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Privative clauses in special education legislative schemes: are they constitutional under the Canadian Charter?

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Abstract:

This paper suggests that privative clauses in the enabling statutes (Education Acts) governing provincially appointed special education appeal tribunals (SET) are unconstitutional under the Canadian Charter of Rights and Freedoms. It is suggested that 'final and binding' SET decisions about children's designation as special needs and their educational placement infringe upon the Charter rights of both parent and exceptional child. The standard for judicial review of SET decisions, given a privative clause, is whether the decision is 'patently unreasonable' while 'correctness', according to case law, is the appropriate standard when finally determining fundamental rights. Parents of exceptional children in practice have recourse to the courts regarding only procedural rather than substantive issues regarding SET decisions due to the high deference the courts afford any administrat ive tribunal protected by a privative clause. The very high judicial review standard of 'patently unreasonable' rather than 'correctness' is not consistent, furthermore, with the child's 'best interests' or in meeting international obligations to disabled children under the Convention on the Rights of the Child.

Document Type: Research Article

DOI: http://dx.doi.org/10.1080/0953996032000164715

Affiliations: Associate Professor, Faculty of Education, Lakehead University 955 Oliver Road, ThunderBay, Ontario, Canada P7B 5E1

Publication date: March 1, 2003

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