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Education as a Basic Human Right: A Response to Special Education and the Charter

Published online by Cambridge University Press:  18 July 2014

A. Wayne MacKay  and
Gordon Krinke
A. Wayne MacKay
Affiliation:
Faculty of Law, Dalhousie University
Gordon Krinke
Affiliation:
Faculty of Law, Dalhousie University
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Extract

“Special Education and the Charter: The Right to Equal Benefit of the Law” is an excellent article on the provincial statutory regimes and their relationship to s. 15 of the Charter. It surveys the legislatures' attempts at delivering education to students and highlights the shortcomings in these attempts, focussing on the inability or unwillingness of the legislatures to provide an appropriate education to mentally disabled individuals. The article then takes a prospective approach, illustrating how a generous interpretation of s. 15 of the Charter might be used to correct deficiencies in educational statutes. Both the survey of statute law and the commentary on its relationship to the equality provisions of the Charter provide a valuable addition to scholarly writing on the provision of appropriate education to the mentally disabled.

However, there is some danger in assuming that the right to education derives solely from statute. Statutes are creations of legislatures. If the right to education exists only in these statutes, education may be viewed not as the right of every child, but as a privilege bestowed by the legislature, to be determined by administrators, and to be overseen only as a last resort by the courts.

Type
Research Article
Information
Canadian Journal of Law and Society / La Revue Canadienne Droit et Société , Volume 2 , 1987 , pp. 73 - 95
Copyright
Copyright © Canadian Law and Society Association 1987

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References

Notes

1. Elwood v. Halifax County-Bedford District School Board (1987) settlement approved by court order, N.S.S.C.T.D., June 1, 1987.

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12. Board of Education, Island Trees v. Pico, 457 U.S. 853 (1982).

13. Acknowledged by LaForest, J. in R. v. Jones, [1986] 2 S.C.R. 284, 296.

14. There are private schools and individual exceptions to state dominated education but there is no doubt that the State has become the major actor on the educational scene.

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30. Most reject comments such as Sir J. Donaldston, a judge, gave to a High Court Journalists' Dinner (as quoted in The Times, November 24, 1972) that: “My attitude toward political life is much the same as that of a monk towards sex, nostalgic memories of youthful indiscretion, a frank acknowledgement of its attractions and an unshakable conviction that I could do better than those currently engaged in it.”

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35. Pre-hearing submission by the Halifax County-Bedford School Board, 13.

36. There is strong language to this effect in both the majority judgment of La Forest J. and the dissenting one of Wilson, J., in R. v. Jones [1987] 2 S.C.R. 284.

37. Constitution Act, 1982 Schedule B of Canada Act (U.K.) 1982, c. 11, s. 52.

38. R. v. Oakes, [1986] 1 S.C.R. 103 at 136.

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41. San Antonio Independent School District v. Rodrigues, 411 U.S. 1 (1973).

42. However, see Cameron, J., “The Relevance of American Constitutional Law in Charter Adjudication,” a paper presented at the Charter Litigation Symposium, University of Toronto, February 28, 1987Google Scholar. Professor Cameron notes, p. 12, that “A parallel exists in the second clause of Article VI of the U.S. Constitution … which has been thought by some to perform just that function.”

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45. MacKay, “The Charter of Rights and Special Education.”

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50. Ibid., 295.

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56. Ibid., 318.

57. Ibid., 318.

58. For a more restrictive interpretation of s. 7 substantive rights, see R. v. Neale (1986), 28 C.C.C. (3d) 345 (Alta. C.A.), quoting Tarnopolsky, and Beaudoin, , Canadian Charter of Rights and Freedoms Commentary (Toronto: The Carswell Company Ltd., 1982), 270Google Scholar. In Jones, at 317, Wilson J. comments that Tarnopolsky and Beaudoin's definition of liberty is “… much too niggardly…”.

59. E(Mrs.) v. Eve, [1986] 2 S.C.R. 388.

60. Ibid., 427.

61. Ibid., 434.

62. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), 493.

63. U.N.G/A Res. 2200A (XXI), December 16, 1966, Article 13.

64. Education Act R.S.N.S. 1967, c. 81, s. 74(a).

65. R.S.N.S. 1967, c. 81, s. 74(f)Google Scholar. In Ontario, the Education Act, R.S.O. 1980, c. 129, s. 235(1)(c) adds to this list “loyalty,” “benevolence,” “sobriety,” “frugality,” and “purity.”

66. Brown v. Board of Education of Topeka, 493, as quoted in R. v. Jones [1986] 2 S.C.R. 284 at 297.

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68. Ibid., 181.

69. Carriere v. Lamont Board of Education, unreported decision of the Alta. Q.B. August 15, 1978.

70. Wang, M.C., “Mainstreaming Exceptional Children: Some Instructional Design and Implementation Considerations,” Elementary School Journal 81 (1981), 196CrossRefGoogle Scholar.

71. Zigler, E. and Hall, N., “Mainstreaming and the Philosophy of Normalization,” in Meisel, C.J. (ed.), Mainstreaming Handicapped Children: Outcomes, Controversies and New Directions (Hillsdale, N.J.: Lawrence Erlbaum Associates, 1986), 1Google Scholar.

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73. See, for example, Board of Education of Hendrick Hudson School District v. Rowley, 458 U.S. 176 (1982); Toplianette By Toplianette v. Cronin, 443 N.E. (2d) 29 (1986); Mork v. Grant Wood Area Education Society, 795 F (2d) 52 (1986).

74. M. Forest and E. Lusthaus, “The Kaleidoscope: Challenge to the Cascade.” Forthcoming.

75. The use of an interlocutory mandatory injunction, granted by Glube, C.J.T.D., on October 31, 1986, is, in itself, an important legal precedent.

76. Reference Re s. 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486Google Scholar.

77. This argument was accepted in Rowett v. The Board of Education for the Region of York (1986), unreported, a decision of the Central Region (English) Special Education Tribunal, 48.

78. See, for example, the decision in Hickling v. The Lanark, Leeds and Grenville County Roman Catholic School Board (1986), quoting from Stainback, et al. , “Facilitating Mainstreaming by Modifying the Mainstream,” Exceptional Children 52 (1983), 144CrossRefGoogle Scholar.

79. E (Mrs.) v. Eve [1986] 2 S.C.R. 427.

80. Zigler, and Hall, , “Mainstreaming and the Philosophy of Normalization,” in Meisel, C.J. (ed.); Mainstreaming Handicapped Children (Hillsdale, N.J.: L. Erlbaum Assoc., 1986) 1Google Scholar. See, for example, Reference Re K, K v. Public Trustee (1985), 63 B.C.L.R. 145 (C.A.). At 169, Anderson, J.A. states: “… the proceedings [to determine if a mentally disabled child should be sterilized] while adversarial in nature for the purpose of ascertaining the truth … do not constitute a trial in the ordinary sense of that word. This is not a dispute between parties but an inquiry conducted for the purpose of determining what course should be taken in the best interests of Infant K and others like her.”

81. Bales v. School District 23 (Central Okanagan) (1984), 54 B.C.L.R. 203 (S.C.)

82. This tribunal deciison did not consider the Charter. However, the decision is to be reviewed in the courts and the Charter will be a central issue.

83. Burgdorf, M. and Burgdorf, R., “Unequal Treatment of Handicapped Persons by Public Education System,” in Burgdorf, R. (ed.), The Legal Rights of Handicapped Persons (Baltimore: Paul H. Brookes Publishers, 1980), 90Google Scholar.