The Couillard government's controversial legislation to end school board elections, Bill 86, could face a legal challenge if it's passed.

The proposed legislation may violate the constitutional rights of English-speaking Quebecers, says Michel Doucet – an expert on minority language rights.

"There might be some problems on the way the people will be appointed to this new governance structure," said Doucet, a law professor and director of the International Observatory on Language Rights at the Université de Moncton.

If passed, Bill 86 would abolish school board elections and councils of commissioners.

Elected councils of school commissioners would be replaced by new school councils made up of parent representatives, staff members and community members.

Council members would be selected in a variety of ways:

  • Parent representatives would be elected by groups of parents.
  • Staff members would be appointed.
  • Community members would be either elected or appointed, depending on the will of the parents' committee on each school board.

Doucet says this selection process may violate the constitutional rights of those in Quebec's English-speaking community who may not have children in the school system. 

QUEBEC QUESTIONS 20160211

Quebec Premier Philippe Couillard is pushing ahead with legislation to end school board elections despite widespread opposition from Quebec's English-language school boards. (Jacques Boissinot/Canadian Press)

Anglo rights enshrined in Charter

The Supreme Court of Canada has ruled that English-speaking Quebecers have special rights to manage and control their schools under section 23 of the Charter of Rights and Freedoms.

Doucet says those right-holders include not only parents, but also anglophone Quebecers without children in the system.

"There is a little gap there between what is in (Bill 86) and what should be done to respect section 23 (of the Charter)," said Doucet.

In a nod to the anglophone community and its voter participation rates, which are much higher than the provincial average, Bill 86 includes a provision for the election of the community members on the board – but only if the board's parents committee agrees.

However, Doucet does not believe that provision goes far enough to satisfy the government's constitutional obligations to English-speaking citizens.

"In this case, there still could be a challenge: the parents saying the minister has kept too much power on how this structure would be functioning and how the people would be elected," Doucet said.

Unlikely ally in PKP

Doucet's interpretation of Bill 86 echoes legal concerns raised by others when the bill was first introduced last year.

Some groups representing anglophone Quebecers said it violates their constitutional rights as a minority language group and attacks anglophones' rights to manage and control their own schools.

Those groups have found an unlikely ally in the Parti Québécois.

In January, PQ Leader Pierre Karl Péladeau said he was "flabbergasted" by what he called a lack of consultation with English-speaking Quebecers.

"If they want to reform school board governance, they must respect the anglophone community's rights," he said.

Hearings start Tuesday

Legislative hearings into the bill get underway Tuesday, with more than fifty groups and individuals signed up to present their position on the controversial bill.

There have been a few hiccups along the way in the organization of these hearings.

The province's two largest English- and French-language school boards were at first refused slots on the agenda, although the government eventually bowed to public pressure and added them to the list of presenters.

Then, the hearings had to be postponed due to last month's cabinet shuffle. A new education minister, Pierre Moreau, replaced the unpopular François Blais.

Moreau, however, was taken away by ambulance minutes before the cabinet swearing-in ceremony.

Premier Philippe Couillard said Moreau had contracted a virus.

Moreau will return to the National Assembly in time for the start of hearings, for the first time since his illness.

A spokesperson for the minister says it will be a "progressive" return to work.

All people who are already scheduled to present their response to Bill 86 have been confirmed, with more hearings to be scheduled at a later date, depending on the state of the minister's health.