By Don Hutchinson
The Supreme Court of Canada released a decision with an unanticipated twist in S.L. v. Commission Scolaire des Chênes on Friday, February 17. The case was focused on the request of S.L. and D. J. to exercise their parental right to request their children’s exemption from a grade 1 to grade 11 curriculum (the Ethics and Religion in Culture program, “ERC”) of Quebec’s Ministry of Education. They believed the program conflicts with their religious beliefs because elements of the curriculum equate all religions as being essentially the same.
While the EFC affirms the interest of provincial governments in Canada to provide education about religion, they should not offer religious education that is indoctrinational; and parents, who have the primary responsibility for the education of their children, should have the right to opt their children out of religious education that contradicts the dictates of their religion.
The popular media has generally reported that the government won and the parents lost. However, S.L. and D.J. did not so much “lose” as they were “disqualified.” The key to the Court’s decision was a technical legal distinction based on the parents’ presentation at the lower court. The parents believed it sufficient to state that the curriculum document itself offended their religious beliefs, rather than demonstrating that the ERC had objectively interfered in some way with their ability to pass their religion on to their children, and therefore violating their right to religious freedom. The decision turned on this point of objective demonstration of interference or infringement.
Please note that the Court did not state that the Quebec government, or any other, was being granted a license to violate religious beliefs through education. The Court noted that if the course is implemented in a way that can be demonstrated to interfere with parents’ ability to pass their faith on to their children – perhaps by belittling the beliefs of the faith community in question or noting them to be questionable or false – then the issue of the program’s infringement on religious freedom and parental rights remains to be determined at some future date.
Although a “non-decision” on the issue that was believed to be at the heart of this case, in the short (60 paragraphs, double spaced on 27 pages) decision the Supreme Court of Canada still made notable comment about the role of the state in regard to freedom of religion and parental rights in Canada.
State Religious Neutrality – The Court noted that while a “gradual separation of church and state in Canada has been part of a broad movement to secularize public institutions” there is no Canadian legal or constitutional recognition of the separation of church and state as a concept as found in the U.S. Constitution. In that context, the Court attempted to clarify the various ideas in regard to its previous comments on “secularism” (in Chamberlain v. Surrey School District No. 36) by referencing a principle it described as “state religious neutrality.”
The Court admitted “that, from a philosophical standpoint, absolute neutrality does not exist” however “following a realistic and non-absolutist approach, state neutrality is assured when the state neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the affected individuals affected.”
Religious Freedom – The Court affirmed the principle that “a person does not have to show that the practice the person sincerely believes he or she must observe or the belief the person endorses corresponds to a religious precept recognized by other followers. If the person believes that he or she has an obligation to act in accordance with a practice or endorses a belief ‘having a nexus with religion’, the court is limited to assessing the sincerity of the person’s belief.” (per Syndicat Northcrest v. Amselem)
The Court also affirmed that the “right of parents to bring up their children in their faith is part of the freedom of religion guaranteed by the Canadian Charter.”
However, the Court presented a clarification on how “infringement” of the right to freedom of religion is assessed. This clarification appears to be a departure from the Court’s previous position. In the past, infringement claims have been based on either actual infringement having already taken place or an initiative of government resulting in a scenario where infringement appears inevitable. The Court stated “that when considering an infringement of freedom of religion, the question is not whether the person sincerely believes that a religious practice or belief has been infringed, but whether a religious practice or belief exists that has been infringed. The subjective part of the analysis is limited to establishing that there is a sincere belief that has a nexus with religion, including the belief in an obligation to conform to a religious practice. As with any other right or freedom protected by the Canadian Charter and the Quebec Charter, proving the infringement requires an objective analysis of the rules, events or acts that interfere with the exercise of the freedom.”
Parental Rights – Parents’ rights in regard to the education of their children were not stripped away, but neither were they robustly supported.
Parents are free to pass their personal beliefs on to their children if they so wish. However, the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society. 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 Quebec government’s obligations with regard to public education. Although such exposure can be a source of friction, it does not in itself constitute an infringement of s. 2(a) of the Canadian Charter and of s. 3 of the Quebec Charter.
Summary – To summarize:
- The decision turned on a technical understanding of how to establish the infringement of a Charter right
- The curriculum in question could be before the courts again if an infringement is established within the infringement guidelines noted by the Court
- Canada has no doctrine of the separation of church and state, however the state is expected to be as neutral as possible in regard to religious beliefs, respecting all religions
- Religious beliefs and practices are subjectively determined by the individual
- Infringement of religious freedom requires objective evidence that infringement has occurred
- Parents are free to pass their religious beliefs on to their children
- Parents need to be prepared for their children to be exposed to beliefs and perspectives other than their own
To read Don Hutchinson's complete case analysis, please see They said WHAT!? – A brief analysis of the Supreme Court of Canada’s decision in S.L. v. Commission Scolaire des Chênes