Student Rights

AuthorNadya Tymochenko
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.
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.
3 Adler v Ontario, [1996] 3 SCR 609 at para 47.
114 / Nadya Tymochenko
18674 identies 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 oence.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 inO 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 ierent 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 oeri 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.

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