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Victory at the Supreme Court of Canada on the Right to Education

 

 

For Immediate Release
November 9, 2012
Toronto, Ontario


Victory at the Supreme Court of Canada on the Right to Education


The Canadian Association for Community Living (CACL) and the BC Association for Community Living (BCACL) applaud the ground-breaking judgment delivered by the Supreme Court of Canada on the right to equal access to education Moore v. British Columbia.  The case began 15 years ago with a complaint to the British Columbia Human Rights Tribunal on behalf of Jeffrey Moore who has significant learning disabilities and at the time was a student receiving special education services.  The complaint alleged discrimination on the basis of disability by the North Vancouver School District and the British Columbia Ministry of Education for the period of June 1992 to June 1995, when the special education services he was receiving were cut and no other alternative was provided.


The complaint was made on the basis that Jeffrey was denied a “service customarily available to the public” under s. 8 of the B.C. Human Rights Code.  As the case made its way through the Tribunal, the B.C. Supreme Court and Court of Appeal, and eventually to the Supreme Court of Canada, it became clear that one of the central issues was the nature of the ‘service’ to which Jeffrey was denied.  If the service was simply special educational services and Jeffrey was treated the same as all other special needs students whose services were cut, as the respondents argued, then the claim of discrimination would not be allowed.  This is precisely the conclusion that the B.C. Supreme Court and Court of Appeal arrived at, against the finding of discrimination found by the B.C. Human Rights Tribunal.

CACL intervened in this case to take a very strong position that the ‘service’ to which Jeffrey was entitled was public education, and the students he should be compared to were all other students who were entitled to general education.  Our view is that special education services should be seen as a support and as a means to enable access to and inclusion in quality public education, to which all citizens are entitled.  Special education is not an end in itself, and Jeffrey’s access to special education should not be compared simply with other students who may require special education services.  Rather, the question must be, are students with disabilities obtaining the supports they require to fully participate and be included in education services like any other students?

The Supreme Court of Canada has agreed with our analysis on the definition of ‘education as a service’ under human rights legislation to which children with disabilities are entitled to equal access.  Speaking on behalf of the Supreme Court of Canada, Justice Rosalie Silberman Abella found, “Adequate special education… is not a dispensable luxury… it is the ramp that provides access to the statutory commitment to education made to all children in British Columbia.”

Laurie Larson, President of the CACL said “Today is a watershed day for access to quality inclusive education in Canada.  The Supreme Court of Canada got it right.  It may be too late for many of our kids who are graduating from school this year and in the past.  But the direction to governments is unequivocal.  Special education in many parts of this country needs radical redesign.”  Michael Bach, Executive Vice-President said, “Special education has been a ‘dead end’ for far too many students with disabilities.  This judgment makes it clear once and for all that children with disabilities are entitled to the educational supports they require to be fully included in school. The real test of special education services is whether they provide the ‘ramp’ to educational services to which all children are entitled.  And, as required under the UN Convention on the Rights of Persons with Disabilities, now ratified by Canada such services must, by definition and by law, be inclusive. All public education must be redesigned to ensure inclusion for all children in Canada.” 

“The Moore family has been courageous in taking up the cause of ensuring all students receive a quality public education.” says Faith Bodnar, Executive Director of the BC Association for Community Living. “The Moores fought for fifteen years knowing that it would not impact their son, doing it on behalf of all students with special needs now and in the future. The public education system must be held accountable for how it meets the needs of students. We join CACL in applauding the decision of the Supreme Court in upholding the fundamental rights of students with special needs to access the supports they need to be fully included.”

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For more information, please contact Michael Bach, Executive Vice-President, Canadian Association for Community Living 416 209 7942

To download the full CACL/BCACL press release please click here

CACL worked with ARCH Disability Law Centre on this intervention, for thier release on this ruling please click here