Startling the Mama Bears

Kevin L. Boonstra July/August 2012

In matters of religion, parents are the primary educators of their children. This should be a self-evident statement. In past cases the Supreme Court of Canada has recognized this model when interpreting the rights of parents under the guarantee of freedom of conscience and religion in the Charter of Rights and Freedoms.

There are, of course, a number of ways in which the state intervenes in the relationship between parents and children. When a child is in need of protection, the state may remove a child from the home. Children are also required to attend elementary and secondary school with a regulated course of instruction. Most people have recognized that these are reasonable intrusions, provided that individual rights are respected and accommodated.
Public schools often create a flashpoint for disputes and differences involving religious belief and moral education. They are a microcosm of the broader diverse and multicultural society, but populated by the most impressionable citizens. Since children are required by law to attend, public schools create a particular vulnerability to the dictates of the government's educational policy.

Public education in Canada is complicated by history and the privileged position that denominational schools have enjoyed in some provinces. For example, in order to preserve Quebec's distinctive French culture and Catholic past, public school boards were divided between Catholic and Protestant educational systems. This confessional school system was mandated by the Canadian constitution when the country was created in 1867.
Until 1964 the confessional schools were run by religious organizations. In that year the Quebec government took charge of public education, although for the next three decades the demoninational school system still remained in place. In 1995 the Quebec government established a commission to study the situation, which recommended a far-reaching review of educational programs.

Abolishing denominational school boards did not become constitutionally possible in Quebec until a 1997 amendment to the Constitution Act. Instead of a focus on religion, public schools in that province would thereafter be organized on the basis of language.

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

As part of the secularization process, 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. One of its goals is secularized tolerance, but its effect may include teachings that undermine specific religious beliefs.

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

Some Catholic parents applied 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 the moral and religious instruction of their children at home.

The school district denied the exemption. In fact, other parents in other Quebec school districts received very similar letters, which suggests that the Quebec Ministry of Education was behind the denials of exemptions.

The parents, known only by their initials in the litigation they commenced, sought court orders exempting their children and declaring that the ERC program violated their freedom of religion. They argued 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 dismissed their claims, holding that the objective of various religions did not put them in "an obligatory and coercive situation." Their appeal to the Quebec Court of Appeal was denied. They then appealed to the Supreme Court of Canada.

Based on prior decisions of Canada's highest court, they had reasons to be optimistic. For example, in 2006 the court found that a Sikh student had the right to wear his kirpan (ceremonial dagger) to school despite rules against weapons.1 This prior ruling suggests a court that is sensitive to the needs of religious families.

Surprisingly, the Supreme Court also refused to give the parents any relief.2 The majority of judges held that the parents had not shown that the ERC program interfered with their ability to pass their faith on to their children.
The court accepted that "absolute neutrality" in the school system does not exist when it comes to moral education, but held that such neutrality is not necessary. It is sufficient if the "state neither favors nor hinders any particular religious belief" and "shows respect for all postures toward religion."

The majority also found that "exposing children to a comprehensive presentation of various religions without forcing the 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. They 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."

The majority did not analyze the parents' claims in any meaningful sense. Once they had concluded that the ERC was a legitimate and constitutionally permissible program, the case was over from their perspective. This results in a thin and hollow protection for parents: provided that a school program does not indoctrinate students in a particular religious tradition, parents are unable to object when the "almost neutral" teachings undermine the faith inculcated at home.

In a separate, concurring decision, a minority of two justices focused on the parents' actual argument, namely, that the refusal to exempt their children infringed their religions liberty. These two judges recognized that parents did not seek to annul the ERC program and only sought to have their particular circumstances accommodated.

However, the minority also refused the parents' claim for an exemption. They held that since the children had not yet participated in the ERC program, there was inadequate proof of interference with the parents' religious instruction of their children

It is true that Canadian law prohibits public schools from inculcating specific religious teachings or practices. Public schools must be as neutral as possible when it comes to the religious beliefs and practices of the children and families they serve.

However, the jurisprudence also establishes that religious minorities and their religiously motivated eccentricities should be accommodated. The 2006 kirpan decision is a good example.

It is inevitable that children will become exposed to realities and belief systems that differ from their own when attending public schools. That having been said, in a pluralistic and multireligious society, the public school system must accommodate exemptions for parents whose religious beliefs require them to provide alternative delivery on sensitive or controversial topics. When it comes to a program whose motivation is to encourage "tolerance," such as the ERC, such accommodation should be virtually automatic.

Parents have far-reaching and significant responsibilities toward their children and must enjoy corresponding rights. Parents are in a privileged role in this regard, and the protection of the family unit requires that these privileges be jealously protected. Parents are uniquely positioned to know and gauge their children's needs and abilities. In the result, Canadian courts have traditionally recognized that parents are constitutionally protected when it comes to the moral and religious upbringing of their children.

Canadian law is also clear that, once it is established 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 principle ought to have resulted in the court deferring to the parents' sincerely held beliefs.

Since absolute neutrality in the presentation of moral and ethical beliefs cannot exist, deference is owed to parents by virtue of their right and responsibility to morally educate their children. 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 undermines the protection afforded to the dissemination of religious belief in the home. In essence, the court held that rights must be damaged before they can be protected. That puts parents in a constitutionally impossible situation: a right must be breached before it can be protected.

The court's reasoning is very troubling, and not just for the province of Quebec. Ministries of education across the country are introducing "tolerance" programs in an effort to combat bullying, reduce discrimination against homosexuals, and to achieve other laudable goals.

It may be that the ERC program and other similar programs are fairly innocuous and only a handful of parents will object. However, the court's approach to compelling participation undermines the very tolerance sought to be promoted in such programs and forces conformity. Preventing state-compelled conformity is one of the primary reasons that the individual rights in the Canadian charter exist.

Unfortunately, the court's decision is already beginning to have ripple effects in other provinces.

The government of Alberta is passing legislation that includes a requirement that "all courses or programs of study offered and instructional materials used . . . must reflect the diverse nature and heritage of society."3 This applies to public schools, private schools, and even parents homeschooling their children.

The Alberta government has said that under this new legislation, homeschoolers and faith-based private schools will not be permitted, for example, to teach that homosexual behavior is bad or sinful as part of the academic program mandated by the ministry of education. The potential for such a direct interference with religious instruction in the home by the government is shocking.

As reported by, the Alberta education minister's director of education, Donna McColl, stated that "whatever the nature of schooling . . . we do not tolerate disrespect for differences."4 Presumably the contradictory nature of her statement was lost on Ms. McColl.

When pressed about the impact on families that are delivering the mandated curriculum in the home, Ms. McColl is reported as justifying the position on the basis of the Supreme Court of Canada decision dealing with the ERC program in Quebec.

The issue is not simply one of the morality of different types of sexuality. It is about the government attempting to control how children are educated on moral and religious issues in the home.

Unfortunately, as made evident from the reaction of the Alberta government, the Supreme Court of Canada's decision is going to embolden ministries of education across Canada to undermine religious instruction in the home that may not neatly fit with the government's views of "tolerance," moral relativism, or the morality of certain sexual conduct.

For many parents this is terrifying. If the government is able to reach into homes and control moral education and the dissemination of religious belief, very little else is sacred.

For homeschoolers, the practical response of parents may be to deliver the curriculum as designed and then immediately adjourn school for a Bible study that imparts the family's religious tradition. Parents should not be placed in this position.

For families that have little choice but to place their children in public schools, no such practical alternative presents itself. And if provincial governments take advantage of the court's decision, parents have nowhere else to turn and, in fact, may never know the extent to which the state is undermining the religious beliefs of their families.

Kevin L. Boonstra is an attorney who practices in British Columbia, Canada.

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Article Author: Kevin L. Boonstra