Constitutional law ‑‑ Charter of Rights ‑‑ Liberty of the person ‑‑ Schools ‑‑ Right of parents to educate their children ‑‑ Proof of efficient instruction at home limited to a certificate from the school authorities ‑‑ Whether appellant has been deprived of the liberty to educate its children contrary to the principles of fundamental justice ‑‑ Canadian Charter of Rights and Freedoms, s. 7 ‑‑ School Act, R.S.A. 1980, c. S‑3, ss. 142(1), 143(1), 180(1).
Appellant, the pastor of a fundamentalist church, educated his three children and others in a schooling program operating in the church basement. He refused to send his children to public school as required by s. 142(1) of the Alberta School Act. He also refused to seek an exemption under s. 143(1)(a) and (e), excusing a pupil from attending a school over which a board has control if (1) a Department of Education inspector or a Superintendent of Schools certifies that he is receiving efficient instruction at home or elsewhere, or (2) he is attending a private school approved by the Department of Education. As a consequence, he was charged with three counts of truancy under s. 180(1) of the School Act. In Provincial Court, appellant invoked ss. 2( a ) and 7 of the Canadian Charter of Rights and Freedoms and maintained that the requirement in s. 142(1) of the Act, or even the requirement that he apply for an exemption pursuant to s. 143(1), contravened his religious beliefs that God, rather than the Government, had the final authority over the education of his children, and deprived him of his liberty to educate his children as he pleased contrary to the principles of fundamental justice. The trial judge concluded that s. 2( a ) of the Charter did not apply, but upheld the defence based on s. 7. He held that since proof of efficient instruction was solely by means of a certificate issued by the school authorities, this would prevent the appellant from making a full answer and defence by bringing all evidence relevant to the issue before the court. The Court of Appeal reversed the judgment and entered convictions against the appellant on all three counts.
Held (Wilson J. dissenting): The appeal should be dismissed.
Per Dickson C.J. and Lamer and La Forest JJ.: Although the effect of the School Act constitutes some interference with appellant's freedom of religion, the impugned provisions of the Act do not offend s. 2( a ) of the Charter . The Act, which was enacted to regulate the education of young people in the Alberta schools, does not give the government absolute control over the education of children. A child is not forced, under the Act, to attend a school over which a board has control. Section 143(1) provides alternatives and allows for instruction at home or elsewhere, so long as that instruction is certified to be efficient. Appellant also had the right, under this section, to seek the registration of his academy as a private school. Considering the compelling interest of the province in the "efficient instruction" of the young, a requirement that a person who gives instruction at home or elsewhere have that instruction certified as being sufficient is demonstrably justified in a free and democratic society. Such a requirement constitutes a reasonable limit on a parent's religious convictions concerning the upbringing of his children. So is a subsidiary requirement that those wishing to give such instruction apply to the appropriate authorities for certification that the instruction given complies with provincial standards of efficiency.
Even assuming that liberty used in s. 7 of the Charter does include the right of parents to educate their children as they see fit, the impugned provisions of the School Act do not deprive them of that right in a manner that is not in accordance with the principles of fundamental justice guaranteed by that section. The Act created a system which ensures compliance with the requirements that the province considers necessary to advance its interest in the quality of education. It did so by providing for certain standards in the Act and the regulations, and by delegating to the school authorities the power to particularize the requirements within the general confines of the Act. Although the school authorities have a vested interest in the system, it seems normal enough to refer a question of efficient instruction within the Act to a school inspector or a superintendent of schools who is knowledgeable of the requirements and workings of the educational system under the Act. This type of administrative structure is not in itself so manifestly unfair as to violate the principles of fundamental justice. The certifying process engaged in by the school authorities does not demand the safeguards surrounding a judicial decision. It is sufficient to protect the individual when they come to deal with his application. The court would no doubt intervene if, in exercising their functions, the school authorities sought to impose arbitrary standards or if they, in other respects, acted in a manner that was fundamentally unfair. Such would be the case with the imposition of standards extraneous to educational policy under the Act or with a failure to examine the facts or to fairly consider the appellant's representations.
Per Beetz, McIntyre and Le Dain JJ.: Section 143(1)(a) of the School Act does not infringe freedom of religion. The effect of the section is to foster religious freedom rather than to curtail it. On the s. 7 issue, there was general agreement with the reasons of La Forest J. and with his disposition of the issue.
Per Lamer J.: The conclusion that s. 180(1) of the School Act does not offend s. 7 of the Charter in the present case should not be taken as having inferentially decided in favour of the constitutional validity of s. 180(1) in all cases. This section purports to convict and penalize a parent whose child contravenes the Act without any reference to the mental element required of the parent for conviction or to the availability of any defence of due diligence that could be invoked by such a parent. Depending upon the qualifications given to the section ‑‑ for example, whether it is one of strict or of absolute liability ‑‑ the restriction to liberty through the imposition of imprisonment for non‑payment of a fine raises important issues which need not be decided in this case.
Per Wilson J. (dissenting): Neither the compulsory attendance provisions of the School Act, taken as a whole, nor the School Board requirement that a parent, whose children do not attend public school, must apply for an exemption, offend appellant's freedom of conscience and religion. The Act is a flexible piece of legislation which seeks only to ensure that all children in public or private schools, at home or elsewhere, receive an adequate education. It does not forbid the existence of schools which have a religious orientation. On the contrary, it accommodates it.
The appellant has failed to show any substantial impact of the legislation on his belief that God and not the State is the true source of authority over the education of his children. While the Act makes no express reference to divine authority, it defers to parental authority by allowing home instruction and instruction in private schools, thereby accommodating the State purpose to the preferences of individual parents. It defers to beliefs such as the appellant's and recognizes the very values for which he contends. If the statutory machinery for obtaining exemption for his children from mandatory school attendance has any impact at all on the appellant's freedom of conscience and religion, such an impact is extremely formalistic and technical and does not give rise to a violation of s. 2( a ) of the Charter . Legislative or administrative action whose effect on religion is trivial or insubstantial is not a breach of freedom of religion.
The right to "liberty" in s. 7 includes a parent's right to bring up and educate his children in accordance with his conscientious beliefs. Section 143(1) of the Act, which limits the proof of efficient instruction to a certificate from an education official, violates appellant's right to liberty under s. 7 of the Charter in a manner that is not in accordance with the principles of fundamental justice. Without the certificate, a parent has no legal right to educate his children. He is also exposed to a charge of truancy under s. 180(1) of the Act which could result in loss of physical liberty for non‑payment of fines. This would be an obvious deprivation of his liberty. Since proof of efficient instruction is restricted by the legislation to the production of the certificate, the appellant, on a charge under s. 180(1), is prevented from introducing evidence relevant to the issue before the court. He is deprived of the right to make full answer and defence. This is not in accordance with the principles of fundamental justice.
The violation of an individual's right under s. 7 by legislation which offends the principles of fundamental justice is neither reasonable nor justifiable in a free and democratic society. Even if it could be so justified under s. 1, the government has failed to do so. It has put forward no justification for the one exclusive means of establishing efficient instruction and it has proffered no argument as to why exclusivity is necessary to achieve the province's objective of insuring adequate instruction for its children. Therefore, pursuant to s. 52(1) of the Constitution Act, 1982 , ss. 142, 143 and 180 of the Act are, to the extent of the inconsistencies with s. 7 of the Charter , of no force or effect.
Cases Cited
By La Forest J.
Referred to: R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Brown v. Board of Education of Topeka, 347 U.S. 483 (1954); Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Oakes, [1986] 1 S.C.R. 103; Sheridan Road Baptist Church v. Department of Education, 348 N.W. 2d 263 (1984); New Jersey State Board of Higher Education v. Board of Directors of Shelton College, 448 A.2d 988 (1982); Meyer v. State of Nebraska, 262 U.S. 390 (1923); State v. Shaver, 294 N.W. 2d 883 (1980); R. v. Weibe, [1978] 3 W.W.R. 36; R. ex rel Brooks v. Ulmer, [1923] 1 W.W.R. 1; New Jersey‑Philadelphia Presbytery of the Bible Presbyterian Church v. New Jersey State Board of Higher Education, D.N.J., Civ. No. 79‑3341, July 29, 1983, aff'd 3rd Cir., No. 83‑5774, July 17, 1984.
By Wilson J. (dissenting)
R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646 (1980); Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236 (1968); Wolman v. Walter, 433 U.S. 229 (1977); Everson v. Board of Education, 330 U.S. 1 (1947); Lemon v. Kurtzman, 403 U.S. 602 (1971); Washington v. Davis, 426 U.S. 229 (1976); Braunfeld v. Brown, 366 U.S. 599 (1961); Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, aff'g on other grounds [1983] 1 F.C. 745 (C.A.); R. v. Oakes, [1986] 1 S.C.R. 103; R. ex rel Brooks v. Ulmer, [1923] 1 W.W.R. 1; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Horbas v. Minister of Employment and Immigration, [1985] 2 F.C. 359; Parkdale Hotel Ltd. v. Canada (Attorney General), [1986], 2 F.C. 514; Groupe des éleveurs de volailles de l’est de l’Ontario v. Canadian Chicken Marketing Agency, [1985] 1 F.C. 280; Pierce v. Society of Sisters, 268 U.S. 510 (1925); Meyer v. State of Nebraska, 262 U.S. 390 (1923); Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965); Prince v. Massachusetts, 321 U.S. 158 (1944); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); Wisconsin v. Yoder, 406 U.S. 205 (1972); Duke v. The Queen, [1972] S.C.R. 917; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 1 , 2( a ) , 7 , 24 .
Constitution Act, 1867 , s. 96 .
Constitution Act, 1982 , s. 52(1) .
Education Act, R.S.O. 1980, c. 129, s. 20(2)(a).
Education Act, R.S.Q. 1977, c. I‑14, s. 257(2).
European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (1950), s. 8(1), Protocol No. 1, s. 2.
School Act, R.S.A. 1980, c. S‑3, ss. 142(1), 143(1)(a), (e), 180(1).
School Act, R.S.B.C. 1979, c. 375, s. 113(2)(a).
School Ordinance, R.O.N.W.T. 1974, c. S‑3, s. 112(a).
Authors Cited
Garant, Patrice. "Fundamental Freedoms and Natural Justice (Section 7)". In The Canadian Charter of Rights and Freedoms : Commentary. Edited by Walter S. Tarnopolsky and Gérald‑A. Beaudoin. Toronto: Carswells, 1982, pp. 257‑290.
Mill, John Stuart. On Liberty. Edited by Elizabeth Rapaport. Indianapolis: Hackett Publishing Co., 1978.
APPEAL from a judgment of the Alberta Court of Appeal (1984), 33 Alta. L.R. (2d) 281, 57 A.R. 266, 13 C.C.C. (3d) 261, 11 C.R.R. 180, 10 D.L.R. (4th) 765, allowing the Crown's appeal by way of stated case from a judgment of the Provincial Court (1983), 29 Alta. L.R. (2d) 349, 49 A.R. 135, 10 C.C.C. (3d) 333, 8 C.R.R. 92, acquitting the accused on charges contrary to s. 180(1) of the Alberta School Act. Appeal dismissed (Wilson J. dissenting).
Philip E. Carr, for the appellant.
William Henkel, Q.C., for the respondent.
Lorraine E. Weinrib, for the intervener the Attorney General for Ontario.
Reinhold Endres and Alison Scott, for the intervener the Attorney General of Nova Scotia.
The reasons of Dickson C.J. and La Forest J. were delivered by
1. La Forest J.‑‑This case raises, for the first time in this Court, the application to provincial compulsory education legislation of ss. 2(a) (the freedom of religion provision) and 7 (the right to liberty and security provision) of the Canadian Charter of Rights and Freedoms .
2. The appellant accused, Thomas Larry Jones, was charged on March 8, 1983 with three counts of truancy on the part of his three children contrary to s. 180(1) of the Alberta School Act, R.S.A. 1980, c. S‑3. Broadly, his defence is that the requirement that his children attend public school, or even the requirement that he apply for exemption from such attendance as provided by the Act, contravenes his religious beliefs and deprives him of his liberty to educate his children as he pleases contrary to the principles of fundamental justice. This, he says, infringes his rights under ss. 2 and 7 of the Charter .
Background
3. The accused educates his own and twenty or more other children in a schooling program called the "Western Baptist Academy" which operates in the basement of a fundamentalist church of which he is the pastor. He asserts a belief that his authority over his children and his duty to attend to their education comes from God, and that it would be sinful for him to request the state to permit him to do God's will. He, therefore, refused to send his children to public school as required by s. 142(1) of the School Act, which reads as follows:
142(1) Every child who has attained the age of 6 years at school opening date and who has not attained the age of 16 years is a pupil for the purposes of this Act and unless excused for any of the reasons mentioned in section 143 shall attend a school over which a board has control.
4. Section 143 provides alternatives to attending a school over which a school board has control. The relevant parts of that section read as follows:
143(1) A pupil is excused from attendance at school if
(a) a Department of Education inspector or a Superintendent of Schools (whether appointed by a board or the Department of Education) certifies in writing that the pupil is under efficient instruction at home or elsewhere,
...
(e) he is attending a private school approved under the Department of Education Act...
5. The accused objects to availing himself of these alternatives. He refuses to apply for approval of his academy by the Department of Education as a private school as permitted by s. 143(1)(e) because, as noted, requesting the state for permission to do what he is authorized by God to do would, he asserts, violate his religious convictions.
6. Nor will he take steps to seek exemption under s. 143(1)(a) under which a pupil may be excused from attending a school over which a board has control if a certificate has been obtained under that provision that he is receiving efficient instruction at home or elsewhere. Section 143(1)(a) has given rise to what the trial judge has described as a standoff between "a stiff‑necked parson and a stiff‑necked education establishment, both demanding the other make the first move in the inquiry to determine whether the children are receiving efficient instruction outside the public or separate school system". The accused has no objection to the school authorities inspecting his academy and testing his pupils to ascertain their level of achievement, but he asserts that his religious convictions prevent him from making such a request of the school authorities. For their part, the Calgary Board of Education and the Department of Education decline to send inspectors to ascertain whether the children are under efficient instruction unless requested to do so, although they have sent the school attendance officer without request.
7. This stalemate culminated in the accused being charged under s. 180(1) of the School Act for contravening s. 142, the relevant portion of which has already been reproduced. Section 180(1) reads as follows:
180(1) A parent whose child contravenes any of the provisions of this Act relating to school attendance is guilty of an offence and liable to a fine of not more than
(a) $100 for a first offence,
(b) $250 for a 2nd offence, and
(c) $500 for a 3rd and every subsequent offence,
and in default of payment to imprisonment for a term not exceeding 60 days.
8. The accused was originally tried and acquitted by Fitch Prov. Ct. J. on March 21, 1983, 25 Alta. L.R. (2d) 359, 43 A.R. 64, 10 C.C.C. (3d) 356, but on an appeal to the Court of Appeal of Alberta, that court, on October 3, 1983, referred the matter back to the trial judge for further argument following notice to the Attorneys General of Alberta and Canada pursuant to the Judicature Act of that province. Fitch Prov. Ct. J. then heard the matter in accordance with this direction and again acquitted the accused on all charges: (1983), 29 Alta. L.R. (2d) 349, 49 A.R. 135, 10 C.C.C. (3d) 333, 8 C.R.R. 92.
9. The principal defences of the accused at the rehearing, so far as relevant to this appeal, were as follows. First, the compulsory attendance provisions of the School Act, taken as a whole, offend the freedom of conscience and religion guaranteed to him by s. 2( a ) of the Charter . Second, ss. 143(1)(a) and (e) of the School Act, in particular, offend those freedoms since application for approval of a private school or for certification of efficient instruction offend his religious convictions, as would refusal of such applications. Third, s. 143(1)(a), by limiting evidence of efficient instruction to a certificate there described, deprives him of his liberty contrary to the principles of fundamental justice guaranteed by s. 7 of the Charter ; this evidentiary limitation, the accused maintains, prevents him from making a full answer and defence to the charge.
10. Fitch Prov. Ct. J. dismissed the two defences based on freedom of conscience and religion. In his view, ss. 142(1) and 143, when taken together, did not require compulsory attendance at schools under the control of a board, but merely mandated compulsory education. Such education was available at schools under the control of a board, but the Act also allowed a person to comply with this requirement by sending his children to an approved private school or by providing them with private tutoring certified as being efficient instruction. The accused did not object to education, the trial judge continued, but rather professed a duty to educate his own children. It followed, he held, that taken as a whole the impugned provisions did not offend the accused's s. 2 Charter rights.
11. So far as the accused's objection to seeking approval of his school or certification of his instruction, Fitch Prov. Ct. J. found that, "The accused has failed to establish a factual basis for his claim that the requirement of certification or approval offends his religious beliefs." However, he then proceeded on the assumption that he was wrong in so finding, and, after examining a number of relevant cases, he held that applying for certification or approval was peripheral to the exercise of religious freedom. He, therefore, concluded that the freedom of religion provisions of the Charter did not apply.
12. Fitch Prov. Ct. J., however, upheld the defence based on s. 7 of the Charter . Since proof of efficient instruction under s. 143(1)(a) was solely by means of a certificate issued by an employee of the school board or the Minister of Education or his designate, this would prevent the accused from making a full answer and defence by bringing all evidence relevant to the issue before the court. The provision was, therefore, of no force and effect because it contravened the principles of fundamental justice. He, therefore, acquitted the accused.
13. On appeal to the Court of Appeal of Alberta, that court reversed the judgment and entered convictions against the accused on all three counts: (1984), 33 Alta. L.R. (2d) 281, 57 A.R. 266, 13 C.C.C. (3d) 261, 11 C.R.R. 180, 10 D.L.R. (4th) 765. In the court's view, the respondent, not having been refused a certificate, was not an aggrieved person, but was attacking the prohibitions of the School Act in the abstract. Acceding to the views of Fitch Prov. Ct. J. on the matter of penalty, the Court of Appeal imposed a fine of $5 in respect of each count.
14. Leave to appeal to this Court was granted, [1984] 2 S.C.R. viii, and the following constitutional question was stated:
Whether ss. 142, 143 and 180 of the School Act, R.S.A. 1980, c. 3, are inconsistent with s. 2( a ) or s. 7 of the Canadian Charter of Rights and Freedoms and therefore of no force or effect to the extent of the inconsistencies pursuant to s. 52(1) of the Constitution Act, 1982 ?
15. Interventions were made by the Attorneys General of Nova Scotia and Ontario.
The Freedom of Religion Argument
16. Section 2( a ) of the Charter reads as follows:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
17. The Alberta School Act, as the name implies, was enacted to regulate the education of young people in the schools of the province. That is a purely secular goal. It does not have a religious purpose. But I agree with the appellant that if its effect is to interfere with his religious activities or convictions, it raises an issue under s. 2( a ) of the Charter . As Dickson J. (now C.J.) stated in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at p. 331, "both purpose and effect are relevant in determining constitutionality".
18. I do not agree, however, with the appellant's contention that the School Act gives the government absolute control over the education of children. It does not purport to force children to attend a school over which a board has control. Section 143(1) allows for instruction at home or elsewhere, so long as that instruction is certified to be efficient, or to attend a private school approved by the department. In essence, as the trial judge observed, it does not provide for compulsory attendance at schools controlled by a board, but for compulsory education.
19. The appellant's real point, however, is that he rejects the requirement of registration of his academy as a private school or certification that he is giving efficient instruction at home or elsewhere because, he asserts, this involves his acknowledging that the government, rather than God, has the final authority over the education of his children. Such an acknowledgment, he claims, would be inconsistent with his religious convictions.
20. Assuming the sincerity of his convictions, I would agree that the effect of the School Act does constitute some interference with the appellant's freedom of religion. For a court is in no position to question the validity of a religious belief, notwithstanding that few share that belief. But a court is not precluded from examining into the sincerity of a religious belief when a person claims exemption from the operation of a valid law on that basis. Indeed it has a duty to do so. The trial judge went into the question in this case and concluded, we saw, that "The accused has failed to establish a factual basis for his claim that the requirement of certification or approval offends his religious beliefs." Counsel for the appellant, however, urges us to hold that the trial judge erred in this conclusion. It would require strong grounds to justify this Court in reversing the finding of a trial judge, which was moreover not questioned by the Court of Appeal, on a factual question like this one.
21. The trial judge's finding may, however, be interpreted as falling short of a finding that the appellant did not sincerely have a religious conviction that he could not apply for certification; he did deal with the case on the basis that the appellant had such a conviction. I shall, therefore, assume the sincerity of the appellant's belief. I might perhaps first say that, while a religious belief that a person has the right to educate his own children is not as strongly asserted nowadays, it is really not that unusual. It would be to negate history to fail to recognize that for many years the individual and the church played a far more significant role in the education of the young than the state. And when the state began to take the dominant role, it had to make accommodations to meet the needs and desires of those who had dissentient views. The provisions regarding separate schools in the Constitution are an example. But our historical experience is by no means confined to these arrangements. One need only refer to the serious social and political crises that developed in this country in the latter part of the 19th century when governments sought to establish common schools in the various provinces. These attempts gave rise to major political issues, and compromises inevitably followed. Many of these continue to this day. Nonetheless, the appellant's claim is rather unusual in its specific setting and its intensity.
22. If the appellant has an interest in, and a religious conviction that he must himself provide for the education of his children, it should not be forgotten that the state, too, has an interest in the education of its citizens. Whether one views it from an economic, social, cultural or civic point of view, the education of the young is critically important in our society. From an early period, the provinces have responded to this interest by developing schemes for compulsory education. Education is today a matter of prime concern to government everywhere. Activities in this area account for a very significant part of every provincial budget. Indeed, in modern society, education has far‑reaching implications beyond the province, not only at the national, but at the international level. Much of what was said by the Supreme Court of the United States in the following passage in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) at p. 493, has application here:
Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument is awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.
23. The interest of the province in the education of the young is thus compelling. It should require no further demonstration that it may, in advancing this interest, place reasonable limits on the freedom of those who, like the appellant, believe that they should themselves attend to the education of their children and to do so in conformity with their religious convictions. Section 1 of the Charter allows for this. It provides that the rights and freedoms set out in the Charter are subject "to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".
24. In weighing whether the limits imposed on the appellant in the present case are reasonable within the section, it is worth repeating that the School Act does not deny the right of the appellant to provide home instruction to his children. Indeed, s. 143(1)(a) expressly allows for this and he has the right, as well, to seek registration of his academy as a private school.
25. How far the province could go in imposing conditions on the way the appellant provides instruction, if he had applied for registration of his academy as a private school or for certification of the efficiency of his instruction, I need not enter into. Certainly a reasonable accommodation would have to be made in dealing with this issue to ensure that provincial interests in the quality of education were met in a way that did not unduly encroach on the religious convictions of the appellant. In determining whether pupils are under "efficient instruction", it would be necessary to delicately and sensitively weigh the competing interests so as to respect, as much as possible, the religious convictions of the appellant as guaranteed by the Charter . Those who administer the province's educational requirements may not do so in a manner that unreasonably infringes on the right of parents to teach their children in accordance with their religious convictions. The interference must be demonstrably justified.
26. But we need not, in this case, enter into an examination of the extent to which requirements to obtain certification or approval may go. The possibility that excessive demands would be made rests on pure speculation. The appellant has never been refused a certificate of instruction, so he is not an aggrieved person in that sense. It is he who refuses to apply. To do so, he asserts, offends his religious convictions.
27. I might at this point say that I am not impressed by the argument that nothing in the Act spells out that the appellant must apply for certification. What the Act tells him (s. 142(1)) is that his children must attend a school under the control of a board, subject to the penalty provided in s. 180. Section 143(1) provides excuses for failure to comply with the requirement. It is up to him to take steps to avail himself of this provision.
28. As noted earlier, the province, and indeed the nation, has a compelling interest in the "efficient instruction" of the young. A requirement that a person who gives instruction at home or elsewhere have that instruction certified as being efficient is, in my view, demonstrably justified in a free and democratic society. So too, I would think, is a subsidiary requirement that those who wish to give such instruction make application to the appropriate authorities for certification that such instruction complies with provincial standards of efficiency. Such a requirement constitutes a minimal, or as the trial judge put it, peripheral intrusion on religion. To permit anyone to ignore it on the basis of religious conviction would create an unwarranted burden on the operation of a legitimate legislative scheme to assure a reasonable standard of education.
29. Counsel for the appellant placed considerable reliance on Dickson J.'s (now C.J.) statement in Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at p. 169, that the onus of establishing that a limitation to a Charter right is justified is on the person who seeks to do so. But more recently, in R. v. Oakes, [1986] 1 S.C.R. 103, the Chief Justice made it clear that this is so only "[w]here evidence is required in order to prove the constituent elements of a s. 1 inquiry" (p. 138). I do not think such evidence is required here. A court must be taken to have a general knowledge of our history and values and to know at least the broad design and workings of our society. We are not concerned with particular facts.
30. No proof is required to show the importance of education in our society or its significance to government. The legitimate, indeed compelling, interest of the state in the education of the young is known and understood by all informed citizens. Nor is evidence necessary to establish the difficulty of administering a general provincial educational scheme if the onus lies on the educational authorities to enforce compliance. The obvious way to administer it is by requiring those who seek exemptions from the general scheme to make application for the purpose. Such a requirement constitutes a reasonable limit on a parent's religious convictions concerning the upbringing of his or her children. The extent to which a state could intrude on the appellant's religious convictions in determining what is efficient instruction does not arise here. A balance could only be attempted in a specific context.
31. The approach I have taken conforms in its essentials with the manner in which the courts in the United States have consistently dealt with similar issues that have arisen under the Constitution of that country; see, inter alia, Sheridan Road Baptist Church v. Department of Education, 348 N.W. 2d 263 (1984), a decision of the Michigan Court of Appeal involving a statute containing provisions bearing some similarity to those in the Alberta School Act (see esp. p. 267). I find particularly apt in this context the statement of O'Hern J., giving the opinion of the Supreme Court of New Jersey, in New Jersey State Board of Higher Education v. Board of Directors of Shelton College, 448 A.2d 988 (1982), where Shelton College refused to be licensed under a state statute on the basis of religious convictions. He said this, at p. 996:
Here, accommodation of defendants' religious beliefs would entail a complete exemption from state regulation. As noted above, such accommodation would cut to the heart of the legislation and severely impede the achievement of important state goals.
32. Though the Charter protects the individual from compulsion or restraint in violation of his rights, and a court must, as Dickson J. noted in R. v. Big M Drug Mart Ltd., supra, at p. 344, interpret the rights it enshrines in "a generous rather than a legalistic" fashion, the protection accorded them, as he has also noted, can only be "within the limits of reason" (see Hunter v. Southam Inc., supra, at p. 156). A form of proportionality test is involved (R. v. Big M Drug Mart Ltd., supra, at p. 352). I do not think it would be reasonable to permit the appellant to ignore the province's laws on a matter as important as the education of the young.
33. For these reasons, I do not think the appellant can succeed in his argument under s. 2( a ) of the Charter .
The Interference with Liberty Argument
34. Section 7 of the Charter reads:
7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
35. Counsel for the appellant submits that by being subjected to penal sanctions for failing to send his children to a school under the control of a board, he is being deprived of his liberty in a way that is not in accordance with fundamental justice. This deprivation, he says, arises in two ways: first, by depriving the appellant of his right to bring up his children in a manner he sees fit, and secondly, by providing penal sanctions in s. 180 of the Act, a penal sanction, he notes, that can include imprisonment up to sixty days.
36. "Liberty" as used in s. 7 of the Charter , the appellant contends, should be given the generous interpretation accorded that word in the Due Process Clause of the Constitution of the United States where the right of a parent to educate his children is grounded not only in the protection of religion assured by that Constitution but also in the liberty proclaimed in the Due Process Clause. He referred, among other cases, to Meyer v. State of Nebraska, 262 U.S. 390 (1923) at p. 399, where the following statement appears:
While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.
37. Liberty in s. 7, the appellant claims, includes the right, as it does in the United States, to bring up his children in the manner he deems fit. The impugned provisions of the School Act, he adds, deprive him of that right in a manner that is not in accordance with the principles of fundamental justice. These provisions, he submits, breach the principles of fundamental justice, first, by requiring parents of children not attending schools under the control of a board to prove that their children are receiving efficient instruction while parents whose children do attend these schools need not. Thus, school attendance at government operated or controlled schools is equated with efficient instruction and the government has the absolute right to control the method of educating children even if parents are providing efficient instruction. Secondly, he urges, these provisions confer on someone employed by the school system, i.e. someone with a vested interest in that system, the power to judge whether a person outside that system is providing efficient instruction. Finally, he argues that the provisions limit the evidence admissible to prove that efficient instruction is being given to a certificate signed by an inspector or Superintendent of Schools, thus preventing the appellant a full answer and defence to the charge.
38. I find it unnecessary to deal with the appellant's contention regarding the meaning of liberty, because in my view, even assuming that liberty as used in s. 7 does include the right of parents to educate their children as they see fit, he has not been deprived of that liberty in a manner that violates s. 7 of the Charter . Similarly, I need not deal with the possibility that he may be deprived of liberty by a term of imprisonment. Such a sanction may, under the Act, be imposed only on failure to pay a fine and in any event no such sanction was imposed here. The essential question for present purposes is whether, assuming the appellant's argument regarding the meaning of liberty is correct, he has been deprived of that liberty contrary to the principles of fundamental justice.
39. There is, in my view, a fallacy lurking in the appellant's first two submissions regarding fundamental justice. They first invite us to view the process engaged in by the school authorities in certifying instruction as efficient as being rather in the nature of a judicial hearing, and then suggest that the school authorities must necessarily be biased or at least create in the appellant a reasonable apprehension of bias. I have no doubt that if in exercising their functions the school authorities sought to impose arbitrary standards, i.e. standards extraneous to the educational policy under the Act, or if they in other respects acted in a manner that was fundamentally unfair, such as failing to examine the facts or to fairly consider the appellant's representations, the courts could intervene. But I am unable to categorize the issue as the appellant does.
40. I have already indicated that the province has a compelling interest in the quality of education and what it has done by the Act is to provide a system to ensure that the requirements it considers necessary to advance this interest are complied with. This it did by providing for certain standards in the School Act and the regulations, and by delegating to the school authorities the power to spell out the details in order to meet the variegated needs throughout the province. The policy obviously involves both content and efficiency of instruction, an expression that must be viewed in terms of the provincial educational policy, not in the dissociated manner the appellant seems to advance. The province may, if it chooses, deal with educational policy in the Act itself or by means of regulations or by designating officials to particularize the requirements within the general confines of the Act. In a word, the school authorities are participating in the elucidation of an educational policy the province has a compelling interest in carrying out. Of course, these authorities have a vested interest in the system. But it seems normal enough to refer a question of efficient instruction within the meaning of the School Act to a school inspector or a Superintendent of Schools who is knowledgeable of the requirements and workings of the educational system under the School Act.
41. It is true that some provinces have adopted another method of doing this, by having the issue determined by a court. There are, no doubt, some advantages to the latter approach but there are disadvantages too. It creates a more cumbersome administrative structure. If the decision maker is more detached, he is also less knowledgeable and sensitive to the needs of the educational system. I do not think such a system can be imposed on the province in the present context. Some pragmatism is involved in balancing between fairness and efficiency. The provinces must be given room to make choices regarding the type of administrative structure that will suit their needs unless the use of such structure is in itself so manifestly unfair, having regard to the decisions it is called upon to make, as to violate the principles of fundamental justice.
42. I do not think that is the case here. The province cannot, in my view, be faulted for adopting the philosophy frequently applied in the courts of the United States, namely, that "The courtroom is simply not the best arena for the debate of issues of educational policy and the measurement of educational quality"; see State v. Shaver, 294 N.W. 2d 883 (N.D. S.C. 1980) at p. 900. If in the exercise of the power, those making the decision act in a way the appellant believes violates his rights, he can raise the issue in the courts.
43. In support of this portion of his argument, counsel for the appellant sought to rely on the decision of this Court in Hunter v. Southam Inc., supra. In that case, the Director of Investigation and Research under the Combines Investigation Act, R.S.C. 1970, c. C‑23, issued an authorization for the search of premises as permitted by the Act. This Court held the authorization violated s. 8 of the Charter which guarantees the right to be secure against unreasonable search and seizure. One of the grounds of the decision was that the Director, in deciding to authorize a search, would in effect be a judge in his own cause. But the serious nature of the intrusion on the right to privacy sought to be protected in that case contrasts sharply with that at issue in the present case. As Dickson J., speaking for the Court in Hunter, observed, intrusions on the individual's expectations of privacy have long been protected by the common law, which has, in particular, always strongly leaned against unreasonable searches and seizures. Accordingly, in his view, the grant of authorization to search under the Combines Investigation Act must be given prior to the search and must meet judicial standards. Of the latter requirement, he had this to say, at pp. 161‑62:
The purpose of a requirement of prior authorization is to provide an opportunity, before the event, for the conflicting interests of the state and the individual to be assessed, so that the individual's right to privacy will be breached only where the appropriate standard has been met, and the interests of the state are thus demonstrably superior. For such an authorization procedure to be meaningful it is necessary for the person authorizing the search to be able to assess the evidence as to whether that standard has been met, in an entirely neutral and impartial manner.
44. To insist on prior court authorization in the case of an administrative requirement of the kind in question here is, in my view, not warranted. The Charter, as we saw, protects the rights and freedoms it guarantees only "within the limits of reason". I do not think the intrusion on the individual in a case like the present demands the safeguards surrounding a judicial decision. It is sufficient to protect the individual against unfairness or the disregard of his rights by the school authorities when they come to deal with his application.
45. Counsel for the appellant also noted that in Hunter the Court insisted on the necessity of objective standards in making a decision. Here, he claims there are no objective standards by which efficient instruction is to be judged. To this I would reply that there can be no precise definition of what constitutes efficient education. The question must necessarily be left for someone to determine. Of course, it cannot be decided in the abstract or in an arbitrary manner. The discretion accorded by s. 143(1)(a) must necessarily be determined in accordance with the requirements of the School Act as they operate in a practical setting. While some guidelines could probably be spelled out, in many if not all aspects, simply requiring efficient instruction may, from a practical standpoint, be as precise a standard as the nature of the subject‑matter will allow; in any event, such a standard in this context is not unreasonable. And who is more qualified to consider the question than a Department of Education inspector or a Superintendent of Schools, the very officials to whom the discretion is given by the provision? Should the decisions of these officials in performing their duty unduly infringe on the appellant's freedom of religion or his liberty, he can raise the issue in the courts in the manner I shall hereafter describe.
46. The truth is, of course, that no matter how specific the requirements of the School Act might be, the appellant would still object to being subjected to them. I might again note that the American courts have met with objections of this kind in a manner similar to the one I have adopted. In New Jersey‑Philadelphia Presbytery of the Bible Presbyterian Church v. New Jersey State Board of Higher Education, U.S. District Ct. for the District of N.J., Civ. No. 79‑3341, unpublished opinion, July 29, 1983 (affirmed by the U.S. Court of Appeals for the Third Circuit, No. 83‑5774, unpublished opinion, July 17, 1984), the court made it clear (at p. 12) that whether a licensing program of this kind impinges on religious liberties will depend upon the manner in which the program is administered; see also Sheridan Road Baptist Church v. Department of Education, supra, at pp. 275‑76.
47. I have already stated that if it can be established that the school authorities' action is exercised in an unfair or arbitrary manner, then the courts can intervene. It may also be that at some stage certain requirements, whether imposed directly by the School Act or by regulations or by officials of the Department of Education or of local school boards, may have to give way to the liberty of the individual to educate his children as he pleases to the extent that such liberty is protected by the Charter . That, we saw, is a question of balancing. If a person feels aggrieved, he may apply to a court of competent jurisdiction, in that case a superior court under s. 96 of the Constitution Act, 1867 , which could accord him such remedy as it considered appropriate. But I do not think he is compelled to make such application. He can wait to be prosecuted. It is true that before the Charter it had been held, in R. ex rel Brooks v. Ulmer, [1923] 1 W.W.R. 1 (Alta. C.A.), that in the absence of a certificate there was no defence to the charge of non‑attendance at school. However, in R. v. Weibe, [1978] 3 W.W.R. 36 (Alta. Prov. Ct.), Oliver Prov. Ct. J. allowed evidence of efficient instruction to be adduced in a case where the plaintiff objected to sending his children to public schools on religious grounds. This he held was required by the provision in the Alberta Bill of Rights guaranteeing freedom of religion. In my view, the defendant could raise any interference with his rights under the Charter as a defence. The mere fact that a certificate was not granted would not be sufficient to meet such a defence or an application under s. 24 of the Charter .
48. The provision under which the appellant is charged is one dealing with truancy generally. It does not per se violate the claimed liberty. It does so only if those charged with its administration use it as a device for unduly infringing on such liberty. If this occurred, the Charter defence would come into play. That, however, is not the case here.
49. I, therefore, think that the appellant's argument regarding s. 7 of the Charter also fails.
Conclusion
50. For these reasons, I would dismiss the appeal and reply to the constitutional question in the negative.
The reasons of Beetz, McIntyre and Le Dain JJ. were delivered by
51. McIntyre J.‑‑I have had the advantage of reading the reasons for judgment prepared by my colleagues, Wilson and La Forest JJ. The facts are set forth in the reasons of La Forest J. and it will not be necessary for me to make reference to them. On the first issue dealt with in their respective reasons‑‑that of the asserted breach of the appellant's freedom of religion resulting from s. 143(1)(a) of the Alberta School Act, R.S.A. 1980, c. S‑3‑‑I am in agreement with Wilson J. It is my opinion that the impugned section does not infringe freedom of religion and I am in agreement with Wilson J. that the effect of s. 143(1)(a) is to foster religious freedom rather than to curtail it. Adopting this view, I need not deal with the application of s. 1 of the Canadian Charter of Rights and Freedoms .
52. On the second issue, that is, the asserted interference with the liberty guaranteed in s. 7 of the Charter , I am in general agreement with the reasons of La Forest J. and I am in agreement with his disposition of the issue.
53. I would, accordingly, dismiss the appeal and answer the constitutional question in the negative.
The following are the reasons delivered by
54. Lamer J.‑‑I concur in the reasons of La Forest J.
55. As regards s. 7 of the Canadian Charter of Rights and Freedoms , while I agree with him that s. 180(1) of the School Act, R.S.A. 1980, c. S‑3, does not offend the section on the grounds urged upon us by the appellant, I feel compelled to qualify my concurrence in that conclusion. Indeed, s. 180(1) purports to convict and penalize a parent whose child (let us postulate a fifteen year old runaway!) contravenes the Act by, for example, not attending "a school over which a board has control", without any reference to the mental element required of the parent for conviction or to the availability of any defence of due diligence that could be invoked by such a parent. Depending upon the qualifications given to the section, such as, amongst others, whether it is one of strict or of absolute liability, the restriction to liberty through the imposition of imprisonment for non‑payment of a fine raises issues, which, while they should not be decided in this case, I would not want to be taken as having inferentially decided in favour of the constitutional validity of the section. Save for this one reservation, I fully agree with the reasons of my colleague, La Forest J.
The following are the reasons delivered by
56. Wilson J. (dissenting)‑‑I have had the benefit of the reasons of my colleague, La Forest J., and must respectfully differ from him in two major respects, namely:
57. (1) I do not believe that the impugned sections of the School Act, R.S.A. 1980, c. S‑3, violate the appellant's freedom of conscience and religion under s. 2( a ) of the Canadian Charter of Rights and Freedoms . Accordingly, I do not find it necessary, as does my colleague, to "save" the impugned sections under s. l.
58. (2) I conclude that s. 143(1) violates the appellant's right to liberty under s. 7 of the Charter in a way which offends the principles of fundamental justice and that it is not "saved" by s. 1 even if s. 1 can save a violation of a s. 7 right, as to which I have some reservations.
59. I will not repeat the facts of the case which are fully set out in my colleague's reasons. I do wish, however, in responding to the appellant's submissions to clarify what I understand to be his position on both the s. 2(a) and s. 7 issues.
Section 2(a): Freedom of Conscience and Religion
60. The appellant's position under s. 2(a) is, I believe, a very narrow one. He does not deny the interest of government in the education of the young. He does not dispute its right to vet the instruction he is providing at his private school to see whether or not it meets government standards. His concern is purely with the statutory machinery for obtaining exemption for his children from mandatory school attendance. It requires him to apply to the Board for such an exemption and it is this which he alleges violates his freedom of conscience and religion. He says that he cannot make such an application because he believes that his right and duty to bring up and educate his children comes from God and it would offend his conscience and his religious convictions to acknowledge the School Board, a secular institution, as the source of this right and obligation. To accept that the Board can grant him permission to carry out his God‑given duty would be, he submits, to accept the converse, i.e. that it can also refuse him such permission. He cannot in conscience recognize the Board's authority in this regard; he will not make the necessary application. But he has no objection to the Board's proceeding on its own initiative to vet his instruction if it so desires.
61. The compulsory attendance provisions of the School Act, taken as a whole, do not, in the view I take of them, offend the appellant's freedom of conscience and religion. The core of this freedom was identified by Dickson J. (now C.J.) in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at p. 336:
The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.
62. Courts in the United States have considered whether legislation which requires religious educational institutions to meet standards of efficient instruction violates religious guarantees. This issue has commonly been dealt with under the establishment clause in the United States constitution. Although the Canadian constitution does not have an establishment clause, the principles emerging from these cases may be of some assistance: R. v. Big M Drug Mart Ltd., supra, at pp. 339‑41.
63. Under the establishment clause legislation has been held valid if it has a secular legislative purpose, if its primary effect is neither to advance nor inhibit religion and if it does not foster excessive "government entanglement" with religion: Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646 (1980) at p. 653. It is settled law in the United States that it is perfectly constitutional for the government to require religious schools to meet a specified standard of efficient instruction: Board of Education of Central School District No. 1 v. Allen, 392 U.S. 236 (1968) at p. 245; Wolman v. Walter, 433 U.S. 229 (1977) at p. 240; Everson v. Board of Education, 330 U.S. 1 (1947) at p. 18. The U.S. Supreme Court has recognized that religious schools have two goals, religious instruction and secular education. Legislation demanding that private schools meet certain minimum educational standards has the secular purpose and effect of ensuring a knowledgeable and competent citizenry: Board of Education of Central School District No. 1 v. Allen, supra, at pp. 245‑47. It is true that the United States Supreme Court has had some difficulty in determining precisely when the provision of state finances and services to religious schools has the effect of fostering the secular goal of an educated citizenry. For example, it has held that the state may provide bus transportation for children to religious schools (Everson v. Board of Education, supra); lend textbooks to religious schools (Board of Education of Central School District No. 1 v. Allen, supra); and reimburse religious schools for expenses incurred in administering and scoring mandatory standarized educational achievement tests (Committee for Public Education and Religious Liberty v. Regan, supra). But it may not support the salaries of teachers in religious schools who supply secular teaching services (Lemon v. Kurtzman, 403 U.S. 602 (1971)). However, these issues are not before us to‑day.
64. In my view, the School Act does not offend religious freedom; it accommodates it. It envisages the education of pupils at public schools, private schools, at home or elsewhere. The legislation permits the existence of schools such as the appellant's which have a religious orientation. It is a flexible piece of legislation which seeks to ensure one thing‑‑that all children receive an adequate education. The appellant agrees with the need for an adequate education and that this includes instruction in subjects such as English, mathematics, social studies and science. Indeed, at trial he called a secular expert to prove that such instruction was being provided in his school. There is no conflict between what the legislation requires and what the appellant feels it is his duty to provide. True, he wishes to provide more, specifically religious guidance, but the legislation does not prohibit that. Nevertheless, the appellant states that the School Board policy of requiring an individual to make an application violates his s. 2(a) right. In other words, while the content of the legislation does not interfere with his religious freedom, the required act of conformity with it does.
65. I believe that the appellant must fail on this ground of appeal. It does not, in my view, offend the appellant's freedom of religion that he is required under the statute to recognize a secular role for the school authorities. And this is what it is. It would be strange indeed if, just because a school had a religious approach to education, it was free from inspection by those whose responsibility it was to ensure that the standards of secular education set by the Province were being met. This, however, is not really the appellant's position. He acknowledges the Board's interest; he simply states that to apply to it for an exemption offends his s. 2(a) right. I think he has failed to establish this. There are many institutions in our society which have both a civil and a religious aspect, e.g. marriage. A person's belief in the religious aspect does not free him of his obligation to comply with the civil aspect. No‑one is asking the appellant to replace God with the School Board as the source of his right and his duty to educate his children. They are merely asking him to have the quality of his instruction approved by the secular authorities so that minimum standards may be maintained in all educational establishments in the Province.
66. In support of his submission that his s. 2(a) right is being violated, the appellant argues that the true purpose of the impugned legislation is to give the School Board absolute control over the education of children. This is clearly without merit. The legislation itself contemplates exemptions for the very thing the appellant is doing. The purpose of the legislation, in my view, is to ensure that children receive an adequate education, a purpose with which I believe the appellant is in full agreement. There is surely no inherent incompatibility between religious instruction and efficient instruction in secular subjects.
67. The appellant's real complaint, it seems to me, is effects‑based rather than purpose‑based. It is the effect of the statutory machinery for certification on his religious beliefs that he is concerned about and he points to this Court's decision in R. v. Big M Drug Mart Ltd., supra, at p. 331 as authority for the proposition that legislation may be invalidated if its effect is to violate a constitutional guarantee. However, even assuming that this legislation does affect the appellant's beliefs, which for the reasons given I doubt, not every effect of legislation on religious beliefs or practices is offensive to the constitutional guarantee of freedom of religion. Section 2(a) does not require the legislature to refrain from imposing any burdens on the practice of religion. Legislative or administrative action whose effect on religion is trivial or insubstantial is not, in my view, a breach of freedom of religion. I believe that this conclusion necessarily follows from the adoption of an effects‑based approach to the Charter . The U.S. Courts in determining constitutionality sometimes deny the relevance of effect. Thus, in the equal protection area they will look only to the legislative purpose when deciding whether the constitutional guarantee has been violated: Washington v. Davis, 426 U.S. 229 (1976). However, in the area of freedom of religion, as noted earlier, if the effects of the legislation are unconstitutional, the legislation has been held to be unconstitutional: Committee for Public Education and Religious Liberty v. Regan, supra.
68. Having adopted the effects‑based test however, the U.S. Supreme Court felt compelled to restrict its ambit. In Braunfeld v. Brown, 366 U.S. 599 (1961), the Court found that "if the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance" (p. 607). Although I do not adopt the U.S. Supreme Court's test of "indirect burden", I share the concern that motivated the test. To state that any legislation which has an effect on religion, no matter how minimal, violates the religious guarantee "would radically restrict the operating latitude of the legislature" (Braunfeld v. Brown, at p. 606). It is, of course, clearly arguable that under our constitution this kind of concern should be dealt with under s. 1 of our Charter rather than s. 2. However, as I stated in Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441 at p. 489:
The rights under the Charter not being absolute, their content or scope must be discerned quite apart from any limitation sought to be imposed upon them by the government under s. 1.
69. In my view, the appellant has failed to show any substantial impact of this legislation on his belief that God and not the state is the true source of authority over the education of his children. While the School Act makes no express reference to divine authority, it defers to parental authority by allowing home instruction and instruction in private schools, thereby accommodating the state purpose to the preferences of individual parents. It defers, in other words, to beliefs such as the appellant's. It recognizes the very values for which the appellant contends. If the statutory machinery has any impact at all on the appellant's freedom of conscience and religion which, for the reasons I have given, I doubt, it is an extremely formalistic and technical one. I do not believe, therefore, that it gives rise to a violation of s. 2( a ) of the Charter .
70. If I am correct in my conclusion, then it is not necessary for me to consider the application of s. 1. However, I would like to say a brief word about it because, unlike my colleague, I do not believe that the School Act can be saved by s. 1 if it does in fact violate s. 2(a). While there can be no doubt that the province has a compelling interest in education, more than this is required under s. 1. There has to be a form of proportionality between the means employed and the end sought to be achieved. In particular, the means employed must impair as little as possible the right or freedom in issue: R. v. Oakes, [1986] 1 S.C.R. 103. The government adduced no evidence to establish that having the parent apply for a certificate was the least drastic means of ensuring that their children were receiving efficient instruction. The legislature, for example, could clearly have given the education authorities the power to inspect on their own initiative. I do not believe, therefore, that the government has discharged its burden under s. 1.
Section 7: The Right to Liberty
71. The appellant made a number of submissions in an effort to persuade the Court that his s. 7 right was violated by the impugned sections. He asserts that he is being deprived of his right to bring up and educate his children as he sees fit which, he says, is part of "liberty" under s. 7. Moreover, he says that he is being deprived of this right in a way that offends the principles of fundamental justice. The core of his argument under s. 7 has to do with fundamental justice in the procedural rather than the substantive sense. Section 143(1)(a), he points out, establishes only one mechanism for proving that a pupil is receiving efficient instruction (and hence is exempt from attending public school) ‑‑ a certificate from an education official. Without such a certificate a parent has no legal right to educate his children. The appellant sees no reason why there should be only one mechanism for proving efficient instruction. Yet this has been held to be the effect of the statute; the production of a certificate is the only answer to a charge under s. 180(1) of the Act: R. ex rel Brooks v. Ulmer, [1923] 1 W.W.R. 1 (Alta. C.A.) The interaction of these two sections, the appellant argues, prevents him from making full answer and defence to a charge under s. 180. He sees no reason why he should not be able to establish through other appropriate evidence led at trial that the quality of education he is providing for his children is as good, if not better, than that being provided in the public school system. To the extent that the exclusive nature of the proof under s. 143(1) of the Act precludes this, the appellant alleges that it violates his s. 7 right, cannot be saved by s. 1, and must be declared of no force and effect under s. 52.
72. The appellant's submission under s. 7, as he sees it, gains additional force from his submission under s. 2(a) that the one statutory route which is available is not available to him because it violates his freedom of conscience and religion. The two submissions in his mind are clearly related. Be that as it may, I have concluded that s. 143(1) does not violate his s. 2(a) right. Does it violate his s. 7 right?
73. The first hurdle the appellant must overcome on this submission is, I believe, to persuade the Court that his right to "liberty" under s. 7 includes his right to bring up and educate his children. Are parental rights encompassed by the word "liberty" in the section?
74. It is incumbent upon the Court to give meaning to each of the elements, life, liberty and security of the person which make up the right contained in s. 7: Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177 at p. 205; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486. In Re B.C. Motor Vehicle Act none of the parties disputed that imprisonment deprived an individual of his liberty so further elucidation of the concept was unnecessary. Some have suggested that the terms "life, liberty and security of the person" refer to one's physical being and therefore guarantee only freedom from physical harm or restraint: The Queen v. Operation Dismantle Inc., [1983] 1 F.C. 745 (C.A.), per Pratte J., aff'd on other grounds Operation Dismantle Inc. v. The Queen, supra; Horbas v. Minister of Employment and Immigration, [1985] 2 F.C. 359 (T.D.); Parkdale Hotel Ltd. v. Canada (Attorney General), [1986] 2 F.C. 514 (T.D.), per Joyal J.; Groupe des éleveurs de volailles de l'est de l'Ontario v. Canadian Chicken Marketing Agency, [1985] 1 F.C. 280 (T.D.); Patrice Garant, "Fundamental Freedoms and Natural Justice (Section 7)" in Tarnopolsky and Beaudoin eds., The Canadian Charter of Rights and Freedoms : Commentary (1982). My own view is that this is much too niggardly an interpretation of a document proclaiming the fundamental rights and freedoms of the citizen. Liberty is a phrase capable of a broad range of meaning: Singh v. Minister of Employment and Immigration, supra. Certainly, it was given a generous interpretation by the United States Supreme Court in Meyer v. State of Nebraska, 262 U.S. 390 (1923), where it was said at p. 399:
Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness by free men.
In like vein, in Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), the Supreme Court affirmed that "liberty" was "a broad and majestic term" and that "In a Constitution for a free people there can be no doubt that the meaning of `liberty' must be broad indeed" (p. 572).
75. In deciding what rights are included in the definition of liberty, it is helpful, therefore, to remind ourselves that liberty in our Charter means liberty as understood and enjoyed in a free and democratic society. Dickson C.J. had occasion, in interpreting s. 1, to make the following comment:
The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.
(R. v. Oakes, supra, at p. 136.)
76. I believe that the framers of the Constitution in guaranteeing "liberty" as a fundamental value in a free and democratic society had in mind the freedom of the individual to develop and realize his potential to the full, to plan his own life to suit his own character, to make his own choices for good or ill, to be non‑conformist, idiosyncratic and even eccentric ‑‑ to be, in to‑day's parlance, "his own person" and accountable as such. John Stuart Mill described it as "pursuing our own good in our own way". This, he believed, we should be free to do "so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it". He added:
Each is the proper guardian of his own health, whether bodily or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves than by compelling each to live as seems good to the rest.
(J. S. Mill, On Liberty, ed. by Elizabeth Rapaport, Indianapolis, Hackett Publishing Co., 1978, at p. 12).
77. Of course, this freedom is not untrammelled. We do not live in splendid isolation. We live in communities with other people. Collectivity necessarily circumscribes individuality and the more complex and sophisticated the collective structures become, the greater the threat to individual liberty in the sense protected by s. 7.
78. Section 7 does not spell out for us when individual liberty must yield to the collective authority of the state. It does, however, provide that no‑one can be deprived of it "except in accordance with the principles of fundamental justice." This, the appellant says, is what has happened to him. He has exercised his freedom as a parent to choose whether his children attend public school or receive private instruction. He has chosen the latter and is ready, willing and able to show that his instruction meets the School Board's standard of efficiency. But he is prevented from doing so because the state has provided that there is only one way you can do this ‑‑ by a certificate under s. 143(1) of the Act which he does not have.
79. I should perhaps make clear at this point that while I accept the appellant's submission that the liberty interest under s. 7 includes the right as a parent to bring up and educate one's children, I do not agree with him that it is the right to bring up and educate one's children "as one sees fit". I believe that is too extravagant a claim. He has the right, I believe, to raise his children in accordance with his conscientious beliefs. The relations of affection between an individual and his family and his assumption of duties and responsibilities towards them are central to the individual's sense of self and of his place in the world. The right to educate his children is one facet of this larger concept. This has been widely recognized. Article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222 (1950), states in part "Everyone has the right to respect for his private and family life...." Particularly relevant to the appellant's claim is Article 2 of Protocol No. 1 of the Convention:
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
Similarly, in the United States the constitutionally protected status of family relations has been recognized: Griswold v. Connecticut, 381 U.S. 479 (1965); Prince v. Massachusetts, 321 U.S. 158 (1944) at p. 166; Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973) at p. 66, n. 13. Further, the court has specifically protected the right of the parent to educate the child: Meyer v. State of Nebraska, supra; Pierce v. Society of Sisters, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406 U.S. 205 (1972). However, the appellant's proposition that he has a right to educate his children "as he sees fit" goes too far. Having regard to the structure of the Constitution and the values it explicitly identifies as worthy of protection, I believe that the liberty interest protected is the parent's right to educate his children in accordance with his conscientious beliefs and I think this is in fact the right the appellant is asserting in this case.
80. The next question then is whether s. 143(1) impairs the appellant's s. 7 right and, if so, does it do so in accordance with the principles of fundamental justice? The appellant submits that the legislation does impair his right to bring up and educate his children in accordance with his conscientious beliefs because it provides that he cannot do so without obtaining a certificate from the school authorities. Liberty is not liberty if it requires permission. Moreover, he submits, the only purpose of the certificate is to establish that his children are under efficient instruction and there is obviously more than one way to do this. Why is it necessary for the legislature to stipulate only one way?
81. It is, I believe, important in considering the appellant's submissions under s. 7 of the Charter to note that two distinct consequences flow from the failure to obtain a certificate. The first is that the parent loses the right to educate his children in accordance with his conscientious beliefs. This is the main consequence and it is appropriate for the appellant to stress it in attacking the constitutionality of the impugned provisions. The second consequence is that it exposes him to a charge as a "truant parent" under s. 180 of the Act which could result in loss of his physical liberty for non‑payment of fines. The loss of physical liberty is clearly encompassed by liberty: Re B.C. Motor Vehicle Act, supra, and it is in respect of this interest that the appellant advances most strenuously his right to make full answer and defence.
82. Accepting then that the appellant's liberty interests are impaired by the legislation, has this impairment occurred in accordance with the principles of fundamental justice? The combined effect of ss. 143(1) and 180 is that the appellant is precluded at trial from introducing any evidence of efficient instruction other than the certificate. This, he submits, prevents him from making full answer and defence to the charge.
83. This Court had the opportunity to consider the content of the phrase "in accordance with principles of fundamental justice" in Re B.C. Motor Vehicle Act, supra. Lamer J. wrote at p. 503:
...the principles of fundamental justice are to be found in the basic tenets of our legal system. They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system.
He noted further at p. 512:
...they represent principles which have been recognized by the common law, the international conventions and by the very fact of entrenchment in the Charter , as essential elements of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and the rule of law.
The content of the phrase "principles of fundamental justice" remains to be elaborated. Although it may not include all the procedural protections embraced by the phrase "natural justice" at common law, it certainly embraces the notion of procedural fairness articulated by Fauteux C.J. in Duke v. The Queen, [1972] S.C.R. 917. At page 923 he said:
Under s. 2(e) of the Bill of Rights no law of Canada shall be construed or applied so as to deprive him of "a fair hearing in accordance with the principles of fundamental justice." Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity to adequately state his case.
In my view, ss. 143(1) and 180(1) do not give the appellant the opportunity to adequately state his case. Restricting proof of efficient instruction to the introduction of the certificate is an evidentiary limitation. It is a clog on the unimpeded conduct of defence by counsel. It prevents the introduction of evidence that is relevant to the case. It was this injustice that led the trial judge in this case to regard the legislation as in violation of s. 7. I respectfully agree with him.
84. It is now necessary to turn to the application of s. 1. I have elsewhere indicated my opinion that a violation of an individual's rights under s. 7 by legislation which offends the principles of fundamental justice cannot be either reasonable or justified in a free and democratic society: Re B.C. Motor Vehicle Act. Assuming, however, that I am wrong in this, the government, in my view, has failed to justify the violation under s. 1. As was noted in R. v. Oakes, supra, at p. 136, a "stringent standard of justification" lies on the government seeking to uphold the limitation. The government has put forward no justification for the one exclusive means of establishing efficient instruction. They have proffered no argument as to why exclusivity is necessary to achieve the province's objective of insuring adequate instruction for its children. Indeed, as is pointed out by the appellant, the provisions of the school acts of three provinces, British Columbia, Ontario and Quebec, and one territory, the Northwest Territories, all permit the issue of efficient instruction to be decided on evidence in court: School Act, R.S.B.C. 1979, c. 375, s. 113(2)(a); Education Act, R.S.O. 1980, c. 129, s. 20(2)(a); Education Act, R.S.Q. 1977, c. I‑14, s. 257(2); School Ordinance, R.O.N.W.T. 1974, c. S‑3, s. 112(a). The respondent has failed to discharge its burden under s. 1. I would conclude therefore that the appellant's s. 7 right is violated by s. 143(1) and that the section is not saved by s. 1. I do not find it necessary to decide whether the impairment of the right violates the principles of fundamental justice absent s. 180 because of the conclusion I have reached on the combined effect of ss. 143(1) and 180.
85. I would like to address one further point which was clearly a matter of concern to the Court of Appeal. It found that the appellant, not having been denied a certificate under s. 143(1), was not entitled to raise the validity of the legislation "in the abstract". If I understand the Court's thinking correctly, it seems to be that no relief can be given under s. 24(1) on the basis of the invalidity of the legislation per se but only on the basis of some action taken under it. While the appellant could have claimed relief by way of the prerogative writs if he had been denied a certificate, the validity of the legislation can only be brought in issue through a constitutional reference or an application for a declaratory judgment.
86. With respect, I think the Court must be in error in this regard. A remedy must be available under s. 24(1) if legislation is found under s. 52(1) to be inconsistent with the provisions of the Constitution. More specifically, relief must be available at the behest of a person with locus standi if he can show that the legislation per se violates his rights in that it precludes him from doing something he is entitled to do, in this case adduce his own defence evidence to a charge levelled against him. Since he is the subject of the charge and the issue is being raised in the context of the lawsuit, there can surely be no issue as to his locus standi. Perhaps what the Court had in mind was that a person who has been refused a certificate would present a better case to the Court: Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575, per Martland J., at pp. 596‑97. Lieberman J.A. does not say that this was the Court's concern but, if it was, I would certainly not foreclose the appellant on that account.
87. I would allow the appeal, set aside the conviction entered by the Court of Appeal for Alberta and restore the acquittal of the appellant made by the learned trial judge. I would answer the constitutional question as follows:
Question: Whether ss. 142, 143 and 180 of the School Act, R.S.A., 1980, c. 3, are inconsistent with s. 2( a ) or s. 7 of the Canadian Charter of Rights and Freedoms and therefore of no force or effect to the extent of the inconsistencies pursuant to s. 52(1) of the Constitution Act, 1982 ?
Answer: Sections 142, 143 and 180 of the School Act, R.S.A. 1980, c. 3, are not inconsistent with s. 2( a ) of the Canadian Charter of Rights and Freedoms . Those sections are, however, inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms and therefore of no force and effect to the extent of the inconsistencies pursuant to s. 52(1) of the Constitution Act, 1982 .
Appeal dismissed, Wilson J. dissenting.
Solicitors for the appellant: Foster, Wedekind, Calgary.
Solicitor for the respondent: William Henkel, Edmonton.
Solicitor for the intervener the Attorney General for Ontario: Archie Campbell, Toronto.
Solicitors for the intervener the Attorney General of Nova Scotia: Reinhold Endres and Alison Scott, Halifax.
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