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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
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
References
Notes
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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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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.
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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.”
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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.
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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.
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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.