Relevant Law

Canadian Charter of Rights and Freedoms:

21. The Canadian Charter of rights and freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Education Act, section 234 [edited]:

Every school board shall adapt the educational services provided to exceptional students and students with social maladjustmentís or learning disabilities according to their needs.

Role of attorneys:

The attorneys for each party will present legal arguments in support of their client's position.  Therefore, attorneys for the Hendersons should argue that the Board's actions violated the Charter, and attorneys for the Board must prove that their client acted in conformity with the Charter.  The attorneys must assume the validity of the facts stated herein and concentrate their arguments on whether the decision of the School Board contravenes section 15 of the Charter.  In preparing their arguments, the attorneys should read the questions listed below and try to formulate answers that favours their client.

Role of Judges:

During the hearing, the judges may question the attorneys as to their arguments.  After hearing the arguments, the judges will render a motivated decision.  The decision must address the arguments raised by the attorneys and state why they have been accepted or rejected. There can be a majority decision and a dissenting judgment, if the judges do not agree on the outcome.

Potential arguments

The attorneys may consider the following questions in preparing the arguments they will submit to the Court:

Text in italics is intended for teacher's use only.

Did the School Board make a distinction between Jill and other students?

Even though the Board's actions seem to be mandated by the Education Act, it seems clear that the Board made a distinction between Jill and regular students.

Does any such distinction automatically constitute discrimination?

On the one hand, it could be argued that a distinction founded on one of the ground mentioned in section 15 of the Charter automatically constitutes discrimination.  On the other hand, one could say that such a distinction is not per se discriminatory and that discrimination involves proof of a burden which is imposed because of that distinction.

Must all students be treated in the same manner, even though they have different mental capacities?

This involves the distinction between formal equality (all persons should be treated the same) an material equality (different people should be treated differently).  The question then arises what differential treatment is justified in view of  Jillís disability.

Is the distinction discriminatory even though the School Board is of the view that it was made in Jill's best interests"

Again, one may argue that there is no discrimination where there is no burden imposed on the alleged victim.  Conversely, one may also argue that there is an absolute right to attend regular class, whatever the opinion of the School Board may be.

Who is best placed to ascertain Jill's interests?  Her parents ? The School Board?  The Courts?

Decisions regarding the education of children are normally made by their parents.  However, their discretion in this regard is not unfettered.  In a recent case, the Supreme Court granted considerable leeway to School Boards in making determinations with respect to exceptional students.  It could also be said that Jill's opinion should, impossible, be ascertained.

Would the lack of financial resources be an excuse to the decision of the School Board?

This raises the question whether financial constraints may constitute a reasonable justification in a free and democratic society, according to section I of the Charter.

 Would the preferences of the other students in the regular class be a relevant factor?

The Supreme Court held that personal preferences founded on prejudice against certain categories of persons do not constitute an excuse to discrimination.