Chapter Four: Law and Education
In 1982, as part of the new Constitution, Canada adopted the Charter of Rights and Freedoms. It did so only after a great deal of debate over whether a constitutional statement of rights was desirable.
Canada has a mixture of legal and political practices and institutions drawn from many sources (British, French, American), which were themselves drawn from earlier Roman, Greek, and Indigenous practices and ideas. The British legal tradition has no formal constitution, and no set of rights that are defined by a single legal document like the Charter. Instead, rights in Britain have emerged gradually, primarily through political and legal processes; that is, the British Parliament has made laws that have either given or extended legal rights. The American system, on the other hand, began with a set of legal rights enshrined in the Constitution, and has since relied on the courts for interpretation and enforcement. Some people feel that the American approach provides stronger protection of rights because legislatures may be swayed by short-term political considerations to act in ways that limit people’s rights (especially the rights of minorities, who may have little political power). Others feel that it is a mistake to give lawyers and judges so much authority to shape our society. They argue that elected officials rather than appointed judges (who are not accountable to the public for their decisions) ought to be responsible for the important task of determining rights. After considering both systems, Canada opted in 1982 for a written charter, closer to the U.S. model.
The Charter outlines a number of rights that all Canadians have. Before discussing these rights, it is important to note some limitations that apply to them all, the most significant of which is the fact that the Charter applies only to the acts of government or governmental agencies; individual citizens and corporations are not required to abide by its provisions. Thus, a private company cannot be sued under the Charter for discriminating on the basis of sex, but a school or school district, because it is a government agency, can be sued on those grounds.
All rights in the Charter are potentially limited by Section 1, known as the limitations clause, which allows “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” In interpreting the Charter, as is the case in many other legal issues, courts give weight to the concept of reasonableness. They have to decide if particular actions or decisions made by people or organizations can be considered reasonable. An interpretation always involves judgments about such measures as the state of society and public attitudes. The Supreme Court has handed down a number of decisions that show how Section 1 will be interpreted; decisions that emphasize the requirement that limits be shown to be both necessary and reasonable in relation to the good to be achieved (MacKay et al., 2020).
Sections Relevant to Education
Several sections of the Charter have particular relevance to education. Section 2 guarantees to all Canadians freedom of religion, belief, assembly, and association. These rights are, however, quite restricted in schools. Students are clearly not free in schools to say whatever they believe, to associate with whomever they wish, or to be in whatever places they choose. Students are often subject to dress or conduct codes that limit their freedom of expression and assembly. Criticism of school practices and personnel may be considered a punishable offence. School newspapers are often censored by staff members.
A second area of the Charter that may have important consequences for schools concerns the provisions in Sections 7 and 11 regarding natural justice. School discipline practices frequently appear to violate principles of natural justice. For example, teachers often accuse students of misdemeanours and impose punishments on them without explaining precisely what the transgression is and without providing an opportunity for the students’ position to be heard. In effect, students may be compelled to give evidence against themselves (prohibited under Section 11c). Students are not always presumed innocent until proven guilty by a public and impartial tribunal (Section 11d). Appeal processes may not exist, and so on.
Section 15 of the Charter is particularly important for educators in that many practices in schools could be considered to be discriminatory in some respect. Consider a few examples. Public school legislation in most provinces specifies the ages at which students must attend school ‒ typically from ages 6 to 16. Many provincial laws and school acts also end the right of attendance at age 21. Section 15 prohibits discrimination on the basis of age. Is it, then, discriminatory for provinces to require compulsory attendance until certain ages? Is it discriminatory for provinces to deny a right to attend school after age 21? Is it discriminatory to deny students entry to grade 1 unless they turn 6 before a particular date? Or can such limitations be justified as “reasonable”?
Section 15 may raise more questions than it answers. What is meant by discrimination? Is any distinction based on any of the criteria in the section discriminatory? If not, what makes a distinction qualify as discrimination in the negative sense? Moreover, Section 15 ‒ which allows discrimination if its goal is the “amelioration of conditions of disadvantaged individuals or groups” ‒ invites questions of what is meant by ameliorating, and how we would judge whether a particular measure is ameliorative.
Section 15 also prohibits discrimination on grounds of mental or physical disability. Is it, then, discriminatory to create separate classes for learning disabled, cognitively challenged, or medically fragile students? Some might argue that these provisions are not a violation of the Charter as they are intended to improve opportunities for these students, thus falling under the exception in Section 15(2). But do separate classes improve the situation for students? Most separate classes for students with exceptionalities have been eliminated on the grounds that they did not provide the most effective education. However, the Supreme Court has ruled that such separate classes are not necessarily discriminatory (Box 4.7.1).
Impact of the Charter
Various issues raised under the Charter can arouse strong feelings in people. Some educators feel that the Charter will limit their professional autonomy and judgment, will make discipline in the schools too lax, and will give too many rights to minority groups, with the cost being borne by the majority.
What the Charter means in practice is determined by decisions made by Canadian courts, and especially the Supreme Court. Generally speaking, the courts have been relatively conservative in interpreting the Charter. They have supported many restrictions on freedoms as being required by other, equally important social needs, and therefore as falling within the “reasonable limits” clause of Section 1. The courts have tended to give considerable weight to the opinions and knowledge of professional educators (MacKay et al., 2020). Courts that have overturned current laws or practices have often stated what is inappropriate, and they have suggested that the appropriate legislative body frame a new law that would not be inappropriate. For example, in the matter of minority language rights in education, courts in Ontario, Alberta, and Manitoba have all said that the then-existing provisions did not meet the requirements of the Charter. But not one of these courts has told the province in question just what it should do to meet those requirements; that responsibility has been left to governments and to the political process.
- In the case of Eaton v. Brant, parents of a child with cerebral palsy attempted to overturn the school board’s decision that their daughter could not be cared for properly in a regular classroom. The Supreme Court ruled in 1996 that excluding a disabled child from a regular class even when the parents disagree is an acceptable form of discrimination provided that it is based on a careful assessment of the best interests of the individual child (Supreme Court of Canada [1996, S.C.J. No. 98]).
- A group of parents in British Columbia went to court in an effort to have the government fund the Lovaas Autism Treatment for their children. The court declared that by not providing adequate support for available and effective treatment of autism the government had failed to accommodate the disadvantaged position of autistic children in violation of their rights under Section 15(1) of the Charter (Auton v. British Columbia, July 6, 2000, cited in Entitlement to particular special education program, October, 2000).
- In an Ontario Supreme Court decision (2003), the application judge concluded that, like all other students, a student with an exceptionality did not have a vested right to attend any particular school within the jurisdiction of the Ottawa-Carleton District School Board. In fact, the Board had the authority to transfer students, including students with exceptionalities, for safety reasons, even if the transfer had the effect of changing a pupil’s placement while an appeal in respect of that placement was outstanding, as long as the transfer was made fairly and with just cause.
- In 2012, the Supreme Court of Canada ruled on a case in which a student with a severe learning disability left the British Columbia public system to attend a private school subsequent to the school district’s decision to close a separate special program (Moore v. British Columbia, 2012 SCC 61). Jeffrey Moore’s parents filed a complaint to the British Columbia Human Rights Commission alleging discrimination based on the fact that the public school system closed the special program without replacing it with an appropriate alternative, thereby denying their son’s right to an appropriate education. In its ruling that upheld a finding of discrimination, the Supreme Court stated, “adequate special education, therefore, is not a dispensable luxury. For those with severe learning disabilities, it is the ramp that provides access to the statutory commitment to education made to all children…”
The Charter has clearly had some impact on education and will continue to do so. It has made people more aware of the extent to which issues of rights are important in thinking about the way schools are organized and operated. There is more thought given now to how students, parents, and teachers might feel about a particular policy or provision. Increasing legitimacy is being given to the right of parents to have some input into school policies, and principles of natural justice are playing a more prominent role in school policies. We can expect this trend to continue, with the Charter acting to change schools gradually rather than quickly. The end result may be schools that are significantly different in their treatment of rights (Clémente, 2018).