Quebec Superior Court judge rules parts of Legault government's school board law unconstitutional

The Quebec government's effort to transform English-language school boards into service centres, as it has done on the French side, is unconstitutional and violates the rights of the province's English-speaking minority, Quebec Superior Court ruled Wednesday.

Justice Sylvain Lussier's 125-page ruling invalidates a significant number of articles found in the controversial Bill 40 — the Legault government's 2020 education reform law that sparked a challenge by the Quebec English School Boards Association (QESBA). 

QESBA argued the law violates minority language education rights guaranteed in Section 23 of the Canadian Charter of Rights and Freedoms, and that it would grant the government too much control over education.

The association was awarded a stay in 2020, and the Quebec Superior Court then heard the case in 2021.

That stay is why institutions like the English Montreal School Board (EMSB) continue to operate today while the French school boards have been abolished.

Lussier's ruling specifically criticizes the limitations on who governs English-language educational institutions.

He confirmed it is a violation of Article 23, which grants parents belonging to a linguistic minority in a province the right to education in their language throughout Canada.

'It takes a village to raise a child'

Quoting the old adage, "It takes a village to raise a child," the judge said the designation of representatives from the community goes beyond a group of parents with children enrolled in school.

"The law must aim to promote community members' participation in school management for the development of the community," he said.

"The issue at stake is the transmission of culture."

The court, therefore, rejected the limitations imposed on who can run for school elections or lead a board of directors.

"Limiting, directly or indirectly, as the law does, the right of representatives to run for school elections restricts the minority's right to the management and control of its educational institutions," he said.

The judge cited Pauline Marois who, as education minister in Lucien Bouchard's Parti Québécois government in 1997, had established school boards based on linguistic criteria.

"It is even written in the Charter of Rights that the English-speaking community may have the right to control its institutions," Lussier said.

QESBA celebrates ruling

In a statement, QESBA says it is thrilled with the decision, noting the judgment takes into account decades of jurisprudence regarding minority language education rights in Quebec and throughout Canada.

"We truly hope that the government will decide not to appeal this clear decision that is based on our rights to manage and control our schools," said QESBA president Dan Lamoureux in a statement.

Russell Copeman, QESBA's executive director, said the Charter of Rights is in place to protect the rights of minorities — to shelter those rights from the decisions of the majority. 

He called Wednesday's decision a "clear victory for the control and management rights of the English-speaking community."

If necessary, Copeman said, Lussier's ruling will be used to challenge Bill 23 — Quebec's second education reform bill in three years. 

The proposed bill would allow the government to appoint a director for each school service centre and veto some of their decisions.

Lussier struck down a Bill 40 article that would have transferred the powers of spokesperson from the board's chair to the director general, Copeman explained. It was ruled as unconstitutional as it does not respect management rights, he said.

"If that was struck down, it just reinforces the notion that the government of Quebec naming the director generals of school boards, as they want to do in Bill 23, is manifestly unconstitutional," said Copeman.

"Certainly we will use those types of arguments in the event that Bill 23 is adopted in its current form."

A spokesperson for Quebec Justice Minister Simon Jolin-Barrette said the government has taken note of the judgment and will analyze the possibility of appealing. Beyond that, the government is not commenting further.