Section 121 of the Public Schools Act of British Columbia deals with the requirement for compulsory public school attendance in this province barring certain exemptions which it lists.
Though it is possible to question the whole principle of compulsory public school education, for example from a freedom of religion standpoint, this paper will not address that general issue. Its purpose is only to point out two particular aspects of the section that violate civil liberties principles and to recommend that these two deficiencies be overcome through legislative amendment.
The problems created by the present section are:
There is no way, other than enrolling a child in the chosen non-public school and awaiting criminal prosecution (at a risk if convicted of fines of $10 per day of the child’s absence from public school), for the parent or guardian to obtain an authoritative ruling on whether a given school provides education which is “satisfactory” as required (S.121(2)(a)).
In the event of prosecution, the test of whether or not the quality of education offered in a school other than a public school meets the statutory minimum is impossibly vague, the accused parent or guardian being called upon to give proof that the child is being educated “by some other means satisfactory to the Justice or tribunal before whom the prosecution takes place” (S.121(2)(a)) or that the child has “reached a standard of education equal to or higher than” that provided in public schools readily accessible from the child’s residence (S.121(2)(d)).
In short, section 121 creates the criminal offence of not attending a public school and builds in a presumption of guilt in the parent(s) or guardian(s) of a child educated alternatively when public school education is available.
Though the section has seldom been used, it poses a continuing threat to free schools and other methods of alternative education. There is no objective test by which they can determine whether the education they offer meets the statutory requirements, so they exist in constant peril of prosecution.
Clearly the worse feature of the present section is that it places the onus upon parents or guardians to prove that they are not responsible for the criminal offence of a child’s non-attendance at public school. This violates a basic principle of justice, namely that a person is to be presumed innocent until or unless proven guilty.
The B.C. Civil Liberties Association therefore urges that section 121 of the Public Schools Act of British Columbia be amended to place the onus on the Crown to prove by an objective test that education offered as an alternative to compulsory public schooling is of an unacceptably low standard; and, if such cannot be proven, the alternative education be presumed to meet the requirements of the Act.
Public Schools Act S.121
(Compulsory Public School Attendance)
(1) Subject to the exemptions under subsection (2), every child over the age of seven years and under the age of fifteen years shall attend some public school during the regular school-hours every school-day, and every parent or guardian who fails or neglects to cause any such child under his care to attend some public school during the regular school-hours every school-day is guilty of an offence and is liable, on summary convictions, to a fine not exceeding ten dollars and each day’s continuance of such failure or neglect shall constitute a separate offence.
(2) Upon the prosecution of any person under this section for an offence with respect to the non-attendance of any child at public school, proof of any of the following exemptions shall constitute a good defence:
- That a child is being educated by some other means satisfactory to the Justice or tribunal before whom the prosecution takes place;
- That the child is prevented from attending school by sickness;
- That there is no public school open which the child can attend within a distance of three miles, measured according to the nearest passable road, from the residence of the child, and that in such a case the Board has not provided a conveyance service within a distance of two miles, measured according to the nearest passable road, from the residence of the child to take the child to and from the school to which he is assigned by the Board;
- That the child has reached a standard of education equal to or higher than the standard to be attained in any public school within a distance of three miles, measured according to the nearest passable road from the residence of the child, and that the Board has made no provision for his conveyance to and from school which provides a higher standard of education than that already attained by him.
(3) No person shall be prosecuted for an offence under this section without the consent of the Board of the school district in which offence is alleged to have been committed, or of some person appointed by the Board to represent the Board for the purposes of this section, or of the Minister.