De facto segregation appealed natural and proper because of the numerous examples of legally sanctioned state-approved discrimination.
SEGREGATION AND THE EDUCATION ACT
Education for children with mental handicap has been, and continues to be, a disturbing combination of both forms of segregation. In some provinces, school acts made specific provisions for children with mental handicaps to he educated in “special” schools and classrooms (de jure). In other places the practice and policies of school boards has been to treat children with disabilities as “special” and in need of a separate educational program outside the regular classroom (de facto). However, the Charter and human rights legislation have provided parents with powerful new weapons in the fight they wage daily on behalf of their children to gain access to an equal education.
The First Legal Challenges
In the first case to challenge segregated education, Mr. and Mrs. Balm of British Columbia, on behalf of their son Arron, claimed that their school board had failed to fulfil their educational duty of care when it exercised its statutory power to decide to place the child in a segregated, self-contained, special school on the basis that the child had a mental handicap. The Bales v. Central Okangan Board of School Trustees case was framed in negligence because it took place before the equality rights provision of Charter came into force.
The trial judge held that the School Act did impose a duty on the school board to provide sufficient school accommodation and tuition, free of charge, to all children of school age. However, while the judge was sympathetic to the evidence that integration was becoming the norm, he followed the judidal tradition of legally sanctioning segegation. It is notable that this decision came prior to the existence of any constitutional protections in Canada.
