certain kinds of offences and disciplinary issues. Child welfare legislation places certain requirements on schools in regard to child abuse and protection, among other things. Copyright legislation affects the availability of teaching materials.

Many provincial and federal laws include sections that authorize the provincial minister to make regulations. Regulations typically involve the details of carrying out some intention or action contained in the legislation (see Box 4.4.1). For example, provincial education laws authorize ministers of education to provide funds to school boards. The precise way in which such funds are allocated is usually determined in the regulations. Whereas laws are passed by legislatures, regulations are made by the Cabinet (either federal or provincial). They are then made public by the government, and have the force of the law under which they are enacted. Regulations are much easier to alter than are laws, since the changes can be made in private by the government. In any particular case, the government will decide, when it brings forward legislation, which matters should be spelled out in the law itself and which should be reserved for Cabinet decision and amendment through the regulation process. In education, in addition to finance formulas, such matters as the organization of the school year, the qualifications for teacher certification, and various matters of curriculum are usually subject to regulation. In some provinces, ministers may also issue policies that have legal force.

In addition to laws passed by Parliament or provincial legislatures, and regulations made under those laws, there are other important documents that have legal status. Many organizations are given legal status through federal or provincial legislation. School boards are legally authorized and given particular powers through provincial laws, as are municipalities. These organizations cannot make laws, but they can make bylaws, which are also legally enforceable within the statutory powers granted to the particular organization through its legislation. For example, school boards pass bylaws to determine their own structure and operations. School boards also make formal policy decisions about school sites, school boundaries, budgets, and staffing, and others carry out these decisions because they are made by a duly constituted authority. To take another example, teacher organizations, which are themselves legally authorized through provincial legislation, may make rules of conduct that are binding on their members.

The Courts

Courts play a vital role in the legal system in that the application of law hinges on judgments about particular cases, and these judgments are made by courts and judges. As a matter of course, every law requires interpretation as to how it applies to a particular circumstance. However, because human situations are so varied, there is no law, no matter how carefully written, that can take every possibility into account. In some cases, laws are deliberately vague because there is such political disagreement over what they should say that the matter is partly left to the courts to decide. The Charter of Rights and Freedoms is one example of legislation with language requiring the courts to decide what specific clauses mean. As some of the issues discussed later in this chapter demonstrate, the work of interpreting law is a continuous process.

Over time, laws may also need to be reinterpreted to meet newly emerging needs or changing circumstances. Legislation that is not revised can become out-dated. It is then left to the courts to apply existing laws to new circumstances. For instance, Canadian copyright law has been revisited numerous times, since important issues of intellectual property rights relating to the copying of computer software and digital media were not covered under the 1924 law, which had remained in force up until the first revision that included these concerns in 1988. In education meanwhile, emerging issues such as the teaching of students with special needs, gender identity, access to student records, or parental rights in determining school programs are not always defined in the education statutes. Judges have a very important role in shaping the practical applications of a particular piece of legislation.

The Canadian legal system generally recognizes the supremacy of the legislature, which means that our courts tend to be reluctant to give instructions to elected bodies as to what they must do. On the other hand, courts are not concerned just with interpreting laws. They also have the authority to declare that a particular law is invalid. This may occur when the requirements of one law are seen to conflict with the requirements of another. In such a case, a court may then rule that one of the laws is invalid and must be changed. In this way, judicial decisions can lead to a legislative change. The Charter has often been used as the basis for arguing that a particular law is invalid. As Clémente (2018) notes:

The Charter of Rights and Freedoms has transformed the role of the courts, which are increasingly using the abstract principles listed in the charter to invalidate legislation. The number of cases before the Supreme Court of Canada that involve human rights increased from 20% in 1975 to more than 60% of the court’s docket after 1982.Whereas the court rarely invalidated a statute before 1982, since then the court has invalidated at least one statute every year (Songer et al., 2013). Many of these cases have been instigated by social movement organisations.  Organisations as diverse as the Assembly of First Nations, Council of Canadians with Disabilities, Ontario Coalition Against Poverty, and the United Church are framing grievances such as clean water, services for people with disabilities, assisted suicide, education, universal health care and the environment as human rights. (p. 161)

Thus, the courts also have the potential to play an important role in making laws as well as interpreting them.

There are several different kinds and levels of courts in Canada, each of which has particular authority and responsibility. The nature and role of courts are determined through both federal and provincial legislation, with the exception of the Supreme Court of Canada, whose structure and role are defined in the Constitution. The Supreme Court plays the most significant role for several reasons. First, its rulings are binding on all other courts in Canada. Second, controversial cases in all areas of law may be taken to the Supreme Court for a ruling that will provide clear direction to the lower courts, and thus a common interpretation of the law across Canada. Third, the Supreme Court is responsible for determining how the various clauses in the Constitution will be interpreted.

In making decisions, courts take into account not only the arguments of the lawyers who represent the various parties involved, but also any applicable legislation and previous court decisions called “precedents.” Often more than one piece of legislation will apply to a particular case; when the various laws conflict, the judge must sort out the conflicts before rendering a decision. Precedents are important in influencing judges’ decisions. Indeed, over time a body of precedents (often called “case law” or “common law”) emerges to guide legal decision making. Precedents, though important, are rarely completely binding, since the circumstances of each case are somewhat different. Moreover, as people’s views change, the meaning of the circumstances of a particular case also changes until an earlier judgment is no longer seen as appropriate. In this sense, law is never a fixed and final matter, but is constantly changing and evolving.

Court decisions are also guided by certain basic legal concepts. One of these, often found in judicial decisions, is the concept of reasonableness. Many court judgments make reference to the matter of what a “reasonable person” might have been expected to do under a certain set of circumstances. The fact that reasonable people can often disagree over what is reasonable makes a concept such as this one particularly hard to define precisely, as we will see later in the chapter.