R. v. Jones

R. v. Jones
Collection
Supreme Court Judgments
Date
1986-10-09
Report
[1986] 2 SCR 284
Case number
18962
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Alberta
Subjects
Constitutional law
Notes
SCC Case Information: 18962
Decision Content
The Queen v. Jones, [1986] 2 S.C.R. 284
Thomas Larry Jones Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General for Ontario and the Attorney General of Nova Scotia Interveners
indexed as: r. v. jones
File No.: 18962.
1985: November 19; 1986: October 9.
Present: Dickson C.J. and Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for alberta
Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of religion ‑‑ Schools ‑‑ Right of parents to educate their children ‑‑ Children not sent to public schools on religious grounds ‑‑ Home instruction ‑‑ Whether provincial compulsory education legislation contravenes appellant’s freedom of religion ‑‑ Canadian Charter of Rights and Freedoms, ss. 1 , 2 (a) ‑‑ School Act, R.S.A. 1980, c. S‑3, ss. 142(1), 143(1).
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 wit