The Right to an Education

Charles Ungerleider, Professor Emeritus, The University of British Columbia

[permission to reproduce granted if authorship is acknowledged]

 Schooling in Canada is so ubiquitous that we take for granted the right to an education. But a friend and colleague inclined to skepticism, asked whether a provincial premier might simply declare that the province would no longer provide an education to those whom we typically regard as having a right to education. I replied that such a declaration would be unlikely since the right to an education is firmly established in law and custom. He asked for proof for my assertion.

My immediate response was to refer him to section 93 of the Constitution Act which confers on provincial legislatures law-making power in relation to education subject to specific conditions. I also referred to section 23 of the Charter which confers on English-speaking and French-speaking citizens the right to have their children receive primary and secondary school instruction in their first language, subject to specific conditions.

He conceded that a premier could not unilaterally deny education to children and youth of school age, but a provincial legislature could. “Not easily,” I replied, since most acts governing education in the provinces and territories contain provisions entitling children and youth to an education. I used, as an example, section 2 of the School Act in British Columbia. It reads in part that, subject to specific conditions, “a person is entitled to enrol in an education program provided by the board of a school district . . ..” (emphasis supplied).

Further evidence that provinces and territories have a duty to fulfill the entitlement to an educational program is found in the definition of “school age.” In British Columbia, for example, that entitlement extends to the end of the school year in which the individual turns16 years of age.

While it might be feasible for a provincial legislature to rescind the legislation establishing an entitlement to an education, such an action would engender widespread outrage because the provision of education is customary. I pointed to article 26 of the Universal Declaration of Human Rights (UDHR). It declares that “everyone has the right to education.” The UDHR speaks about the provision of free elementary level. Canada is a signatory to the UDHR.

Canada is also a signatory to or has submitted to other international covenants and treaties obligating states to provide education. Making primary education compulsory and free is seen as a means of ensuring the rights of the child to education in the Convention on the Rights of the Child (CRC). The CRC specifies the purposes to which an education shall be directed. Among them is “the preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin.”

The notion that preparation for “responsible life in a free society” is a central purpose of education in Canada is codified in provincial legislation and regulation. As I have argued elsewhere, school or education acts and related policies make clear that education is instrumental in developing the knowledge, values, and behaviours that citizens need to maintain a socially cohesive and productive society.

My friend was not completely convinced. “Rights and international agreements are contested all the time,” he asserted. I did not disagree. I pointed out, however, that in Moore v. British Columbia, the Supreme Court of Canada reasoned that, in asserting that the purpose of education is to ensure that “all learners . . . develop their individual potential and . . . acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society and a prosperous and sustainable economy,” the Province of British Columbia had acknowledged that children are entitled to an education necessary to make such a contribution. Access to special education, the court reasoned, “. . . is the ramp that provides access to the statutory commitment to education made to all children in British Columbia” and “not a disposable luxury.”

The duty of a province to provide education under the terms of its school act was also  upheld in McLeod v. Salmon Arm Bd. of Sch. Trustees, making “the interest of the children . . . the paramount consideration in the Public Schools Act.”  In Bales v. Board of School Trustees, School District 23 (Central Okanagan) the Court reasoned that “eligible children have a legal right to an education” and an entitlement to an education that “meets some basic educational standard.”

It is understandable that we would take for granted the universality of elementary and secondary education in Canada. However, we can take comfort in knowing that statutes, international conventions, and court judgments make it difficult, if not impossible, for a provincial premier, provincial legislature, or a school board to deny children their legal right to an education.