The Gleaner

‘A good day for school boards in Quebec’: Superior Court rules parts of Bill 40 are unconstitutional

A ruling issued on August 2 by the Quebec Superior Court has struck down several sections of the Legault government’s controversial education reform law as unconstitutional.

In celebrating a “clear victory,” the Quebec English School Boards Association (QESBA) referred to the decision as a “significant and important win for Quebec’s English community and for linguistic minorities throughout the country.”

The 125-page judgement by Superior Court Justice Sylvain Lussier upholds the QESBA’s challenge of Bill 40, saying the Act (which was to amend, mainly, the Education Act regarding school organization and governance) is a violation of minority language education rights that are guaranteed under Section 23 of the Canadian Charter of Rights and Freedoms.

The QESBA also argued that the law, which would convert English school boards into “school service centres,” would strip the English community of its right to manage its schools while granting the government too much control over education.

Lussier ruled that several sections of the law cannot be applied to English school boards, including Bill 40’s eligibility requirements for running for election to the board, or sitting on the board of directors. The law’s measures placing unelected staff members on boards, as well as a rule designating a service centre’s director general to as official spokesperson, were struck down.

Lussier also rejected a government argument that only parents with children presently in English schools hold rights pursuant to Section 23 of the Canadian Charter. He instead applied a much broader definition of a rights holder that incorporates the community, ruling that rights should extend to everyone who is or has been eligible to enrol their children in English school.

The court ruled that the Quebec government has an obligation to consider the needs and preoccupations of the English-speaking community, including prior consultation on legislation, which it concluded had not taken place with Bill 40.

Justice Lussier also emphasized that his ruling does not represent a detriment to the French language and has no bearing on its protection within the province.

A recognition of fair play

“This is a good day for school boards in Quebec,” says John Ryan, the chair of the New Frontiers School Board council of commissioners. He was present Wednesday morning at the QESBA main office for a briefing by lawyers on the ruling, which was officially released later at 2 p.m.

“It is a foundational judgement,” Ryan says, noting that while he was anticipating a positive result based on the constitution, the actual ruling went beyond their expectations in its inclusion of decades of jurisprudence regarding minority language education rights in Quebec and across Canada.

“We needed this,” he says of the win. “It is recognition of fair play,” he adds, suggesting the ruling also sends a clear message to the government that “Section 23 rights have value, and they can’t be ignored.”

The government has made no comment on the ruling other than a statement issued by a spokesperson for Quebec Justice Minister Simon Jolin-Barrette, saying the government has taken note of the judgement and will analyze the possibility of appealing the decision.

Ryan says the QESBA is asking the government not to appeal the decision. “We are hoping not, but should it come, we will deal with it,” he says of the 30 days in which the government could launch an appeal. Both the Quebec Liberal Party and the Conservative Party of Quebec have urged the CAQ government not to appeal the decision and to focus instead on pressing education issues including teacher and staff shortages, and improving the quality of education and school infrastructure.

In the meantime, the status quo for the NFSB and other English school boards in Quebec has largely been maintained. They will retain the same composition, and board elections will continue with the exception that only rightsholders will now be allowed to vote.

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