March 19th, 2012
Previously on TheCourt.ca: Ajit Singh’s introductory piece on the appellate level decision and Christopher Hunter’s view on the Supreme Court’s decision in S.L., et al. v. Commission scolaire des Chênes, et al, 2012 SCC 7.
In Canada today, one would not be surprised to hear a modern parent exclaim, “I don’t want the school system shoving some religious view down my child’s throat!” And when the religious view being taught is one different than that held by the student’s parents, any parent would agree with that statement. This was particularly a problem in Quebec where, historically, education was predominantly the domain of the churches. When religion was taught in school it was taught from a Protestant perspective in Protestant schools, and from a Catholic perspective in Catholic schools. If Protestant (or non-Christian, or non-religious) parents sent their children to a Catholic school, they would naturally feel that their religion was being discriminated against by that school’s preferential presentation of another religion.
To solve this problem, the government has adopted a policy of what the Supreme Court called “religious neutrality.” But doesn’t this create the same problem? Doesn’t a “neutral” stance towards religion please religiously neutral (read: non-religious) parents, but leave religious parents exclaiming, “I don’t want the school system shoving religious neutrality down my child’s throat”? That is the question that the appellants attempted to raise in the case of SL c Commission scolaire des Chênes.
The Background to this Case
The Supreme Court has already held that official government endorsement of any one religion infringes the religious freedom of Canadians under s 2(a) of the Charter (Big M Drug Mart). Furthermore, the Ontario Court of Appeal has held that a religious education course that has the purpose and effect of providing for religious indoctrination is a violation of the Charter (CCLA v Ontario). Essentially the courts have held that in order to be Charter-compliant, the state must be entirely religiously neutral: that is, the state must be secular.
This solution is premised on the assumption that secularism is in fact neutral on the question of religion. However, University of Windsor law professor Richard Moon has pointed out that this is probably not true. He has pointed out that secularism is itself a religious worldview, or at least equivalent to a religious worldview. Now, instead of secular or agnostic parents being offended by the state’s official endorsement of one religion, it is believing parents who are being offended by the state’s official endorsement of the religion of secularism. Professor Moon put it this way:
If secularism or agnosticism constitutes a position, worldview, or cultural identity equivalent to religious adherence, then its proponents may feel excluded or marginalized when the state supports even the most ecumenical religious practices. But by the same token, the complete removal of religion from the public sphere may be experienced by religious adherents as the exclusion of their worldview and the affirmation of a non-religious or secular perspective . . . .
. . .
. . . Ironically, then, as the exclusion of religion from public life, in the name of religious freedom and equality, has become more complete, the secular has begun to appear less neutral and more partisan. With the growth of agnosticism and atheism, religious neutrality in the public sphere may have become impossible. What for some is the neutral ground on which freedom of religion and conscience depends is for others a partisan anti-spiritual perspective. (Emphasis added)
As Professor Moon points out, no solution seems to exist. The problem appears intractable. This is a riddle for which there is no answer. Whatever solution is chosen, there will be at least one group of people who feel that their rights have been violated.
The appellants here attempted to get the Supreme Court to referee this debate. Ultimately, the Court didn’t bite.
In 2008, the Quebec government made a course called “Ethics and Religious Culture” (ERC) mandatory in the Quebec school system. According to the Quebec Department of Education the purpose of this course is to promote, in a religiously neutral way, the “understanding of several religious traditions whose influence has been felt and is still felt in our society today.” The appellants disagreed. They argued that the purpose of the course was to inculcate their children with the moral philosophy of the majority: what I would call secularism, but what they called relativism.
The appellants are practising Catholics who believed that having their children participate in the ERC course would violate their right to raise their children in accordance with their Catholic beliefs. They asked for a formal exemption for their children from the course, and were denied. They appealed this decision of the school board all the way to the Supreme Court, losing at every step of the proceedings.
There is no doubt that parents have the constitutionally-protected right to raise their children in accordance with their religious beliefs (B(R) v Children’s Aid Society of Metropolitan Toronto). The question here was whether or not the ERC course infringed that right.
The factual determination the appellants hoped that this case would turn on was expressed by Lebel J: “[I]s it (the ERC course) a program that will provide all students with better knowledge of society’s diversity and teach them to be open to differences? Or is it an educational tool designed to get religion out of children’s heads by taking an essentially agnostic or atheistic approach that denies any theoretical validity to the religious experience and religious values?” Unfortunately, the analysis never got this far.
Courts have already said that teaching about religions from the perspective of a particular Christian denomination amounts to religious indoctrination (CCLA v Ontario). The appellants tried to get the Court here to say that teaching about religions from the perspective of relativism also amounts to religious (or at the very least philosophical) indoctrination. Had they succeed in establishing that proposition, it would have only been a hop, skip, and a jump away from concluding that the ERC course was a violation of their right to raise their children in accordance with their beliefs. Interestingly, the appellants did not go whole hog and argue that the ERC course itself should be scrapped as unconstitutional: instead they merely requested an exemption from the course for their own children. Whatever else can be said about the appellant’s legal strategy, they cannot be accused of over-reaching.
Reading between the lines of this decision, one could sense that the Court was not eager to wade into this religiously-charged debate. Faced with Big M Drug Mart and CCLA v Ontario, Deschamps J (writing for seven judges) endorsed the desirability of religious neutrality as a policy of the state. However, faced with Professor Moon’s “riddle,” she also admitted that “from a philosophical standpoint, absolute neutrality does not exist.” One could sense how unwilling the Court was to not have to untie that knot.
The Court found an out in the Amselem test. The Amselem case set out a two-stage test for proving an infringement of freedom of religion. First, the appellant must show that they have a sincerely held religious belief that has some “nexus with religion.” Second, the appellants must prove on a balance of probabilities that their right is being infringed. At this second stage of the Amselem test the Court held that the appellants had presented insufficient evidence to make out an infringement.
Chief among the evidentiary problems was the fact that the appellants did not attempt to show how the ERC course infringed their religious rights, but simply asserted that it did. On top of that, they tendered into evidence the course curriculum and content, but did not tender any evidence as to how the course was being implemented. Lebel J described the evidentiary record as “sketchy.”
Given the evidentiary record, the Court was able to throw out the case under the Amselem test without having to engage the looming meta-question of how schools can teach religion in the classroom without offending the freedom of religion of someone.
While the Court took a pass on this meta-question at this time, Justice Lebel at least (writing for himself and Fish J) hinted that he would be willing to tackle this question at a later time. He closed by making a point of saying that, despite the holding in this case, he would not go so far as “to conclude that the program and its implementation could not, in the future, possibly infringe the rights granted to the appellants and persons in the same situation.” With this obiter comment, Lebel J seems to be inviting someone else in the same situation to bring this same question to the Court at a later date with a more compete evidentiary record.
Dennis Crawford is a third year JD student at Osgoode Hall Law School.[filed: S.L. v. Commission scolaire des Chênes (2011)]