What you need to know
about the Bill 40 court case
Constitutionality of Bill 40 plan to eliminate English school boards being heard by Quebec Superior Court
By Irwin Rapoport
The long-awaited case regarding Bill 40 (passed in February 2020), the CAQ government’s legislation that eliminated Quebec’s French school boards and replaced them with ministry of education controlled Service Centres and seeks to eliminate the nine constitutionally-protected English school boards, began on April 14 at the Superior Court of Quebec.
This is a much watched legal dispute that the province’s English-speaking community should follow intently – the ultimate ruling shall determine whether we continue to maintain our school boards and control and manage our schools and educational institutions or lose the last institution under community control.
The stakes are high. The democratically elected French boards were swept away overnight – they should be restored ASAP – and their students and parents are paying the price for that action. Whereas the English boards were able to purchase and install air filters for their classrooms, the provincial government denied that option to the Service Centres.
… the ultimate ruling shall determine whether we continue to maintain our school boards and control and manage our schools and educational institutions or lose the last institution under community control.
When the Sir Wilfrid Laurier School Board refused to follow the order to end the system of one day in class followed by another day of online classes for high school students, a move followed by the English Montreal School Board and others, a frustrated and stymied Premier Francois Legault, at a press conference, lashed out at the EMSB for not complying as the Service Centres did. In fact, Westmount High School students led a protest to condemn Legault’s change as the third wave was ramping up.
Westmount High’s senior students influenced and encouraged students and parents from other school boards to fight back, citing health concerns for themselves, their families and the community, with COVID-19 variants spreading rapidly. This incident illustrated the need for independent school boards – perfect timing one might say.
The Quebec English School Boards Association’s (QESBA) defence for the court to reject Bill 40 is based on the constitutional protection provided by Section 23 of the Canadian Charter of Rights and Freedoms, and jurisprudence from several Supreme Court of Canada rulings which defended French school boards in other provinces.
Manitoba’s provincial government, via Bill 64, should it be passed, will eliminate 37 English public school boards and replaced them with “a single education authority made up of government appointees” by July 2022, according to The Toronto Star. We’ll see how Manitoba parents react to this and if Premier Brian Pallister backs down. But more importantly for the Bill 40 case, The Toronto Star article noted, “The Division scolaire franco-manitobaine will remain mainly intact, however, owing to minority language rights.”
‘The Quebec English School Boards Association’s (QESBA) defence for the court to reject Bill 40 is based on the constitutional protection provided by Section 23 of the Canadian Charter of Rights and Freedoms…’
The protection of the French boards is based on Section 23, which was carried over from Section 93 of the British North America Act passed in 1867 and bolstered by the 1990 Mahe vs. Alberta Supreme Court ruling that protected Alberta’s French school boards from being wiped out. According to the Wikipedia page for the historic case, “The ruling is notable because the court established that Section 23 of the Canadian Charter of Rights and Freedoms requires that parents of the official-language minority in each province have the right either to be represented on the school board or to have a school board of their own, in order to provide adequate protection for the education rights of their children.”
Also from the Wikipedia page, “The Court held that Section 23 guarantees representation on the school board, and exclusive control over the children’s education with respect to culture; or it can guarantee a separate school board. However, there must be a sufficient minority language population to warrant either level of protection. In this particular case, the Court decided representation on an existing school board would be sufficient, and held that this did not interfere with denominational school rights under Section 29 of the Charter since it merely affected language.”
“The Court’s unanimous decision was given by Chief Justice Brian Dickson. He began by examining the purpose of Section 23, which is to ‘preserve and promote the two official languages of Canada and their respective cultures.’ The Section was intended to be remedial to prevent the loss of a minority group’s language and cultural identity and so must be interpreted in light of Sections 15 and 27 of the Charter.”
‘The protection of the [Alberta] French boards is based on Section 23, which was carried over from Section 93 of the British North America Act passed in 1867 and bolstered by the 1990 Mahe vs. Alberta Supreme Court ruling…’
This is powerful jurisprudence and it applied to French and English linguistic minorities across this country. The federal government is currently preparing legislation to revamp the 1969 Official Languages Act (OLA), which many English-speaking community organizations and leaders fear will result in an asymmetrical federal bilingualism policy – a French Quebec and a bilingual rest of Canada.
The Quebec government is not only pushing for Bill 101 to be applied to federally-regulated businesses in Quebec but for the OLA to recognize that Canada has only one official minority language group in Canada, which would be the French and apply to minority French communities. The reason for this demand is to remove the legal protection for the English school boards under Section 23 and thus make Bill 40 legal.
Legault’s strategy is very calculated and crafty and fits in with his goal to dismantle the last institution controlled by the English community in Quebec. Our community has good reason to be concerned that the Liberal government led by Prime Minister Justin Trudeau will agree to Legault’s demands and throw our community “under the bus.”
Bill 40 did not apply to the English School boards due to a September 17, 2020, Quebec Court of Appeal upholding of an August Superior Court ruling that suspended the bill’s application to the minority language institutions. According to a CBC News report, “A coalition of community groups and school boards is challenging the constitutionality of the law, arguing it violates minority language educational rights.”
‘The Quebec government is not only pushing for Bill 101 to be applied to federally-regulated businesses in Quebec but for the OLA to recognize that Canada has only one official minority language group in Canada, which would be the French and apply to minority French communities.’
The three justices, who maintained the suspension, were crystal clear about the scope of the proposed change and the constitutionality of the legislation. Stated the ruling, “The replacement of English school boards by the school Service Centres forms part of what, at first glance at least, constitutes a significant transfer of the power of management and control over the English-language minority’s educational system to the minister and employees of future school Service Centres. The public interest leans in favour of protecting the rights of the official linguistic minority rather than implementing Bill 40 in the English educational sector, at least until there is a judgment on the merits.”
At face value, it appears that the Superior Court justice hearing the case is bound to dismiss the Quebec government’s arguments and back Section 23 guarantees, and bow to the jurisprudence going back to the Mahe vs. Alberta case. The eventual ruling will be eagerly anticipated and most likely be appealed all the way to the Supreme Court, a process that could take two years at a minimum.
The April 8 CTV News report, concerning a call by some West End parents for the EMSB to create a new West End high school, has at the bottom, a link for an interview that CJAD conducted with QESBA Executive Director Russell Copeman that not only deals with the cancelled plan to have senior high school students return to full-time classes in school but also the Bill 40 case. It is well worth a listen.
Now that you, the reader, are up-to-date on what has led to this case being heard by the Superior Court and its ramifications, you are prepped to follow the legal arguments being presented. This is a crucial case for the community and it is a call to get involved for the benefit of our students and future generations.
‘At face value, it appears that the Superior Court justice hearing the case is bound to dismiss the Quebec government’s arguments and back Section 23 guarantees, and bow to the jurisprudence going back to the Mahe vs. Alberta case.’
Let us ensure we retain our English school boards. One thing we can all do is vote in the upcoming school board elections, which have twice been suspended due to COVID-19. Elections for positions will take place at several boards in the Greater Montreal Area and across the province. Some people are already on the electoral list but others were automatically removed from the list after their children graduated from high school.
If you did not receive a voter reminder card last fall, you are not on the list, but this can be corrected. For the EMSB, go to emsb.qc.ca/emsb/about/governance/elections and for the Lester B. Pearson School Board, go to boardsite.lbpsb.qc.ca/school-board-election
A strong voter turnout will demonstrate that our community cares about its school board. This is doable.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the opinions of WestmountMag.ca or its publishers.
Feature image: StockPholio.com
Read also: other articles on politics
Irwin Rapoport is a freelance journalist and former school commissioner with the Protestant School Board of Greater Montreal (1990-1994). He is currently a candidate in Ward 3 for the English Montreal School Board elections.