In a decision released on February 17, 2012, the Supreme Court of Canada has once again dipped its oar into the controversial waters that surround the role of religion in public schools.
In S.L. v. Commission scolaire des Chênes,1 the Court considered a challenge to an Ethics and Religious Culture Program (the "Program"). The Program was introduced to replace the previous Catholic and Protestant programs of religious and moral instruction in Québec's public schools with a combination of ethical instruction and a "comprehensive presentation of various religions".
The appellants are Roman Catholics who asked the school board to exempt their children from participation in the Program. They argued that, while purporting to be neutral, this mandatory program in fact: (i) advocates a relativistic view of religions; (ii) conveys the idea that religious values do not constitute a sound basis for making ethical decisions; and (iii) tends to place children in a moral vacuum by requiring them to put aside their religious values when discussing ethical questions in class.2 The appellants claimed that the school board's refusal to exempt their children from the Program interfered with their ability to pass their faith on to their children and infringed their rights to freedom of conscience and religion under the Canadian Charter of Rights and Freedoms and the Québec Charter of human rights and freedoms.
The Court held that, in order to establish a breach of their freedom of religion, the appellants had to prove two elements: (i) that they held a sincere religious belief; and (ii) that the Program interfered with the practice of that belief.
The test for determining the existence of a religious belief is purely subjective. A court can assess whether the person's belief is sincere, but not whether it is objectively reasonable or corresponds to a religious precept recognized by other followers. Importantly, this approach means that claimants asserting religious rights are not required to prove that the particular practices for which they are claiming constitutional protection form part of an orthodox religious belief system. Provided that the belief is sincerely held and religious in nature, the fact that the claimant alone holds the belief is irrelevant. Thus, Justice LeBel, in a concurring decision, was critical of the lower court judge for relying upon the fact that the Québec Assembly of Bishops was not opposed to the objectives of the Program to conclude that the parents were wrong to believe that the program's objectives interfered with their religious obligations. The Supreme Court of Canada readily accepted the sincerity of the applicants' belief that they have an obligation to pass on the precepts of the Catholic religion to their children.
The only real issue was whether the appellants could satisfy the second element of the test for an infringement by proving that the Program interfered with their belief. Unlike the first element of the test, which requires only a subjective belief on the part of the claimants, the appellants were required to present objective evidence that the Program interfered with their ability to pass their faith on to their children. The Court found that the appellants had failed to do so, having relied exclusively on their subjective conviction that the program interfered with their religious obligations. As noted by Justice Deschamps,
"It is not enough for a person to say that his or her rights have been infringed." It is important to note that the appellants commenced their application before the Program had begun. As a result, the Court's assessment of what the program would entail was based upon the course description and materials, as opposed to evidence as to how the course would actually be taught. Based upon those written materials, the Court concluded that there was no evidence that the course was intended to transmit a philosophy based on relativism or to influence young people's specific beliefs.
The Court concluded that exposing children to the views of various religions, without forcing children to join them, did not constitute an indoctrination of students that would infringe their parents' freedom of religion. In contrast to compulsory religious indoctrination, which would infringe religious freedom, the Program taught students about religion and moral values without indoctrination into a particular faith.
Justice Deschamps' decision can be read as an endorsement of multiculturalism, as she found that "The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Québec government's obligations with regard to education."
While it is tempting to conclude, based on the Court's decision, that a mandatory public school course on world religions could never constitute an infringement of religious rights, this may be too simplistic. Despite finding that the appellants had not proved an infringement of their rights on the basis of the written materials, Justice LeBel warned that he could not preclude the possibility that the implementation of the Program might infringe religious rights in the future. Whereas Justice Deschamps' judgment seems to reflect a faith that the Program will support multicultural values, Justice LeBel appears to be more agnostic as to its content, concluding simply that the record before him was insufficient to prove conclusively the existence of a breach of the appellant's rights.
Footnotes
1 [2012] S.C.J. No. 7.
2 As summarized by LeBel J., in a concurring decision.
* While the author was not personally involved in the case, Borden Ladner Gervais LLP represented the appellants before the Supreme
About BLGThe content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
