Parents in Quebec court today to fight for wider access to online learning

Quebec Superior Court Justice Frédéric Bachand listened to lawyer Julius Grey argue this morning in favour of an injunction that would allow parents to keep their children home from school and learning remotely, even if they don't qualify for a medical exemption.

In Quebec, unlike in Ontario this year, school attendance is mandatory. The province has established narrow criteria for who is qualified for an exemption to the rule and can receive distance learning. A group of parents is hoping to convince the judge to order the province to loosen those rules today.

If granted, the injunction would likely be in place until a court can rule on their associated lawsuit, which argues Quebec is violating the charter rights of parents by forcing them to send their children to school despite the risks of the pandemic.

"It's clearly something that is irreparable and harmful and needs to be decided right away," Grey told the judge, highlighting the urgency of the matter given that school started in the province last week.

He argued that the guidelines allowing for a medical exemption issued by the government are not precise when it comes to family members who could possibly be affected should a child return to school.

For instance, Grey said, a parent whose child attends school but also visits their 95-year-old mother once a week would not qualify for a medical exemption, despite the risks involved.

He also cited two key Supreme Court cases — R. v. Morgentaler and Carter v. Canada — that establish medical decisions as inherently individual decisions in support of his argument.

The Morgentaler case struck down the ban on abortion, concluding that the decision ultimately lies with the woman. The Carter case stated that mentally competent adults could make the decision to seek assisted death, should they have a grievous and irremediable medical condition.

A lawyer with Quebec's attorney general, Stéphanie Garon, argued against the injunction, saying the government had taken adequate precautions and the distance-learning measures adopted in the spring were a temporary measure.

"The return-to-school protocol announced by the government was robust," she said, noting it included the wearing of masks, frequent hand-washing and more.

Garon also said the quality of learning for the most vulnerable students will suffer if the injunction is granted.

Quebec Premier François Legault pointed to the province's shortage of teachers when asked about the case in a news conference Thursday.

"We cannot at the same time have teachers teaching in classrooms, and the same teachers teaching the children who decided to stay at home. You cannot have both," he said.

"We're seeing more and more interest in this legal challenge to open up the remote option for any family who wants it," said Sarah Gibson, one of the plaintiffs in the lawsuit. "A lot of people are really watching what happens here."

Parents also have the option of home-schooling their children, which does not require an exemption.

"If [they] present a risk for health, of course we will help those kids to learn at home with the help of teachers and support staff,'' Education Minister Jean-François Roberge said last month.

"But if the kids don't have some sickness related to COVID-19, the best place is to go to school, of course."

A spokesperson for the Lester B. Pearson School Board said it has received hundreds of requests from parents asking for a medical exemption and more are arriving every day. According to the spokesperson, they have approved close to 400 requests for a medical exemption.

Parents in limbo

Some other parents whose children don't qualify for the exemption have opted to keep them at home anyway.

Sara Varano, a Montreal mom of three, said she's been reporting her two sons, six and 11, absent from school since classes started.

"We're throwing 25, 30 kids together in a poorly ventilated classroom, where it's going to be very difficult to maintain physical distancing, where they won't be wearing masks and they'll be spending five or six hours of their day closed up in that environment," she said.

Alexis Richards and her 10-year-old daughter, Autumn, are in a similar situation.

"I want to go to school to see my friends, but I know that it's a risk to my health," said Autumn, who has Type 1 diabetes.

She doesn't qualify for distance learning, but her mom said she doesn't want to take that gamble, and has asked the school board to make an exception.