Is McGill already not expensive enough? For many, the Coalition Avenir Québec (CAQ)’s announcement of a tuition hike and the requirement of French language proficiency is a definitive sign of the increasing precarity of higher education. Potential out-of-province students will simply be priced out of attending university in Quebec. This policy change spurs an important discussion of whether students’ educational rights are properly protected. Canadian leaders must put mechanisms in place to prevent further barriers to higher education, including an expansion of positive rights in the Charter to ensure the protection of educational rights.
Canada has two types of rights preserved in its laws—both provincially and federally—negative and positive rights. Negative rights limit what other people or entities can do to an individual. Freedom of speech, for instance, is a negative right. In Canada, most rights fall under this category. Conversely, positive rights are those that provide entitlements to a good, service, or treatment. For Canadians, the most prominent positive right is the public provision of healthcare. Generally, positive rights compel governments to provide for their citizens and, accordingly, the state disregards them as being too onerous. The Canadian Charter does not include any positive rights, meaning it unfortunately omits education, leaving a glaring omission in the most important and protected piece of Canadian law.
Post-secondary education is one of the most determining factors of social mobility, and requires greater action for its constitutional protection. The inclusion of positive rights in the charter would drastically improve access to education. Currently, the Universal Declaration of Human Rights states that higher education should be equally accessible to all on the basis of merit. Despite Canada being a signatory to several international instruments affirming the right to education and thereby agreeing to uphold this right, equal access is not a reality. Instead, the dawn of the neoliberal age in Canada—beginning with the interest rate shock of the 1980s and spurred on by Brian Mulroney’s emphasis on the importance of free-trade—has led to slashed funding for all types of education. Further, because education is a matter of provincial jurisdiction, there are varying and significant differences in tuition costs and access to financial aid across the country.
The recent CAQ proposal is a targeted attempt to reallocate funding from English universities to French universities. These measures shift the burden instead of adequately funding the entire public university system. As a result, funding tertiary education has become the responsibility of students and their families. Therefore, whether one can access a university education is determined by access to money. Creating economic barriers to higher education inherently stratifies opportunity, making education a pervasive symbol of increasing class inequality.
Ideally making post-secondary education a positive right in the charter would be easy, however, the practicality of doing so is slightly more complex as the government would have to ensure that a university education is available to every capable citizen. Effectively, this would mean that the burden of tuition costs would be shifted away from students and onto the provincial government. Hypothetically, the law could even be further interpreted to provide that living expenses would be covered by the government as well.
The positive right to higher education would allow for both universities and their students to reach their full potential. Through the removal of financial barriers, there would be a greater emphasis placed on merit, as opposed to self-selection, in university admissions. Positive recognition of educational rights would also free secondary institutions from restraints imposed on them in their current state as profit-seekers. With monetary constraints no longer posing a barrier, student diversity would drastically increase. Furthermore, expanding positive rights in education would also open the door for the implementation of other federal rights. This would have broader effects which could even help ameliorate the housing crisis as governments would have an obligation to build non-market housing, instead of leaving housing to the behest of market forces. In the age of neoliberalism, students need to have greater protection of their rights and the best way to do that is with a little positivity.
