Physical or Virtual? Quebec court rules who can and can’t learn virtually

The COVID-19 Pandemic has been a prolonged period during which many yearn for a resumption of how society was prior to March 2020. Enforced measures, such as the wearing of face coverings, the closing/reduction of capacity in restaurants and businesses, and even stringent quarantine measures for international travelers have raised questions regarding the compromising of certain civil liberties enshrined in the Canadian Charter of Rights and Freedoms. For those interested in civil liberties, the COVID-19 Pandemic will provide a slough of decisions regarding the constitutionality of certain government measures.

In a decision rendered on February 8th, 2021, a group of six parents were plaintiffs in an audience questioning the constitutionality of the Quebec government’s Order in Council 943-2020, a legislation aiming to resume in-person learning in Quebec in the autumn of 2020. More specifically, the order resumed school attendance as described in the Education Act, with limited exceptions[1]. To be exempt from physically attending schools and benefiting from virtual education, a student or someone they reside with must be at risk for serious health complications if they would contract COVID-19. This risk must be supported by a note from a doctor.

The six plaintiffs each provided an account of why their children ought to be exempted from physically attending school. The main one was a fear that the enforced sanitary measures at schools were not sufficient and would put their children or someone in their household at risk of contracting COVID-19[2]. Thus, the plaintiffs claimed that the Order in Council 943-2020 goes against section 7 of the Canadian Charter of Rights and Freedoms and section 1 of the Quebec Charter of Human Rights and Freedoms. These two legal dispositions are analogous with one another, as they both give the right to life, personal security, and freedom.

So, what did the judge decide and why?

According to the Quebec Superior Court, Order in Council 943-2020 is constitutional, and the exemption on physical presence at school remains for children who are ill or immunocompromised or if they reside with someone who is. Despite the plaintiffs’ fears that the enforced exemption would put them, their children, or anyone in their household at risk, neither the object nor the effects of the Order of Council obliged them to send their children to school[3]. Instead, it is section 14 of the Education Act that makes physical attendance at school obligatory[4].

The plaintiffs insisted that they were not seeking to circumvent the obligation to send their children to school; rather, they were attacking the necessity of receiving a medical recommendation to benefit from virtual schooling[5]. At first glance, especially in the current day and age, attending school can be done physically and virtually; however, the judge saw otherwise. Section 14 of the Education Act declares that “[e]very child resident in Québec shall attend school […]”[6]. School is defined in section 36 of the same act as an “educational institution”[7]. The judge considered that physical attendance at school is mandatory, due to its traditional sense and its designation as an educational institution[8]. Due to the judge’s interpretation of school as being solely a physical institution, the plaintiffs should have chosen to challenge section 14 of the Education Act, rather than the Order in Council 943-2020.

The tribunal agreed that parents are not obliged to send their children to school and risk exposing them to COVID-19. Instead, it explained that every parent may opt for a homeschooling program should they not wish to not send their children to school[9].

As for the required medical note, the tribunal believed that it’s hardly unusual to provide a medical note to receive a government service, in this case, virtual school[10]. Several smaller issues were brought up, including the difficulty of obtaining a doctor’s note, and the definition of a severe illness, however they are hardly worth mentioning, as they were minor nuances added onto the necessity of receiving a medical note to benefit from virtual schooling[11].

It is interesting how the tribunal’s definition of school was limited to the physical presence of children, especially given the technological adjustments and advancements witnessed within the last year. The decision also demonstrates the importance of reading legislation in context. Even though the order in council only had limited exemptions, its purpose was to resume the application of Education Act, and not force children back to school. This constitutional conflict reflects how important it is to target the proper legislation and raises the question of how all of us should define school. Should it be virtual, physical, or hybrid?

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the view of the CCLA or PBSC.

[1] Karounis v. Procureur général du Québec, 2021 QCCS 310, para. 37.

[2] Ibid., paras. 58 to 69.

[3] Ibis., para 101.

[4] Ibid, paras 102 and 104.

[5] Ibid., para 103.

[6] Education Act, CQLR, c I-13.3, s 14.

[7] Ibid., s 36.

[8] Supra 1, para 15 and 16.

[9] Ibid., para 107.

[10] Ibid., para 110.

[11] Ibid., paras 111 and 112.