The Quebec government did not violate the charter rights of parents by limiting the number of children who can access online learning during the pandemic, the Quebec Superior Court ruled Monday.
A group of Montreal parents had brought a lawsuit against the government in August after it issued a rule stating that only children who qualify for a medical exemption will be allowed to follow their classes from home.
The parents argued the criteria for an exemption were so narrow that the government was effectively forcing them to send their children into an environment made unsafe by COVID-19.
That was a violation of their rights to life, liberty and security, they said, under Section 7 of the Charter of Rights and Freedoms
In their arguments before the court, the parents held out Ontario's example, where there are no restrictions on who can access online learning.
They also submitted an expert report that suggested school children are contributing to infections among adults, though lawyers for the government challenged the report's validity.
In handing down her ruling, Superior Court Justice Chantal Chatelain dodged taking a position on the scientific debate about how much transmission occurs in schools.
Instead, she said the rule about who can access online learning cannot amount to a rights violation, because it wasn't the rule passed in August that is forcing parents to send their children to school.
It is the province's Education Act, passed in 1988, that makes attendance mandatory. And that had gone unchallenged in the lawsuit.
"This distinction is crucial, and fatal, to the claims of the plaintiffs," Chatelain wrote in her 50-page ruling.
Chatelain also noted that parents who oppose sending their children to school can always choose to home school them instead.
That alternative, she said, undermines the argument, put forward by the parents, that they are being forced to do something against their wishes.
The parents also tried arguing that the criteria needed to qualify for an exemption were arbitrary and overly narrow.
Not so, countered the judge, who said the rule leaves it up to a doctor's discretion to decide whether there are medical reasons for keeping a child home.
"It's a very disappointing decision because it didn't deal with the essence of individual autonomy, which is what Section 7 is about," said Julius Grey, the well-known constitutional lawyer who represented the parents.
Grey also said he believed the judge was flat-out wrong in her understanding of how medical exemptions have been handed out. A decision about whether to appeal will be made in the days to come, he said.
Home schooling to avoid the stress
A spokesperson for Quebec's education minister declined to comment on the decision.
Since schools reopened in September, Quebec has progressively increased safety measures in classrooms, including requiring masks more widely and limiting in-person attendance in older grades.
These additional measures, though, have often been implemented following pressure from independent experts and opposition parties.
In recent weeks, critics have been pushing the government to allow more schools to install air purifiers in classrooms. Quebec has been resistant to the idea, saying they could pose a safety risk if improperly installed.
One of the plaintiffs, Politimi Karounis, pulled her three children from school in September and has been home schooling them ever since.
"We may be tired but one thing we don't have is that stress of wondering every day is this going to be the day when one of our kids is going to bring COVID home," Karounis said.
"Thousands of parents weren't able to make the choice we did. And they are worried. And they shouldn't have to be."
More than 1,600 schools — about half the schools in the province — have seen at least one case of COVID-19 since January 5.