Bill 40 protects minority rights, government lawyer argues

English school boards aim to pursue constitutional challenge of legislation

Bill 40 further protects a minority’s rights to education in their language because it provides parents with more ability to make choices that concern the schools their children attend, a lawyer for the Quebec government said in court Thursday.

In a case being heard at the Montreal courthouse, Quebec’s nine English school boards are asking that Bill 40 be suspended, as it applies to them, or that they temporarily be exempted from it before they can present a constitutional challenge of the legislation at a later date.

Manuel Klein, an attorney representing the province’s attorney general, argued the boards failed to prove they will be harmed by the legislation adopted by the Quebec government in February.

The legislation abolished all of Quebec’s school boards and created what the CAQ government calls “service centres.”

“They have not demonstrated a concrete prejudice caused to parents and children by Bill 40,” Klein said. “To the contrary, Bill 40 improves the protection provided by Section 23 (of Canada’s Charter of Rights and Freedoms) because it provides an advantage of powers to parents on an administrative council of school service centres.”

But, as the hearing neared its end on Thursday, Superior Court Justice Sylvain Lussier said he might have to take into consideration how little time the CAQ government spent consulting with the English speaking community before it adopted Bill 40.

“What I have before me is that the government did not seem to make a strong, strong, strong effort with the English minority,” Lussier told Klein and Samuel Chayer, another attorney representing the government.

Klein also argued Bill 40 does not alter decision-making powers over things like human resources or control over school buses.

Earlier this week, lawyers representing the Quebec English School Boards Association (QESBA), a group that represents all nine English boards, argued, among other things, that Bill 40 would drastically reduce the number of people who could run in elections for seats on service centres. Under Bill 40, the only people who could run for such seats are the parents of a child in school and they would have to have previously sat on a governing board of one of their children’s schools.

Previously, anyone on an English school board’s electoral list was eligible to run. Perri Ravon, a lawyer representing the boards, estimated that Bill 40 would reduce the number of people in the English speaking community who could run from 270,000 to as low as 1,100.

Klein and Chayer countered that Bill 40 concentrates more decision-making power to parents.

“I submit to you that when we compare what existed before with what exists now (Bill 40) you see that the essence remains. It is in fact the same elements that were in the old (legislation) that are in the new,” Klein said while arguing that the general powers of the service centres remain the same.

But as he continued, Klein also said that Bill 40 “slightly modifies” several significant decision-making powers, including how a service centre would “adopt, under certain conditions, policies over maintaining or closing its schools.”

Justice Lussier is not being asked to rule on the constitutional issues, but QESBA is asking him to suspend Bill 40, as it applies to the nine boards, or exempt them from it. The association contends the matter is urgent because elections to the new “service centres” are scheduled to be held in November, before its constitutional challenge can be heard in court.

During the hearing Thursday, Lussier asked lawyers representing the nine school boards to explain how a Quebec Superior Court judge can suspend legislation adopted by an elected government.

“Let’s say I grant the exemption of the state, which is one thing, but basically you are asking me to pronounce that abrogated provisions (the previous version of the Education Act) be still in force,” Lussier said.

“You’re asking me to revert or maintain a statute which the National Assembly has decided should be abrogated. Where (in the law) can I do that?”

Ravon said that Bill 40 “already provides for delayed implementation in almost all aspects of the regime in the English language sector. In fact, it’s already contemplated by the National Assembly.”

The case will resume on Friday.