Quebec judge rules against expanded access to online learning

Allowing every child in Quebec to learn over the internet during the pandemic is not in the public's interest, a Superior Court judge ruled Tuesday.

The judge, Frédéric Bachand, dismissed an emergency request from parents who wanted their children to access distance-learning resources, even though they hadn't received the necessary medical exemption.

Unlike in some other provinces, such as Ontario, school attendance is mandatory in Quebec unless parents have obtained a note from a doctor.

The criteria set out by the government for an exemption are narrow and only a small number of students have qualified for them so far, according to school authorities. 

Only children who receive a medical exemption, or are subject to isolation orders, are allowed to be taught online.

A group of parents filed a lawsuit last month challenging those restrictions, arguing they infringed their charter rights.

As part of that lawsuit, the parents also sought a safeguard order — similar to an injunction — that would have forced the Quebec government to broaden access to distance learning, pending a decision in the lawsuit.

Individual rights versus public interest

In turning down the request for the safeguard order, Bachand acknowledged that in-person learning entails risks both for the student and their family, considering the uncertainty about how the coronavirus is transmitted and the seriousness of the disease.

Forcing parents to send their children back to school in this context, Bachand wrote, raises questions about whether the liberty provisions in section seven of the Charter of Rights and Freedoms are being respected.

That section "guarantees every individual the right to make decisions about questions that are particularly important to them," Bachand said in his 21-page decision. 

"And the choice of returning to school either in-person, or by distance, in the exceptional context of the COVID-19 pandemic can be included in those questions."

Bachand's decision does not deal with the substantive claims of the lawsuit. The criteria for granting a safeguard order are narrow, and include weighing the public interest against the remedy being sought by the plaintiffs. 

In this case, Bachand said, expanding access to distance learning would undermine the benefits of having most Quebec children back in a classroom.

He pointed to affidavits provided by experts and government officials that testified to the advantages of in-class learning for social and psychological development as well as to the soundness of the safety measures in place.

Bachand said given that evidence, he had to determine whether the public interest was better served by allowing school-aged children to learn online. 

"In my opinion, that's clearly not the case," he wrote. 

Lawsuit continues

A spokesperson for Quebec's education minister, Jean-François Roberge, issued a brief statement Tuesday saying the minister would take time to study the judgment before commenting.

According to figures released earlier Tuesday by the government, there have been 120 confirmed cases of COVID-19 among students and staff since schools reopened two weeks ago.

Those 120 cases are distributed over roughly 120 different schools in the province, suggesting there have no been no outbreaks among students.

The lawyer representing the parents, Julius Grey, said the fact cases continue to accumulate in Quebec schools demonstrates the need for easier access to online learning. 

"The matter is not finished. This is only a provisional judgment. I think many of [Bachand's] findings will be useful in establishing our rights in the primary hearing," Grey said.

But for the parents involved in the case, Tuesday's decision was disappointing. They will now have to decide between sending their children back to school, or home-schooling them. 

"We've always wanted to send our kids to school. We're just concerned it's a high-risk environment," said plaintiff Sarah Gibson, whose two children attend a high school in Montreal's West Island.

"We want the freedom to say this is now too risky."