Distance Learning and the Quebec Karounis Decision
Mtre Sylvio Di Cristofano & Mtre Ramjah Thangarajah, Avocat | Attorney – Phillips Freidman Kotler S.E.N.C.R.L./LLP
The mission of a school is simple: impart knowledge, foster social development, and provide children the qualifications necessary to be meaningful participants in society. In Quebec, every child between ages 6 and 16 are subject to compulsory school attendance under the Education Act (the “Act”) unless otherwise exempt for reasons expressly provided therein. For example, a student would be exempt from attending school in person if that child suffered from an illness or needed to receive medical treatments.
In or around March 2020, all governments, domestic and foreign, did what was needful to protect the public given the emergence of a novel coronavirus. Quebec was no different and no facet of government was spared including the education system which falls within its jurisdictional purview. As such, compulsory attendance and all educational services were suspended by the government following the announcement of the COVID-19 pandemic.
In accordance with its plans to ensure students return to school, in August 2020 the Quebec government adopted a decree (the “Decree”) which lifted the suspension of education services and reinstated in-person school attendance. To protect the vulnerable, the Decree provided an exemption to in-person attendance if the health condition of the student, or that of a person with whom he or she resides, put them at risk of serious complications if they contracted COVID-19. To qualify, the student would require a physician’s note recommending (“Medical Recommendation”) the student not be required to attend school in-person. If a student qualified for the exemption, he or she would be entitled to receive educational services at a distance. Some months’ later, the Decree was further modified by expanding the exemption to students who were in classrooms under an isolation order by public health authorities due to a classroom outbreak of COVID-19.
Karounis c. Procureur Général du Québec
The plaintiffs in Karounis c. Procureur Général du Québec sought to attack the constitutionality of the exemption that only those students with medical conditions, or those with whom they reside, would be exempt from in-person attendance. They argued that any parent or child should be afforded the right, should they desire, to receive their educational instruction at a distance in light of the pandemic and adverse health effects it may have on them. The plaintiffs argued that the circumscribed exemption provided in the Decree violated their right to life, liberty and security under section 1 of the Quebec Charter of Human Rights and Freedoms (the “Quebec Charter”) and section 7 of the Canadian Charter of Human Rights and Freedoms (the “Canadian Charter”).
The issue in dispute was whether the requirement to obtain a Medical Recommendation to qualify for the exemption to in-person school attendance was a violation of a person’s right to life, liberty and security and, if it was, whether it was reasonable under the circumstances.
The plaintiffs’ main argument in support of their position was that by not expanding the exemption to all parents, parents who did not qualify for the exemption would be required to send their children to school thereby increasing their risk of contracting and spreading COVID-19. Although sympathetic, the Court did not support this argument for various reasons. First, the object and effect of the Decree and its exemption was not to force parents to send their children to school since the very obligation had already been in existence in virtue of the Education Act. Second, that parents have always had the choice of homeschooling their child rather than traditional in-school attendance.
The second argument posited by the plaintiffs was that their constitutional rights were at stake given the Medical Recommendation requirement. They argued that it was necessary to declare that all children be entitled to distance learning at the request of their parents without having to go through the process of obtaining a physician’s note. Again, the Court did not support this argument as it did not violate the parents’ constitutionally guaranteed rights to life, liberty and security adding further that it was not unusual for the government to require medical evaluations and/or recommendations for eligibility to various other services such as, for example, license renewals with the SAAQ.
Impact of the decision on distance learning
The Court stated that the exemption contained in the Decree served to promote the very mission of a school; that is, ensure that as many students as possible receive a face-to-face education to impart knowledge to students, foster their social development and give them qualifications in accordance with the principle of equal opportunity. In support of this position, the Court referred to the evidence produced by the government to establish the importance and urgency of prioritizing in-person school attendance. The government had produced various expert opinions and studies in support of this position. Based on this evidence, the Court found that receiving education exclusively from a distance had the effect of exacerbating social inequities and caused various other deleterious effects on children including, that, non-attendance would render it more difficult to detect situations of abuse at home.
The Court also went on to describe the constraints associated with distance learning such as internet accessibility, lack of socialization and so on. Furthermore, in the Court’s view, not only is distance learning not comparable to in-person learning, but there is also no evidence to suggest that distance learning would provide for better quality education over homeschooling. The Court agreed with the government that shortages in teaching personnel and limited technological resources available to schools make it impossible to implement distance educational services to all parents who request it.
The Court ultimately concluded that by offering distance educational services only to children who have been given a Medical Recommendation not to attend school in person, the government was ensuring that the school’s mission is respected. The Court found that the exemptions to in-person learning provided in the Decree did not infringe on the plaintiffs’ constitutional rights.
This decision may have broader implications for education in Quebec, in general, and for all those in support of distance learning, more specifically. It will likely serve well those lawmakers in support of in-person school attendance since the Court generally agreed with the evidence produced by the Quebec government to argue that the benefits of in-person attendance outweigh the COVID-19 health risks associated therewith.