R. v. Bienert, (1985) 64 A.R. 10 (ProvCt)

Court:Provincial Court (Alberta)
Case Date:June 24, 1985
Jurisdiction:Alberta
Citations:(1985), 64 A.R. 10 (ProvCt)
 
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R. v. Bienert (1985), 64 A.R. 10 (ProvCt)

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R. v. Bienert

Indexed As: R. v. Bienert

Alberta Provincial Court

Patterson, A.C.P.C.J.

June 24, 1985.

Summary:

An associate pastor of the Fox Creek Community Chapel was charged with operating a private school that was not approved by the Minister of Education, contrary to s. 10(3) of the Department of Education Act. The pastor alleged that the government had no authority to approve church-operated schools and particularly challenged s. 10 of the Act on the ground that it contravened, inter alia, the freedom of religion guaranteed in the Alberta Bill of Rights and the freedom of conscience and religion guaranteed in the Canadian Charter of Rights and Freedoms.

The Alberta Provincial Court held that s. 10 did not contravene the freedom of religion in the Alberta Bill of Rights. The Provincial Court held that s. 10 prima facie contravened the freedom of conscience and religion in the Charter, but that the provisions were a reasonable limitation prescribed by law pursuant to s. 1 of the Charter. Accordingly, the court convicted the pastor.

Civil Rights - Topic 384

Freedom of religion - Infringement of - Governmental authority over education - S. 10 of the Alberta Department of Education Act gave the government (Minister of Education) authority over private schools - Accordingly, the Alberta Provincial Court held that church-operated schools, being private schools, were required to have the Minister's approval - The court held that the provisions of s. 10 did not violate the right to freedom of religion in s. 1(c) of the Alberta Bill of Rights - See paragraphs 12 to 28.

Civil Rights - Topic 384

Freedom of religion - Infringement of - Governmental authority over education - S. 10 of the Alberta Department of Education Act gave the government (Minister of Education) authority over private schools - The Alberta Provincial Court held that church-operated schools, being private schools, were required to have the Minister's approval - The court held that the provisions of s. 10 prima facie violated the right to freedom of conscience and religion in s. 2(a) of the Charter - The court held, however, that the requirement of governmental approval for church schools was a reasonable limitation prescribed by law - See paragraphs 29 to 50.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law - S. 10 of the Alberta Department of Education Act gave the government (Minister of Education) authority over private schools - The Alberta Provincial Court held that church-operated schools, being private schools, were required to have the Minister's approval - The Alberta Provincial Court held that the provisions of s. 10 prima facie violated the right to freedom of conscience and religion in s. 2(a) of the Charter - The court held, however, that the requirement of governmental approval for church schools was a reasonable limitation prescribed by law - See paragraphs 29 to 50.

Cases Noticed:

In Re Meade (1871), Law Rep. 5 Ir. Eq. 103, ref'd to. [para. 6].

Robertson and Rosetanni v. The Queen, [1964] 1 C.C.C. 1 (S.C.C.), ref'd to. [para. 14].

R. v. Wiebe, [1983] 3 W.W.R. 36 (Alta. Prov. Ct.), dist. [para. 25].

Southam Inc. v. Hunter (1984), 55 N.R. 241; 55 A.R. 291; 41 C.R.(3d) 97 (S.C.C.), ref'd to. [para. 30].

Min. of Home Affairs v. Fisher, [1980] A.C. 319, ref'd to. [para. 30].

R. v. Big M Drug Mart Ltd. (1985), 58 N.R. 81; 60 A.R. 161 (S.C.C.), ref'd to. [para. 32].

A.G. Quebec v. Quebec Assoc. of Protestant School Boards, [1984] 2 S.C.R. 66; 54 N.R. 196, ref'd to. [para. 34].

Statutes Noticed:

Department of Education Act, R.S.A. 1980, c. D-17, sect. 10 [para. 10]; sect. 10(1) [para. 3].

Alberta Bill of Rights, R.S.A. 1980, c. A-16, sect. 1(c) [para. 12].

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [paras. 42-43]; sect. 2(a) [paras. 41, 57].

School Act, R.S.A. 1980, c. S-3, sect. 142(1) [para. 11].

School Ordinance, O.C. 1905, c. 75, sect. 12, sect. 13, sect. 41 [para. 16]; sect. 137, sect. 138 [para. 17].

Department of Education Amendment Act, S.A. 1945, c. 21, sect. 7a [para. 19].

Department of Education Amendment Act, S.A. 1976, c. 14, sect. 4 [para. 21].

Department of Education Amendment Act, S.A. 1979, c. 37, sect. 8(1) [para. 22].

Constitution Act, 1867, sect. 93 [paras. 52, 54, 57].

Authors and Works Noticed:

McGinnis, Canada, A Political and Social History [para. 58].

Counsel:

J. Jacques, for the Crown;

W. Henkel, Q.C., for Attorney General of Alberta, on the constitutional issue;

P. Carr, for the defence.

This charge was heard before Patterson, A./C.P.C.J., of the Alberta Provincial Court, whose decision was delivered at Fox Creek, Alberta, on June 24, 1985.

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