Toward a Healthy Society

LexView 76.0 - Whose Children Are They, Anyway?

From the Archived "LexView" Series

In February, the Supreme Court of Canada ruled against a Catholic family seeking to exempt their children from Quebec's ethics and religious culture school curriculum. The decision has touched off debate about parental rights and the limits of religious freedom. What has been overlooked, writes LexView's Kevin Boonstra, is that the high court judgement was on an entirely different matter than the parents were arguing.

It is true that children will become exposed to realities and belief systems that differ from their own. That is a fact of life. However, who gets to decide the extent and timing of that exposure? Do the dictates of the ministry of education prevail, or should dissenting parents be accommodated?

S.L. v. Commission Scolaire des Chênes
2012 SCC 7
Supreme Court of Canada

Date of Decision: February 17, 2012
Date of Issue: March 15, 2012

In this issue:

  1. Key Terms
  2. Summary of Facts
  3. Significant Issues
  4. Decision and the Court's Reasons
  5. LexView Commentary
    1. Validity of the ERC Program
    2. Accommodating Parents
    3. The Burden and Problem of Proof

Key Terms:

Freedom of religion; section 2(a); Charter of Rights and Freedoms; education; children; parents; schools; Charter of human rights and freedoms; accommodation

Summary of Facts:

In 1964, the Quebec government took charge of public education, which until then had been an area dominated by religious communities. For the next 30 years, the denominational school system still remained in place. In 1995, the Quebec government created a commission that recommended a far-reaching review of educational programs.

In 1997, adjustments were made and, because of the change to s.93A of the Constitution Act, 1867, abolishing Quebec's denominational school boards became constitutionally possible. Instead of religion, schools would be organized on the basis of language.

A task force on the role of religion in public schools was set up, which recommended that religion be studied from a cultural perspective. A formal secularization program for public schools began.

As part of this initiative, an Ethics and Religious Culture (ERC) program was introduced and made possible by legislation in 2005. It has two components: instruction in ethics and instruction in religious culture. With respect to ethics, it teaches students to "make judicious choices" and is not intended to "propose or impose moral rules, nor to study philosophical doctrines." Religious culture instruction aims at fostering an understanding of several religious traditions, including prominence for the historical and cultural importance of Catholicism and Protestantism in Quebec history.

The ERC was implemented gradually. Until 2008, there were still Protestant and Catholic programs of religious and moral instruction in Quebec schools. In that year, the ERC program became mandatory for all students.

The appellants, known only as S.L. and D.J., are Catholic parents of school-aged children. They applied in 2008 to their school district, Commission Scolaire des Chênes, to exempt their children from the ERC course on the basis that it infringed their freedom of conscience and religion under s.2(a) of the Charter of Rights and Freedoms and under the Charter of human rights and freedoms of Quebec. They argued that the mandatory nature of the ERC course interfered with their ability to teach their children in accordance with their religious beliefs.

The school district denied the exemption, compelling the children to participate in the ERC program. The parents sought court orders exempting their children and declaring that the ERC program violated their constitutional freedom of religion rights. They made a number of arguments, including that they were losing the ability to choose an education consistent with their own moral and religious principles, that the state was interfering with their children's religious faith and that the children were being exposed to the philosophical trend advocated by the state, namely moral relativism.

The trial judge held that the ERC program involved an objective presentation of various religions and did not put them in "an obligatory and coercive situation." He dismissed their application for an exemption. They appealed to the Quebec Court of Appeal, which dismissed their appeal. They then appealed to the Supreme Court of Canada.

Significant Issues:

Public schools in Canada are a microcosm of our diverse and multicultural society. Distinct from the wider society, schools are populated with the most impressionable Canadians. They are compelled by law to attend. This creates a flashpoint for disputes and differences involving religious belief and moral education.

In this context, to what extent are parents entitled to an exemption for their children when they disagree with moral education promulgated in the public schools? Will we defer to the wishes of parents in the upbringing of their children, or will we put parents to strict standards of proof of interference before we accommodate them?

Decision and the Court's Reasons:

Justice Deschamps wrote the decision of the court on behalf of herself and 6 other judges. Justice LeBel wrote a minority decision on behalf of himself and Justice Fish.

The majority focused on the arguments that the religious freedom rights of the parents (as distinct of those of their children) had been infringed. They held that the parents had not shown that the ERC program interfered with their ability to pass their faith onto their children.

The court accepted that "absolute neutrality" does not exist in the school system when it comes to moral education. It held that such neutrality is not necessary. It is sufficient if the "state neither favours nor hinders any particular religious belief" and "shows respect for all postures towards religion."

The majority focused on the constitutional acceptability of the ERC program itself. They found that "exposing children to a comprehensive presentation of various religions without forcing children to join them" does not constitute indoctrination of students. In the result, they held that the ERC program is within the constitutional power of the Quebec government.

The majority then summarily discounted the parents' concerns, finding that they remained free to pass on their religious beliefs to their children and that "early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society." They concluded that the parents had not shown any infringement of their s.2(a) rights.

Justice LeBel focused more directly on the parents' actual argument, namely that the refusal to exempt their children infringed s.2(a). He rightly pointed out that the parents did not seek to annul the ERC program. He found that the trial judge erred in focusing on the merits of the parents' beliefs (as opposed to the merits of their claims) and ought to have endeavoured instead to consider the program's content in concrete terms and its impact on the families involved.

Despite this different approach, Justice LeBel came to the same conclusion, namely that the parents had not objectively proven that compelling their children into the ERC program would interfere with their religious freedom. He agreed with the majority that "imparting information about different views of the world cannot be equated with a violation of freedom of religion." In essence, it became about proof and since the children had not participated in the ERC program, there was no evidence of its impact on the families.

LexView Commentary:

Justice LaForest, now retired of the Supreme Court of Canada, once observed that the common law has long recognized that parents are in the best position to take care of their children and determine what is best for them. He said this in his decision in B(R) v. Children's Aid Society and in the context of determining that s.2(a) of the Charter includes the right of parents to raise their children in conformity with the parents' religious beliefs. (That difficult case involved whether Jehovah's Witness parents could withhold lifesaving medical care from a child for religious reasons).

Parents bear responsibilities towards their children and must enjoy corresponding rights to exercise those responsibilities. Parents are in a privileged role in this regard. They are uniquely positioned to know and gauge their children's needs and abilities. In the result, the courts have recognized that parents are constitutionally protected when it comes to the moral and religious upbringing of their children.

The public school system is one in which, almost inevitably, there will be some conflict between the various belief systems of parents. As noted by Justice Gonthier in Chamberlain v. Surrey School District, the Charter should not be used to negate one set of beliefs when they conflict, whether popular or unpopular. The acceptable resolution is accommodating the needs of individual children and families participating in public education.

The majority of the Supreme Court of Canada approached the issue as whether the ERC program was constitutionally permissible. The ERC program was not on trial. The question was whether certain parents could obtain an exemption from having their children participate in the program because when they sincerely believed it would undermine the religious instruction of their children.

It is true that children will become exposed to realities and belief systems that differ from their own. That is a fact of life. However, the issue is: who gets to decide the extent and timing of that exposure? Do the dictates of the ministry of education prevail, or should dissenting parents be accommodated?

(a) Validity of the ERC Program

It is well established in Canadian law that public schools cannot inculcate specific religious teachings or practices without running afoul of the guarantee of freedom of religion in s.2(a) of the Charter. In 1988, the Ontario Court of Appeal struck down a regulation that made Christian prayers and scripture readings mandatory. Two years later, that same court struck down a regulation making religious instruction mandatory because its purpose and effect was religious indoctrination and not simply education about religion (which would be permissible).

In Chamberlain v. Surrey School District, the Supreme Court of Canada quashed a decision of a BC public school district refusing to approve books depicting same sex couples for use in kindergarten and grade one classrooms. The majority of the court held that the board had acted on the concern of certain parents about the morality of same-sex relationships without considering the interests of same-sex parented families. The court was clear that since religion is an integral part of people's lives, it cannot be left at the boardroom door, and public schools are "free to address the religious concerns of parents" provided that there is equal recognition and respect for all members of the community.

A good example of these religious concerns being appropriately addressed was in the Multani v. Commission Scolaire decision of the Supreme Court of Canada in 2006 (LexView 57.0). There, the court held that a Sikh's student's religiously motivated desire to wear a kirpan (ceremonial dagger) to school should be accommodated under s.2(a).

These decisions require that public schools be as neutral as possible when it comes to the religious beliefs and practices of the children and families they serve. They also establish that schools cannot indoctrinate or promote specific religious beliefs, but that religious minorities and their religiously motivated eccentricities should be accommodated.

The majority's statement that "absolute neutrality does not exist" is pragmatic and realistic. That having been said, a pedagogical approach to teaching ethics and morals that is based on postmodern concepts of relativism is sure to offend many parents with deeply held religious beliefs. This is because most religious traditions propound absolute truth and do not accept that morals are relative and subject to individual preerences or philosophies.

An ethics or religion class that intends to be "inclusive" cannot adopt the truth claims of any particular religious faith or tradition and, in the result, becomes relativistic at best and dismissive of religion at worst. Otherwise, it cannot pass constitutional muster. Such courses carry the risk that students will learn the subversive message that religious beliefs are a matter of mere taste, not capable of being either true or false.

Based on the description of the ERC program by the court, it does not offend s.2(a) jurisprudence. But that was neither the issue before the court nor the argument of the parents. They sought an exemption from the program for their children. They sought an accommodation of their own religious beliefs.

While "exposing children to a comprehensive presentation of various religions without forcing the children to join them" may not constitute indoctrination and therefore fail the test of constitutional validity, it may still infringe the religious freedom of specific families based on their individual circumstances and beliefs.

(b) Accommodating Parents

The manner in which the majority dealt with the claim for accommodation was dismissive. The majority focused merely on the validity of the ERC program and said little about the position of the parents: their specific religious beliefs and practices and claim for a constitutional exemption.

The majority cited Chamberlain for the proposition that exposing children to "cognitive dissonance" is inevitable in a diverse society and may be necessary, in some circumstances, if they are to be taught tolerance. This is a statement of educational philosophy and practice, not one of law. It does not answer the question of what happens when that "cognitive dissonance" is to a degree that it undermines or contradicts parental religious instruction in specific circumstances.

The majority's approach was to find that the ERC program was a positive development in public education in Quebec. That does not invalidate dissent and, when that dissent is based on constitutional claims, it necessitates a proper Charter analysis related to the parents' claims.

This case is part of a disturbing trend away from ensuring that the state accommodates religious individuals and groups under s.2(a) of the Charter. Contrary to the approach in Multani, courts seem less willing to recognize that in a diverse society, regulations of general application will negatively impact on religious minorities. Cases such as the marriage commissioners reference in Saskatchewan (LexView 73.0) and the Hutterian Brethren case (LexView 67.0) are part of this trend.

In his minority decision, Justice LeBel recognized the true nature of the parents' claims. He correctly pointed out that the trial judge did not follow the analytical approach relating to freedom of religion claims established in Syndicat Northcrest v. Amselem (LexView 65.0). By extension, this criticism is made of the majority's reasons and failure to focus squarely on the parents' constitutional claims.

Quite properly, Justice LeBel disagreed with any analytical approach that questioned the correctness of the parents' religious beliefs. The trial judge did so, and by ignoring the request for accommodation, the majority continued this error. The program's content is an important part of the analysis, but the specific impact of the program on these families seeking an exemption is the proper focus of the analysis.

Provided that claimants sincerely hold the religious beliefs they espouse, the court is not permitted to question the worth or validity of those beliefs. In this case, that requires the court to defer to sincerely held beliefs and to properly accommodate the families.

The difficulty for Justice LeBel was his conclusion that the parents were unable to prove that their constitutional right to raise their children would be interfered with by subjecting them to the ERC program. This is, in part, because the parents' request for an exemption was made before the children participated in the ERC program. Since they had never been subject to the moral relativism and other aspects of the teachings required by the ERC program, the parents could not positively establish their claims. It was, in a word, speculative. Does this mean that there is no analytical option but to force the children to suffer the harm of having their religious instruction at home damaged before they can get an exemption?

(c) The Burden and Problem of Proof

When bringing a constitutional claim, it is trite to say that claimants must prove an interference with Charter rights. The difficulty in this case is that the claimed interference is with the transmission of belief and not a distinct religious practice.

In Big M Drug Mart, the Supreme Court of Canada recognized the centrality to s.2(a) of the freedom to entertain belief and, by extension, the need to protect the teaching and dissemination of religious belief:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

Freedom of religion takes on an enhanced urgency when the teaching and dissemination is within the protected sphere of a parent-child relationship.

Other cases, such as Multani, involve the accommodation of religious practice. This case involved a claim to the accommodation of belief and the transmission of belief.

In focusing on the burden of proof faced by the parents, Justice LeBel lost an opportunity to develop the court's thinking on the importance of the transmission of belief and how religious belief itself needs to be protected from state interference. The statement that the parents' claim of a violation of their rights "cannot be based solely on a subjective perception of the Program's impact" misapprehends the nature of religious belief, which is inherently subjective.

Justice LeBel agreed with the majority in the conclusion that the ERC simply imparted "information about different views of the world", without deferring to the concerns and conclusions of the parents, who are charged with, and constitutionally protected in, the religious education of their children.

Since absolute neutrality in the presentation of moral and ethical beliefs cannot exist, deference is owed to those who are the primary educators of children in this regard, namely the parents. By requiring that parents subject their children to public education that they sincerely believe undermines religious instruction in the home before they can successfully articulate a Charter challenge, the Court undermined the protection afforded to the dissemination of religious belief in the home under s.2(a).

In essence, the Court has said that rights must be damaged before they can be protected. That is not correct and contrary to prior cases that have protected constitutional rights against anticipated breaches or the reasonable apprehension of harm. It is also contrary to the Supreme Court of Canada's statement in the 2004 Same Sex Marriage Reference (LexView 59.0) that "freedom of religion afforded by s.2(a) of the Charter is broad and jealously guarded."

The answer to the impossibility of a priori proof of interference is in giving deference to parents when it comes to the reasonable apprehension that the state will interfere with religious instruction. The parents must still establish a sincere belief that such interference will result. But once that sincerity is established, reasonable accommodation should follow. This is, in part, because the public school system cannot be harmed by allowing parents to do the very thing sought by the ERC program—the religious and moral instruction of children.

Otherwise, the eloquent words of former Chief Justice Dickson in Big M Drug Mart—that the essence of freedom of religion is the right to declare religious beliefs and to manifest belief by teaching and dissemination—quickly become hollow. This case is the opposite of "jealously" guarding freedom of religion and is particularly troubling when the diminishment of that protection is within the parent-child relationship.

This issue of LexView was researched and written by:
Kevin L. Boonstra, B.A. (Hons.), J.D., of the British Columbia Bar.

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Copyright © 2012 Cardus & Kevin L. Boonstra

LexView is an on-going review of judgments of Canadian courts that have an impact on the complex interrelationships between law, public policy, culture, moral reasoning, and religious belief.

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