R. v. Jones, (1986) 73 A.R. 133 (SCC)

• Judge: Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ.
• Court: Supreme Court (Canada)
• Case Date: October 09, 1986
• Jurisdiction: Canada (Federal)
• Citations: (1986), 73 A.R. 133 (SCC)

R. v. Jones (1986), 73 A.R. 133 (SCC)

MLB headnote and full text

Thomas Larry Jones v. Her Majesty The Queen and Attorney General for Ontario and Attorney General for Nova Scotia

(18962)

Indexed As: R. v. Jones

Supreme Court of Canada

Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ.

October 9, 1986.

Summary:

A pastor refused to send his children to public school and educated them along with 20 other children in a school program he called the "Western Baptist Academy". He was required however by s. 142(1) of the School Act (Alta.) to send his children to public school, unless he obtained a certificate from the education authorities certifying that his children were receiving sufficient instruction at home or elsewhere (s. 143(1)). Section 180 of the Act imposed penalties for violation of the Act. The pastor was therefore charged with three counts of truancy respecting his own children under s. 180. The Alberta Provincial Court, in a judgment reported 43 A.R. 64, acquitted the accused, because the Crown failed to prove a lack of efficient instruction. The Attorney General of Alberta appealed on the ground that s. 7 of the Charter was put in issue without the required notice to the Attorney General.

The Alberta Court of Appeal, in a decision unreported in this series of reports, allowed the appeal and remitted the matter to the trial judge for further argument on notice.

After a rehearing the Alberta Provincial Court, in a decision reported 49 A.R. 135, affirmed its acquittal of the pastor. The Crown appealed by way of stated case.

The Alberta Court of Appeal, in a decision reported 57 A.R. 266, allowed the appeal, set aside the acquittals and entered convictions. The court fined the pastor $5 on each count. The pastor appealed his convictions posing the following constitutional 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?" The Supreme Court of Canada, Wilson, J., dissenting, dismissed the pastor's appeal and affirmed his convictions. The full court answered the constitutional question as it concerned s. 2(a) in the negative (i.e. that the School Act sections were not invalid because of s. 2(a), the freedom of religion provision). The court, Wilson, J., dissenting, answered the question as it concerned s. 7 in the negative also (i.e. that the School Act sections were not invalid because of s. 7 which guaranteed that liberty would not be denied an individual except in accordance with the principles of fundamental justice).

Wilson, J., held that the School Act sections were inconsistent with s. 7, could not be saved by s. 1 of the Charter and therefore were of no force and effect. Therefore on the basis of s. 7 of the Charter, Wilson, J., would have allowed the appeal, set aside the convictions and restored the acquittals.

Civil Rights - Topic 385

Freedom of religion - Infringement of - Compulsory education - The Alberta School Act, s. 142(1) required children to attend public schools - Section 180(1) made it an offence not to comply with s. 142(1) and imposed penalties - Section 143(1)(a) allowed a pupil to be excused from compulsory attendance without penalty if his guardian obtained a certificate from the appropriate education authorities certifying that the pupil was under sufficient instruction at home or elsewhere - Wilson, McIntyre, Beetz and Le Dain, JJ., of the Supreme Court of Canada held that these sections of the School Act did not infringe the freedom of religion provision of the Charter (s. 2(a)) - See paragraphs 53 to 68 - Dickson, C.J.C., La Forest and Lamer, JJ., held that the effect of the School Act provisions constituted some interference with the freedom of religion as guaranteed by s. 2(a), but any such interference was demonstrably justified within the meaning of s. 1 of the Charter - See paragraphs 16 to 33, 51 - In the result, the court held that ss. 142, 143 and 180 were not invalid because of s. 2(a) of the Charter.

Civil Rights - Topic 686

Liberty - Principles of fundamental justice - Deprivation of - What constitutes - Compulsory school attendance - The Alberta School Act, s. 142(1) required children to attend public schools - Section 180 of the Act imposed penalties for violations of s. 142(1) - Section 143(1)(a) allowed a pupil to be excused from compulsory attendance if his guardian obtained a certificate from the appropriate education authorities certifying that the pupil was under sufficient instruction at home or elsewhere - Dickson, C.J.C., McIntyre, Beetz, Le Dain, and La Forest, JJ., of the Supreme Court of Canada held that these sections of the School Act were not contrary to s. 7 of the Charter (the right not to be deprived of one's liberty except in accordance with the principles of fundamental justice) - See paragraphs 34 to 49, 51, 52 - Lamer, J., concurred but expressed some reservations on the validity of s. 180(1) if it was construed as imposing imprisonment for an absolute liability offence - See paragraph 54 - Wilson, J., dissenting on this point, opined that s. 143 violated the right to liberty guaranteed by s. 7 of the Charter in a manner that offended the principles of fundamental justice and that s. 143 could not be saved by s. 1 of the Charter - See paragraphs 69 to 85.

Civil Rights - Topic 3193

Trials, due process, fundamental justice and fair hearings - Administrative and non-criminal proceedings - Procedures not contrary to the principles of fundamental justice - Compulsory school attendance - [see Civil Rights - Topic 686 above].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law, s. 1 - Section 1 v. s. 7 (principles of fundamental justice) - Wilson, J., of the Supreme Court of Canada in a dissenting opinion, opined that a violation of an individual's rights under s. 7 of the Charter by legislation which offends the principles of fundamental justice cannot either be reasonable or justified in a free and democratic society - See paragraph 82.

Education - Topic 5107

Students - Attendance - Compulsory - General - Whether compulsory attendance violates freedom of religion provision of Charter, s. 2(a) - [see Civil Rights - Topic

385 above].

Education - Topic 5107

Students - Attendance - Compulsory - General - Whether compulsory attendance provisions of Alberta School Act contrary to principles of fundamental justice, s. 7 of Charter - [see Civil Rights - Topic 686 above].

Cases Noticed:

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; [1985] 3 W.W.R. 481; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321, refd to. [paras. 17, 32, 59, 60, 65].

Brown v. Board of Education of Topeka (1954), 347 U.S. 483, refd to. [para. 22].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [paras. 29, 32, 43, 45].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R. (4th) 200; 50 C.R.(3d) 1; 24 C.C.C. (3d) 321, refd to. [paras. 29, 68, 73, 82].

Sheridan Road Baptist Church v. Department of Education (1984), 348 N.W. 2d 263, refd to. [paras. 31, 46].

New Jersey State Board of Higher Education v. Board of Directors of Shelton College (1982), 448 A. 2d 988, refd to. [para. 31].

Meyer v. State of Nebraska (1923), 262 U.S. 390, refd to. [paras. 36, 72, 77].

State v. Shaver (1980), 294 N.W. 2d 883, refd to. [para. 42].

Brooks v. Ulmer, R. ex rel, [1923] 1 W.W.R. 1 (Alta. S.C.A.D.), refd to. [paras. 47, 69].

R. v. Weibe, [1978] 3 W.W.R. 36 (Alta. Prov. Ct.), refd to. [para. 47].

Committee for Public Education and Religious Liberty v. Regan (1980), 444 U.S. 646, refd to. [paras. 61, 65].

Board of Education of Central School District No. 1 v. Allen (1968), 392 U.S. 236, refd to. [para. 61].

Wolman v. Walter (1977), 433 U.S. 229, refd to. [para. 61].

Everson v. Board of Education (1947), 330 U.S. 1, refd to. [para. 61].

Lemon v. Kurtzman (1971), 403 U.S. 602, refd to. [para. 61].

Washington v. Davis (1976), 426 U.S. 229, refd to. [para. 65].

Braunfeld v. Brown (1961), 366 U.S. 599, refd to. [para. 66].

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1, refd to. [para. 66].

Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 72].

Reference re Section 94(2) of the Motor Vehicle Act (B.C.), [1985] 2 S.C.R. 486; 63 N.R. 266; [1986] 1 W.W.R. 481, refd to. [para. 72, 79, 81, 82].

Operation Dismantle Inc. et al. v. Canada et al., [1983] 1 F.C. 745; 49 N.R. 363 (C.A.), refd to. [paras. 72, 79, 81, 82].

Horbas v. Minister of Employment and Immigration, [1985] 2 F.C. 359 (T.D.), refd to. [para. 72].

Parkdale Hotel Ltd. v. Attorney General of Canada (1986), 27 D.L.R.(4th) 19 (T.D.), refd to. [para. 72].

Groupe des eleveurs de volailles de l'est de l'Ontario v. Canadian Chicken Marketing Agency, [1985] 1 F.C. 280 (T.D.), refd to. [para. 72].

Board of Regents v. Roth (1972), 408 U.S. 564, refd to. [para. 72].

Griswold v. Connecticut (1965), 381 U.S. 479, refd to. [para. 77].

Prince v. Massachusetts (1944), 321 U.S. 158, refd to. [para. 77].

Paris Adult Theatre 1 v. Slaton (1973), 413 U.S. 49, refd to. [para. 77].

Pierce v. Society of Sisters (1925), 268 U.S. 510, refd to. [para. 77].

Wisconsin v. Yoder (1972), 406 U.S. 205, refd to. [para. 77].

Duke v. The Queen, [1972] S.C.R. 917, refd to. [para. 81].

Borowski v. Minister of Justice of Canada and Minister of Finance of Canada, [1981] 2 S.C.R. 575; 39 N.R. 331, refd to. [para. 84].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, sect. 1, sect. 2(a), sect. 7.

Education Act, R.S.O. 1980, c. 129, sect. 20(2)(a) [para. 82].

Education Act, R.S.Q. 1977, c. I-14, sect. 257(2) [para. 82].

European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), 213 U.N.T.S. 222, sect. 8(1) and Protocol No. 1, sect. 2 [para. 77].

School Act, R.S.A. 1980, c. S-3, sect. 142(1) [para. 3]; sect. 143(1)(a), sect. 143(1)(e) [para. 4]; sect. 180(1) [para. 7].

School Act, R.S.B.C. 1979, c. 375, sect. 113(2)(a) [para. 82].

School Ordinance, R.O.N.W.T. 1974, c. S-3, sect. 112(a) [para. 82].

Authors and Works Noticed:

Garant, Patrice, "Fundamental Freedoms and Natural Justice (Section 7)", In The Canadian Charter of Rights and Freedoms: Commentary, Edited by Walter S. Tarnopolsky and Gerald-A. Beaudoin, 1982, pp. 257-290 [para. 72].

Mill, John Stuart, On Liberty (1978) [para. 74].

Tarnopolsky and Beaudoin, The Canadian Charter of Rights and Freedoms: Commentary, 1982, pp. 257-290 [para. 72].

Counsel:

Philip E. Carr, for Jones;

William Henkel, Q.C., for the Crown;

Lorraine E. Weinrib, for the Attorney General of Ontario, intervenant;

Reinhold Endres and Alison Scott, for the Attorney General of Nova Scotia, intervenant.

Solicitors of Record:

Foster, Wedekind, Calgary, for the appellant;

William Henkel, Edmonton, for the respondent;

Archie Campbell, Toronto, for the intervener the Attorney General for Ontario;

Reinhold Endres and Alison Scott, Halifax, for the intervener the Attorney General of Nova Scotia.

This appeal was heard on November 19, 1985, before Dickson, C.J.C., Beetz, McIntyre, Lamer, Wilson, Le Dain and La Forest, JJ., of the Supreme Court of Canada.

The following judgment of the Supreme Court of Canada was rendered on October 9, 1986, including the following opinions:

La Forest, J. (Dickson, C.J.C., concurring) - see paragraphs 1 to 50;

Lamer, J. - see paragraphs 51, 52;

McIntyre, J. (Beetz and Le Dain, JJ., concurring) - see paragraphs 53 to 55;

Wilson, J., dissenting - see paragraphs 56 to 85.