The Quebec English School Boards Association (QESBA) is celebrating another victory in its legal battle against the contentious Bill 40 after the Court of Appeal ruled parts of it are unconstitutional.
In a decision handed down on Thursday, the appeal court largely upheld a 2023 Superior Court ruling that declared several parts of the bill, which overhauled the school governance in Quebec, violated rights guaranteed under section 23 of the Canadian Charter of Rights and Freedoms.
Among them was a provision that had abolished school boards and replaced them with school service centres, which was later stayed in the English school system pending court challenges.
The Attorney General of Quebec appealed the Superior Court decision in September 2023.
However, a panel of three appeal court judges agreed that the bill violated the rights that allow certain individuals who are not members of the linguistic minority in Quebec to vote and run in school board elections for the English-language education sector.
“It’s a sweeping win for English school boards and for the English-speaking community,” said QESBA President Joe Ortona in an interview.
Thursday’s 90-page ruling also stated that funding must be the responsibility of minority language representatives and can’t be controlled by the provincial government.
QESBA added “the Court firmly rejects, once again, the Government’s argument that only parents with children presently in English schools are rightsholders pursuant to section 23 of the Canadian Charter.”
The panel of judges, however, disagreed with certain remedies ordered by the Superior Court judgment on Aug. 2, 2023, and disagreed with the trial judge that the Charter imposes an obligation on the Quebec legislature to consult representatives of a linguistic minority before adopting laws related to education.
QESBA first challenged the law in 2020.
Ortona said it’s been a “very long and frustrating battle” and that Thursday’s ruling is a decisive one because it came from francophone judges who “recognize that the English-speaking community has constitutional rights, and the Quebec government has an obligation to uphold those rights and respect them.”
Government could appeal ruling to Supreme Court
It’s not yet clear whether or not the Quebec government will appeal to the Supreme Court of Canada. In an email to CTV News, a spokesperson for Education Minister Bernard Drainville would only say that he is reviewing the judgment and wouldn’t make any further comments.
Ortona said he doesn’t see a path for the government to appeal the new ruling to Canada’s highest court and believes doing so would be “another Hail Mary pass” that would “erode” relations between the provincial government and the English-speaking community.
“This is now, on Bill 40, the fourth sweeping victory that we got … so the government has lost on every single point, in every single argument, in every single instance of the Quebec courts, over and over and over again,” he said.
“It’s time to put that aside, accept that they lost, accept that we have section 23 rights. They need to accept that they have constitutional obligations to the English-speaking community when it comes to education, and that’s the only way that we can move forward.”
‘Historic decision’
Other groups representing the anglophone community applauded the Court of Appeal judgment, including the English Parents’ Committee Association (EPCA), which called it a “historic victory.”
“The Court’s decision is a powerful reminder that our voices matter, and our right to govern our schools is non-negotiable,” said EPCA President Katherine Korakakis in a statement.
The Quebec Community Groups Network (QCGN), which was granted intervener status in the Court of Appeal case, was also pleased in the ruling that it says reaffirms that the Charter gives English-speakers in Quebec the right to manage and govern their own school boards.
“At the heart of our submission was the principle that although Section 23 grants rights to individuals, those rights are inherently collective in nature,” said QCGN Director-General Sylvia Martin-Laforge in a statement.
“That means individuals can only meaningfully exercise their rights to manage and control education by participating in communal structures, such as school boards. We are gratified to see the Court accept that argument so wholeheartedly.”
