Module Two: "Students and the Law" (Educational Law Course Notes)

 Module Two: Students and the Law

Section One: Guarantee of Rights and Freedom

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

Oakes Test

1. The objective served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom. There must be compelling societal need to do so.

2. The burden of proof lies with the party seeking to restrict the right or freedom

3. The measure should be reasonable, fair, and impair the right or freedom as little as possible

Ground for Limiting Students’ Charter Rights:

- The educator acting in loco parentis having been delegated either explicitly, or implicitly the parents’ rights, duties and responsibilities

- The educator acting in parens patriae, as government in order to protect the state’s interest in the health and welfare of students, or to do what is in the best interest of the child under the circumstances.

- The educator acting as government under common or statutory law to maintain order and discipline in schools

- The educator acting as government law enforcement agents

Legal test for Limiting Student’s Charter Rights

1. Is the limitation a reasonable one, legally prescribed by school authorities and necessary to the maintenance of an environment that is conducive to the educational mission of the school, or preventing an activity that is potentially disruptive of that environment?

2. Does the activity pose or have the potential to pose a threat to the creation of a safe, orderly school environment?

3. Is there a compelling societal interest to be met?

4. Does the activity interfere or have the potential to interfere with a students’ right to attend a school system that is from bias, prejudice and intolerance?

5. Is the imposition of the restriction a proportional means of achieving the objective?

Ontario Public Schools

Legal Principals:

- Freedom of religion means the freedom to hold, profess, and manifest religious beliefs without fear of hindrance or reprisal and the absence of coercion and restraint

- The majority religion cannot be imposed on religious minorities

- The Charter protects the freedom of non-believers to abstain from participation in any religious practice

- Having non-believers absent during religious practices compels them to make a religious statement, stigmatizes objectors as non-conformists and sets them apart from their fellow students and such an infringement is neither trivial nor insubstantial.

Guidelines for Determining if an Activity is Within the Charter

1. Does the activity promote the study of all religions and not the practice of any one religion?

2. Does the activity expose students to all religious views and not impose any particular religious views?

3. Is the objective of the activity instructional rather than in doctrinal?

4. Does the activity promote an academic approach to all religions and not a devotional approach to any one religion?

5. Does the activity promote student awareness of all religions and not pressure students to accept any one religion?

6. Does the activity constitute a study of what all people believe, and not what to believe?

7. Does the activity provide information about all religions and not provide an inducement to conform to any one religion?

Schools can promote the study of all religions but not the study of any specific religion.

Free Speech in Canada

Basic Principles:

Freedom of expression is guaranteed in the constitution so that “everyone can manifest their thoughts, opinions, beliefs, indeed all expression of the heart and mind, however unpopular, distasteful, or contrary to the mainstream”.  But there are exceptions: Child Pornography, Hate Speech, Liable/ Defamation.

Expression meant any acts or words intended to convey meaning.