The Role of Courts in Education

AuthorShirley Van Nuland
The Role of Courts in Education
Shirley Van Nuland
The Cons titution Act, 1867 a ords education i n Canada spe cial stat us
through sec tion 93, which outlines that t he provinces are a ssigned legis-
lative authorit y in all education mat ters. Specically,
In and for each P rovince the Legisl ature may exclusively m ake Laws in
relation to Educ ation, subject and a ccording to the fol lowing Provi sions:
(1) Nothing i n any such Law shal l prejudicially a ect any Right or Pr iv-
ilege with re spect to Denom ination al Schools wh ich any Cla ss of
Persons have by L aw in the Provinc e at the Union . . . .1
Provinces h ave authority to make laws th at relate to education subject to
certai n safeguards for denomin ational schools. The one exception to t he
federal govern ment not interfer ing in educat ional matte rs is the power
that it has over educ ation of Aborigina l peoples, that is, “per sons governed
by the Indian Act a nd Federal agreements w ith Bands or Band Counci ls.”2
In 1982, the Canadian Charter of Rights and Freedom s was entrenched in
the C onstitution Act, 1982.3 As a key element of the Constitut ion Act, 1982,
the Charte r is supreme as the l aw in Canada. All law or legi slation is to be
consistent wit h the provisions of the Constitution A ct, 1982; if not, the law
1 Constitutio n Act, 1867 (UK), 30 & 31 Vic t, c 3, s 93 (distri bution of legislat ive pow-
ers), re printed in RSC 1985, Ap p II, No 5.
2 Anthony Brown & Mar vin Zuker, Education Law, 4th ed ( Toronto: Thomson Car-
swell, 2007) at 3.
3 Part I of the Constitution Act, 1982, being Sch edule B to the Canada Ac t 1982 (UK),
1982, c 11 [Charter].
60 / Shirley Van Nuland
or legislation ha s no force or eect.4 The Charte r has established the r ights
and freedoms f or all Canadia ns regardless of residence. A s the courts hear
cases that i nvolve the impact of the Charte r, the provinces are forced to ad-
just their leg islation to comply wit h the standards of the Char ter as inter-
preted by the cour ts. Charter-based is sues that come before t he courts i n
Newfoundl and and Labrador now have an impa ct on schools in Manitoba
or British Columbia. To avoid chal lenges in their own cou rts, all prov inces
need to be attentive to o ther jurisdict ions.
Education in Can ada is dire cted also by a plet hora of rules foun d in
statutes and r egulations that g rant and impose a formida ble collection of
powers and duties to t hose involved with it. Most ofte n, these statutes a nd
regulation s are located in prov incial e ducation acts and their attend ant
regulation s that govern the obligations of sc hools and school boards, the
duties of teachers and pr incipals, t he responsibil ities of the mi nister of
education, the f unding of scho ols, and so on. Fur ther stat utes and regu-
lations dir ecting res ponsibilit ies of educators and applyi ng to others out-
side the realm of education include, but are not l imited to, the Cr iminal
Code, collective barga ining leg islation, hum an right s codes, the You th
Criminal Justice Act, the C hild and Family Services Act, the Cop yright Ac t, and
the Municipal Freedom of Information and P rotection of Privacy Act.
As with educat ion, each province is respon sible for organizing a nd admin-
istering a spects of its own judici al system5 subject to sec tions 91 and 92 of
the Cons titution Act, 1867. Al l Canadian jurisd ictions, wit h the exception
of Nunavut, have t hree levels of cou rt. Nunavut has Canad a’s rst, and
only, single-level court i n which judges may hea r any typ e of case. The
remainder of t he country’s judicial le vels are explained a s follows:
4 Constitution Act, 1982, s 52(1), being Schedule B to the Can ada Act 1982 (UK), 1982, c 11.
5 Information on t he provincia l/territoria l courts for ea ch jurisdic tion may be
found at the fol lowing sites: A lberta (htt ps://alberta, Briti sh Columbia
(www.court, Manitoba (ww w.manitobacour, New Bruns-
wick (ww, Newfou ndland and La brador (www.cour t., Northwes t Territories (ww, Nova S cotia (www.cour ts., Nunavut (w ww.nunavutcou, Ontar io (www.ontarioc,
Prince Edw ard Island (w, Québec (ww
mjq_en), Sa skatchewan (w ww.sasklawc, and Yukon (w ww.yukoncourt s.
ca). Websites are cur rent as of 27 May 2016.

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