Student Rights
| Author | Nadya Tymochenko |
| Pages | 113-150 |
113
CHAPTER 5
Student Rights
Nadya Tymochenko
This chap ter will ident ify a nd discuss t he rights of s tudents atte nding
elementar y and secondary school in C anada. The topics address ed in this
chapter include st udent right s as they relate to attendance, denom ina-
tional rig hts to education, student r ights pursuant t o the Canadian Charter
of Rights and Freedoms1 (the C harter) such as t he right to freedom of expres-
sion, and the rig ht to freedom of religion. Whi le it is not possible to cover
the legislat ion and caselaw of eac h province in det ail, selected cases and
legislation f rom across Canada wi ll be reviewed.
It is importa nt to note that student r ights and obligat ions in education
are seldom disc rete. For example, the r ight to privac y in the educationa l
setting i s an issue that is addressed i n student discipline wit h respect to
the right of educator s to conduct searches of student belong ings and their
person. Student di scipline wi ll be reviewe d in detai l in another ch apter,
and wil l only tangent ially be addressed as it rel ates to the student rights
addressed in t his chapter.
A. THE RIGHT TO EDUCATION AND THE DUTY TO ATTEND
It is a common misconcept ion that the Const itution Act, 1867 2 and/o r th e
Charter provide a r ight to publicly funded e ducation for elementary a nd sec-
ondary aged c hildren a nd youth.3 While section 93 of the Const itution Act,
1 Canadian Charte r of Rights and Freedoms, Pa rt I of the Constitution Act, 1982, being
Schedule B to t he Canada Act 1982 (UK), 1982, c 11 [Char ter].
2 Constitution Act, 18 67 (UK), 30 & 31 Vict , c 3, reprinted in R SC 1985, App II, No 5.
114 / Nadya Tymochenko
18674 identies that educat ion is a matter under the exclusive jur isdiction
of the provinces of Ca nada, it does not provide a gu arantee that educat ion
will be prov ided without fees or even provided at a ll.5
Each province h as established a pu blicly funded educ ation system th at
is outlined i n provincia l legislat ion. Legislat ion across Canad a provides
for compulsory, publicly f unded education with at tendance requirement s
from the age of ve or six to e ither the age of sixteen or eighteen. I n New
Bruns wick,6 t he Education Act at subsection 8(1) provides that, “Subje ct to
subsection (2) the Min ister shall provide f ree school privileges under t his
Act for every per son who is of school age and who (a) has not gra duated
from high scho ol, and (b) is a resident of the Pr ovince." Compulsory at-
tendance is prov ided for in subsection 15(1):
Except as prov ided in section 16 and subjec t to subsection (2), a child is
required to a ttend school i n the school in wh ich the chi ld is placed by
the superi ntendent concerned unde r section 11 (a) beginn ing on the rst
school day of a given s chool year if, on or b efore the th irty-r st day of
December of th at school year, the chi ld will have att ained the age of ve
years, and (b) unt il the child gradu ates from hig h school or attains the
age of eighteen yea rs.7
Failure by a pare nt to require the att endance of their ch ild, where he or she
is not excused, m ay lead to a provincial oence.8
In Ontario, a st udent is excused from compulsor y attendance where
he or she is provided wit h an altern ative educationa l program.9 Compul-
sory attend ance inO ntario extends to the age of eight een, and begi ns at
the age of six,10 un less the stu dent is register ed and attending ful l day
kinderga rten, in which case the dut y begins at the age of four.11 Howeve r,
parents do not have to reg ister children for k indergarten.12 Therefor e, the
duty of attenda nce once they are registere d seems hollow since the par ent
4 Constitution Act, 1867, above note 2.
5 Ibid, s 93, w hich states th at “in and for each P rovince the L egislatur e may exclu-
sively mak e Laws in relation t o Education . . . .”
6 Education A ct, SNB 1997, c E-1.12, s 8(1).
7 Ibid, s 15(1).
8 Ibid, s 15(7).
9 Ibid, s 2 1(2).
10 Education Ac t, RSO 1990, c E.2, s 21(2) [Ontario Edu cation Act].
11 Ibid, s 21(4).
12 Ibid.
Student Rights / 115
can withd raw the child from s chool and wait unti l the age of six to registe r
their chi ld again.13
These right s and duties with respect to t he provision of education for
children a nd youth are consistent with t he United Nations Convention on
the Rights of the Child, which provides at A rticle 28 that:
1. States Par ties recognize the ri ght of the chi ld to education, and with
a view to achie ving th is right pr ogressively a nd on the basis o f equal
opportun ity, they shall , in particu lar:
(a) Make pri mary educat ion compulsory and av ailable free to a ll;
(b) Encourage the development of d ierent form s of secondar y educa-
tion, includ ing general and vocat ional education, mak e them avail-
able and accessible to e very ch ild, and ta ke appropria te measures
such as the i ntroduct ion of free educat ion and oeri ng nanci al
assista nce in the case of need .14
The compulsor y attendance prov isions as set out in the legislation i n Al-
berta were the s ubject of a Charter cha llenge in 1986 in R v Jones.15 Mr Jones
was charged w ith thre e counts of tru ancy subjec t to subsection 180(1)
of the Alberta School Act 16 with respec t to each of his three children. He
eventual ly appealed hi s charges to the Supreme Court of Canad a on the
grounds th at the compulsor y attenda nce provisions in t he Act were con-
trary to h is right to freedom of rel igion and the principles of f undamental
justice, as g uaranteed by the Char ter.17
The compulsor y attendance provisions in t he Act provided exception
for those chi ldren attending a priv ate school approved by the Depar tment
of Education. Mr Jones operated a pri vate school, educating approxim ate-
ly twenty st udents, including his ow n children. However, he argued t hat
it was contrar y to his religious belief s to apply for approval of his private
school “because . . . requesti ng the state for per mission to do what he i s
authorized by G od to do would, he asser ts, violate h is religiou s convic-
ti on s.” 18 The constit utional question stated for t he Court was whether the
compulsory at tendance provi sions and the pri vate school approval pro -
cess was contrar y to subsection 2(a) (freedom of religion) or sect ion 7 (sec-
urity of the p erson) of the Charter.
13 Ibid, s 1(1).
14 Convention on the Rights of the C hild, 20 November 1989, 1577 UN TS 3, art 28.
15 [1986] 2 SCR 284 [Jones].
16 Alberta Schoo l Act, RSA 1980, c S-3 [now RSA 2000, c S-3].
17 Charter, above note 1.
18 Jones, above note 15 at 291.
To continue reading
Request your trial