School Law under the Charter of Rights and Freedoms 2nd ed

Henri R. Pallard is a professor of law and justice at Laurentian
University.

This book is addressed to teachers, parents, trustees, and school
administrators who want to know how school law has changed since the
Canadian Charter of Rights came into effect. The authors begin with a
brief explanation of the rule of law, Canada’s legal system, the role
of the judiciary, and the nature of the court system. Five other
chapters look at issues touching on students’ rights (freedom of
speech, expression, and association; personal appearance; and equality);
criminal law and the student (search and seizure and the Young Offenders
Act); minority language rights; religion in public schools; and
teacher’s rights.

Because the Charter has only recently come into effect (1982), there is
very little and often no Canadian jurisprudence on many of the points
discussed by the authors. The Hurlberts have chosen to refer to American
cases in order to provide “some idea (from a legal perspective) of
what factors are important in their (the courts’) decisions.”
However, they completely ignore what the Supreme Court of Canada has
explicitly stated: the Charter must be interpreted in a Canadian
context. Thus, the courts will look at how all other codifications of
human rights (for example, the United Nations Universal Declaration of
Human Rights and the European Human Rights Code—not simply the
American Bill of Rights—have been interpreted. Of the 285 cases cited
by the authors, 134 (47 percent) are American, 6 (2 percent) are
British, and 145 (51 percent) are Canadian. No jurisprudence is cited
from other jurisdictions with human-rights codes.

The manner in which the American case law is written into the book also
leaves much to be desired. For example, in dealing with the issue of
search and seizure, there are more than 10 pages on American case law
followed by less than two pages on Canadian case law. No attempt is made
to discuss whether and why the considerations at play in the American
cases would be germane to Canada.

The nature of the authors’ comments, their broad use of American
cases, and the lack of reference to cases from other jurisdictions will
lead the legal novice to think that future Canadian decisions will
closely follow the reasoning in the American cases, when such is not
necessarily the case.