R. v. Powell and Powell (No. 2), (1985) 63 A.R. 43 (ProvCt)

• Judge: Litsky, J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: July 16, 1985
• Citations: (1985), 63 A.R. 43 (ProvCt)

R. v. Powell (1985), 63 A.R. 43 (ProvCt)

MLB headnote and full text

R. v. Powell and Powell

CFC 6245

Indexed As: R. v. Powell and Powell (No. 2)

Alberta Provincial Court

Criminal Division

Litsky, J.

July 16, 1985.

Summary:

A husband and wife were charged with two counts of truancy respecting their two children contrary to s. 180(1) of the School Act. At trial the husband and wife challenged the constitutionality of various provisions of the School Act, arguing that the provisions offended the Canadian Charter of Rights and Freedoms and the Alberta Bill of Rights. The Alberta Provincial Court upheld the constitutional validity of the impugned sections and convicted the husband and wife of truancy. [For other related proceedings see (1984), 51 A.R. 191].

Civil Rights - Topic 385

Freedom of religion - Infringement of - Compulsory education - Parents were charged with truancy under the Alberta School Act for keeping their children out of school - They challenged the constitutionality of the compulsory attendance provisions of the School Act and the provisions requiring home study programs to be approved by state education authorities, arguing that these provisions violated their right to freedom of conscience and religion as guaranteed by s. 2(a) of the Canadian Charter of Rights and Freedoms and s. 1 of the Alberta Bill of Rights - The Alberta Provincial Court in convicting the parents held that the impugned provisions did not offend s. 2(a) of the Charter or s. 1 of the Bill of Rights - See paragraphs 11 to 25.

Civil Rights - Topic 3186

Trials - Due process - Fundamental justice and fair hearings - Administrative and non-criminal proceedings - Right to present argument - School Act - Approval of home study program - The School Act, s. 143(1)(a) permitted a child to be excused from school where a state education official certified that the child was under efficient home instruction - Parents, whose home study program was not approved, challenged the constitutionality of s. 143(1)(a), arguing that the section which allegedly limited evidence of efficient home instruction to an official certificate contravened s. 7 of the Charter, which extended to the parents the right to make full answer and defence - The Alberta Provincial Court rejected the parents' argument and found no contravention of s. 7 - See paragraphs 26 to 35.

Civil Rights - Topic 3192

Trials - Due process - Fundamental justice and fair hearings - Administrative and non-criminal proceedings - Procedure contrary to fundamental justice - School Act - Approval of home study program - The School Act, s. 143(1)(a) permitted a child to be excused from school where a state education official certified in writing that the child was under efficient home instruction - Parents, whose home study program was not approved, challenged the constitutionality of s. 143(1)(a), arguing that their basic right to bring up their children was being removed not in accordance with the principles of fundamental justice contrary to s. 7 of the Charter - The Alberta Provincial Court rejected the parents' argument and found no contravention of s. 7 - See paragraphs 26 to 35.

Education - Topic 5108

Students - Attendance - Compulsory - Exceptions - Proof of efficient instruction - The Alberta School Act required compulsory school attendance in absence of, inter alia, official approval of a home study program - The Alberta Provincial Court held that the relevant provisions of the Act were not contrary to the freedom of religion provisions of the Canadian Charter of Rights and Freedoms (s. 2(a)) or the Alberta Bill of Rights (s. 1), nor contrary to s. 7 of the Charter (the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice).

Education - Topic 5116

Students - Attendance - Offences - Truancy - Responsibility of parents - Parents were convicted of two counts of truancy under s. 180(1) of the School Act for keeping their two children home from school - The Alberta Provincial Court imposed a fine of $10 on each count for both parents - See paragraph 36.

Cases Noticed:

R. v. Powell and Powell (1984), 51 A.R. 191; 30 Alta. L.R.(2d) 83, ref'd to. [para. 3].

R. v. Jones (1983), 43 A.R. 64; 29 Alta. L.R. 349 (Alta. P.C.), revsd. (1984), 57 A.R. 266, not folld. [paras. 14, 27].

R. v. Wiebe, [1978] 3 W.W.R. 36, not folld. [para. 16].

Re M (L and K) (1978), 6 R.F.L.(2d) 297, appld. [para. 19].

Re D. (1982), 22 Alta. L.R.(2d) 228 (Alta. P.C.), appld. [para. 20].

R. v. Big M Drug Mart Ltd., [1985] 3 W.W.R. 481; 58 N.R. 81; 60 A.R. 161 (S.C.C.), appld. [para. 24].

Braunfeld v. Brown (1961), 366 U.S. 599, ref'd to. [para. 24].

Southam Inc. v. Hunter (1983), 42 A.R. 108; 24 Alta. L.R. 307 (C.A.), ref'd to. [para. 31].

R. v. Kind (1984), 50 Nfld. and P.E.I.R. 332; 149 A.P.R. 332, not folld. [para. 33].

Statutes Noticed:

Alberta Bill of Rights, sect. 1 [para. 2].

Canadian Charter of Rights and Freedoms, sect. 2(a), sect. 7 [para. 2].

School Act, R.S.A. 1980, c. S-3, sect. 142, sect. 143 [para. 4]; sect. 143(1)(a) [paras. 2, 4]; sect. 180 [paras. 1, 4].

Counsel:

W. Henkel, Q.C., and K. Tottrup for the Department of Attorney General;

N. McDermid, for the accused.

This case was heard before Litsky, J., of the Alberta Provincial Court, Criminal Division, who delivered decision on July 16, 1985: