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Quebec will appeal ruling that declared Bill 40 school board reform ‘unconstitutional’

The Quebec government has filed an appeal of the Superior Court ruling that struck down sections of Bill 40, the government’s controversial education reform law, as unconstitutional.

“I think we need to appeal,” said Premier Francois Legault during a press conference in Saguenay on September 8. The comment came following two days of pre-sessional meetings with the Coalition Avenir du Québec caucus. He noted that the turnout for school board elections were very low even in the English boards and maintained that best practices should be put in place on both the English and French sides.

The premier did not elaborate on the legal reasoning behind the decision to appeal the ruling which was issued August 2 by Judge Sylvain Lussier. A statement issued later that day by Education Ministry staff said, “The judgement raises questions of interpretation of the law and issues of judicial order.” It adds: “Nevertheless, we extend a hand to the QESBA and hope to pursue exchanges with the anglophone education network.”

The 125-page decision by Lussier upheld a challenge to Bill 40 by the Quebec English School Boards Association (QESBA). It ruled that sections of the law, which would convert English school boards into “school service centres,” are a violation of minority language education rights that are guaranteed under Section 23 of the Canadian Charter of Rights and Freedoms.

“This was a strong judgement for our community, and we are very disappointed that this government has decided to pursue an appeal of the entire judgement,” said QESBA president Dan Lamoureux in a statement.

The association, which represents 100,000 students in over 300 elementary, secondary, and adult and vocational centres across Quebec, noted that Lussier affirmed in no uncertain way the fundamental importance of minority language rights. “This decision means that the onus continues to be on us to defend our Charter rights,” lamented Lamoureux.

Over a dozen arguments

The notice of appeal filed by the attorney general lists over a dozen arguments supporting the province’s request to be heard by the Quebec Court of Appeal. According to Quebec, the court’s “conclusions are not consistent with the teachings of the Supreme Court (of Canada) regarding Article 23 of the Canadian Charter, but they go beyond everything that has been recognized in Canadian constitutional law and collide head-on with the principles of the separation of powers and parliamentary sovereignty.”

The province argues that Lussier erred in his consideration of the historical context of the English-speaking community in his interpretation of Section 23 of the Canadian Charter, as well as its application to the “right to education in the language of the minority versus the right to a system of political governance.”

The government is also challenging the court’s ruling that Quebec has an obligation to consider the needs and preoccupations of the English-speaking community. The attorney general argues Lussier “erred in concluding that Section 23 imposes an obligation to consult the members of the minority language community, that it applies within the framework of the legislative process and that it imposes on the legislative power the obligation to integrate into a law the elements requested by the English-speaking community that would meet their needs.”

A significant time

In the weeks following the Superior Court ruling, the QESBA, along with several minority rights groups, the Quebec Liberal Party, and the Conservative Party of Quebec, urged the government not to appeal the ruling. The Liberals have since referred to the decision to appeal the ruling as “deplorable” and the government “picking another fight with the English-speaking community.”

Other reactions include a motion passed by the board of directors of the Quebec Community Groups Network on September 14 to obtain intervenor status in the appeal. In a statement published by Le Devoir, QCGN director general Sylvia Martin-Laforge notes, “It is important for the community to have institutions that are managed by the community. The centralization of government is not a good idea, in any sector.”

For John Ryan, the chair of the council of commissioners of the New Frontiers School Board, the decision to appeal the ruling was not unexpected. It is a frustration, he admits, as the school boards are now having to defend “what everyone feels was a good, strong judgement.”

Beyond the disappointment, Ryan says the QESBA has confidence in the ruling and is prepared for the challenge. “We will do what we have to do,” he says, noting it is important to invest the time and effort into the process, in the hope of achieving a clear understanding of the English system and what can and cannot be touched in terms of Section 23 minority rights.

“We are watching history in the making,” he adds, suggesting this is one of the most significant times in English education history since 1998 when school boards were reorganized along linguistic lines. “We are building a secure system for ourselves as a minority,” he says of the ongoing fight to ensure the English community maintains the right to manage its schools.

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