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Zylberberg v. Sudbury Board of Education (1988)
http://www.canlii.ca/on/cas/onca/1988/1988onca10004.html
This document: 1988 CanLII 189 (ON C.A.)
Citation: Zylberberg v. Sudbury Board of Education, 1988 CanLII 189 (ON C.A.)
Parallel citations: (1988), 65 O.R. (2d) 641; (1988), 52 D.L.R. (4th) 577;
(1988), [1989] 34 C.R.R. 1; (1988), 29 O.A.C. 23
Date: 1988-09-23
Docket: 567/86
File No. 567/86
SUPREME COURT OF ONTARIO
COURT OF APPEAL
Brooke, Lacourcière, Blair, Goodman and Robins JJ.A.
BETWEEN:
PHILIP ZYLBERBERG, MORA GREGG, BRYNA COPPEL-PARK, HARVEY WYERS, AND SAM ENVER
Applicants (Appellants)
- and -
THE DIRECTOR OF EDUCATION OF THE SUDBURY BOARD OF EDUCATION
Respondent (Respondent in Appeal)
C. M. CAMPBELL for the Appellants
BRUCE H. STEWART, Q.C. and MICHAEL HINES for the Respondent
S. J. ADLER for League for Human Rights of B'nai Brith Canada (Intervenor)
J. B. LASKIN for Canadian Civil Liberties Association (Intervenor)
JOHN I. LASKIN for Canadian Jewish Congress (Intervenor)
BLENUS WRIGHT, Q.C. and
ROBERT E. CHARNEY for Attorney General of Ontario (Intervenor)
Heard: February 17, 18 and 19, 1988
RELEASED: September 23, 1988
BROOKE, BLAIR, GOODMAN AND ROBINS JJ.A.:
The issue in this appeal is whether religious exercises, prescribed for the
opening or closing of each school day in the public schools of this province,
infringe the freedom of religion and conscience guaranteed by s. 2(a) of the
Canadian Charter of Rights and Freedoms. This is an appeal from a decision of
the Divisional Court, now reported
[Page 2]
at 55 O.R. (2d) 749, which by a majority held that they did not.
1. STATUTES AND REGULATIONS
The statutory authority for religious exercises in public schools is found in
s. 50 of the Education Act, R.S.O. 1980, c. 129 (the Act) which reads as follows:
Religious Instruction
50.-(1) Subject to the regulations, a pupil shall be allowed to receive such
religious instruction as his parent or guardian desires or, where the pupil
is an adult, as he desires.
(2) No pupil in a public school shall be required to read or study in or from
a religious book, or to join in an exercise of devotion or religion, objected
to by his parent or guardian, or by the pupil, where he is an adult.
Only s-s. (2) which deals with religious exercises is relevant to this appeal.
The provisions regarding religious instruction in s. 50 and the regulations
made thereunder were held not to infringe the Charter by the Divisional Court
in a split decision released after the hearing of this appeal: The Corporation
of the Canadian Civil Liberties Association et al. v. The Minister of Education
and the Elgin County Board of Education, released March 28, 1988, unreported
(the Elgin County case). It is not necessary for the purpose of our decision to
refer to the Elgin County case. We consider any
[Page 3]
discussion of it here to be inappropriate because it is under appeal to this
court.
Power to make regulations under s. 50 is conferred by para. 18 of s. 10(1)
which reads:
10.-(1) Subject to the approval of the Lieutenant Governor in Council, the
Minister may make regulations in respect of schools or classes established
under this Act, or any predecessor of this Act, and with respect to all other
schools supported in whole or in part by public money,
...
18. governing the provision of religious exercises and religious education
in public and secondary schools and providing for the exemption of pupils
from participating in such exercises and education and of a teacher from
teaching, and a public school board or a secondary school board from
providing, religious education in any school or class;
Religious exercises in public schools are governed by s. 28 of O.Reg. 262/80
(the Regulations) made pursuant to s. 10(1), the relevant parts of which provide:
RELIGIOUS EXERCISES AND RELIGIOUS EDUCATION IN THE PUBLIC SCHOOLS
28.-(1) A public school shall be opened or closed each school day with
religious exercises consisting of the reading of the Scriptures or other
suitable readings and the repeating of the Lord's Prayer or other suitable
prayers.
[Page 4]
(2) The readings and prayers that form part of the religious exercises
referred to in subsection (1) shall be chosen from a list of selections
approved for such purpose by the board that operates the school where the
board approves such a list and, where the board does not approve such a list,
the principal of the school shall select the readings and prayers after
notifying the board of his intention to do so, but his selection is subject
to revision by the board at any time.
(3) The religious exercises under subsection (1) may include the singing of
one or more hymns.
...
(10) No pupil shall be required to take part in any religious exercises or be
subject to any instruction in religious education where his parent or, where
the pupil is an adult, the pupil applies to the principal of the school that
the pupil attends for exemption of the pupil therefrom.
(11) In public schools without suitable waiting rooms or other similar
accommodation, if the parent of a pupil or, where the pupil is an adult, the
pupil applies to the principal of the school for the exemption of the pupil
from attendance while religious exercises are being held or religious
education given, such request shall be granted.
(12) Where a parent of a pupil, or a pupil who is an adult, objects to the
pupil's taking part in religious exercises or being subject to instruction
in religious education, but requests that the pupil remain in the classroom
during the time devoted to religious exercises or instruction in religious
education, the principal of the school that pupil attends shall permit the
pupil to do so, if he
[Page 5]
maintains decorous behaviour. [Emphasis added.]
Sub-sections 4 to 9 deal with religious education and are not relevant to this
appeal.
The appellants seek a declaration that s. 28(1) of the Regulations is of no
force or effect because it interferes with the appellants' freedom under
s. 2(a) of the Charter which declares:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion;
This necessarily would include s-ss. (2) and (3) of s. 28. The appellants
refrain from asking for any declaration with respect to s-ss. (10), (11) and
(12) of s. 28 or s. 50 of the Act because they do not wish to impair the rights
to exemption from religious exercises or instruction which are contained
in them.
It should be noted that the right of Ontario Roman Catholics to religious
education in separate schools is guaranteed by s. 93 of the Constitution Act,
1867 and is not an issue in this appeal.
[Page 6]
2. THE FACTUAL BACKGROUND
This application was originally made by five parents of children attending
elementary public schools within the jurisdiction of the respondent school
board in Sudbury (the Board). Two of the applicants have since moved out of the
Board's district and seek to discontinue their appeal. The three remaining
appellants were supported in argument by the three intervenors.
The Board's evidence was that the daily opening exercises in all its schools
are brief and include the singing of O Canada and the saying of the Lord's
Prayer. The prayer is either led by the classroom teacher or recited over the
school's public address system. In some schools, Scripture passages are also
read.
At the request of a parent, a child is excused from the classroom during the
exercises or, if he or she remains in the room, is not required to participate.
Arrangements are made in every school for the care of children while they are
excused from the classroom. If they remain in the classroom, the Board's
evidence is that they normally stand with other students during the exercises
but are not required to do so nor are they required to bow their heads. The
decision as to how best to accommodate a child excused from
[Page 7]
participation in the religious exercises is made in consultation with the
parents. The Board also permits students from different religious faiths to be
absent from school at their parents' request in order to observe religious
holidays.
Of the three remaining appellants one is of the Jewish religion and another is
a Moslem. The third practises no religion but his wife is Roman Catholic and
their children attend that church a few times a year. They decided to send
their children to a public rather than a separate school in order to give them
a secular education. One appellant made his objections to compulsory religious
exercises known by letter to the Board but did not request an exemption from
the exercises for his children although invited to do so. The other two
appellants did not object before commencing these proceedings and did not
request an exemption. The three appellants stated that they had not requested
an exemption for their children because they did not want them singled out from
their peers because of their religious beliefs.
There was a difference of expert opinion about the effect of religious
exercises on non-Christian or non-participating children. An affidavit of a
psychologist, filed by the appellants, expressed the view that such children
would be placed under pressure to conform which, if
[Page 8]
resisted, would result in their being alienated from their peers. The
affidavits of two psychologists, filed by the Board, asserted that children
from minority religions were not harmed by the policy. They stated that pupils
were routinely excused from other subjects and activities. They also claimed
that religious exercises resulted in minority children "confronting the fact of
their difference from the majority". This was said to be a normal and healthy
part of growing up which would contribute to the development of religious
tolerance and understanding which is important in view of the multicultural
heritage of Canadians.
In the Divisional Court, O'Leary J. held that the religious exercises
prescribed by s. 28(1) did not infringe the guarantee of freedom of conscience
and religion provided by s. 2(a) of the Charter. Alternatively, he held that,
if the Charter freedom was infringed, the infringement was justifiable under
s. 1 of the Charter which provides:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.
He was of the view that the inculcation of morality was a proper educational
object and that morality and religion were intertwined. If this resulted in any
infringement on minority religious beliefs, it was not substantial. He
[Page 9]
pointed out that the religious exercises did not have to be Christian and,
except in the case of non-believers, could be consistent with the Charter which,
in its preamble, recognizes "the supremacy of God and the rule of law".
Anderson J. concurred with O'Leary J. for reasons which he described as
"somewhat narrower". In his view, the Charter freedom under s. 2(a) would be
infringed only if there were "coercion" on children to participate in the
religious exercises. He held that coercion was negatived by the provision for
exemption and stated at p. 780:
The applicants and supporting intervenors argue, as indeed they must, having
no alternative, that the right to abstain from the exercises or be absent
from them, far from saving the regulation in fact condemns it; that the mere
provision of this right implies that the exercises may be offensive to sane,
and that the need to have recourse to the right of abstention or absence is
in itself constraint, compulsion or coercion, or at least a major inducement.
Thus baldly stated, the argument, in my view, offends logic and common sense.
It is tantamount to saying that a right to refuse is a compulsion to accept.
Choice is of the essence of freedom and the decision as to what choice is
appropriate is often difficult. The difficulty is part of the price of freedom.
Reid J., in dissent, held that the position of religious minorities had to be
appreciated and that it was no answer to their concerns to say that they should
not be upset
[Page 10]
and that the religious exercises might be good for them. The effect of s. 28
was, in his view, to make one group, the religious majority, more equal than
others, the religious minorities. He stated at p. 771:
I have no doubt about the pressing need to encourage morality, but that
religious exercises are necessary for its teaching is, in my opinion, a
questionable proposition. I accept that they may be helpful, but necessity I
cannot accept.
He found that the effect of the Act and the Regulations was to interfere with
the Charter freedoms of conscience and religion of members of religious
minorities and that it could not be justified under s. 1 of the Charter. He
said at p. 772 that he did "not think" that s. 1
... was intended to be applied so as to justify an interference with the
religious freedom of some but not of others. That would make the Charter
contradict itself. If any interference may be justified by reason of s. 1, it
seems to me it must be an interference not with the right of some to religious
freedom, but with the right of all. In the result, I do not think the
regulation can be defended upon s. 1."
3. HISTORICAL BACKGROUND
The place of religion in the public schools of Ontario has been a matter of
concern and, sometimes, dispute throughout their history. It has two aspects:
religious education and opening or closing religious exercises.
[Page 11]
Although almost all supporters of the public school system were Christian during
the nineteenth century and most of this century, sectarian differences between
Protestant denominations made it impossible to provide for religious instruction
until 1944 when the present system was adopted. It was approved by the Royal
Commission on Education in Ontario, 1950 (the Hope Commission) but its
discontinuance was recommended by the Report of the Committee on Religious
Education in the Public Schools of the Province of Ontario, 1969 (the Mackay
Report). This recommendation was not adopted by the Government of Ontario.
This case is concerned with the other aspect of religion in public schools:
opening or closing religious exercises. Such exercises were suggested as early
as 1816 when it was recommended that "the labours of the day commence with
prayer" and that "they conclude with reading publicly and solemnly a few verses
of the New Testament". It appears that the recommendation was not universally
followed. In 1855, a minute of the Council of Public Instruction recommended
such opening and closing exercises with the significant addition that "no pupil
should be compelled to be present at these exercises against the wish of his
parents or guardian, expressed in writing to the Master of the School". In
1884, the opening of the school day with prayer and authorized scripture
selections, read without comment or
[Page 12]
explanation, was made mandatory but children could be exempted if their parents
wished. The Regulations of 1944 provided that the singing of God Save the King
or O Canada, or both, should be part of the daily opening or closing exercises.
The continuance of such exercises was recommended both by the Hope Commission
and the Mackay Committee. The latter Committee found that the opening exercises
were more widely acceptable and less controversial than religious education.
The Mackay Committee's Report states that it "sought to evaluate 'opening
exercises' ... particularly in relation to our conclusion that there should be
no religious indoctrination in the public school system." (p. 35). The Report
then states:
We were impressed by the fact, which we have noted was mentioned in several
briefs, that many public functions in the province of Ontario, such as
convocations, opening of the Legislature, and public meetings, are begun with
the singing of the National Anthem and the reciting of a prayer. At gatherings
such as these, people who object to the prayer usually stand in respectful
silence without taking part. In the Committee's opinion, such opening
ceremonies are indeed intrinsic in the culture of the province of Ontario.
At school the child is being prepared for life in this society and accordingly
participation in opening exercises at the beginning of each school day in the
elementary grades is helpful in rounding out his education.
[Page 13]
It was also brought forcibly to the Committee's attention, as previously noted
that to eliminate opening exercises would suggest that religion is not an
integral part of the life of the people of this province. It is the Committee's
view that religion does indeed play a vital part in our life and that the
holding of opening exercises therefore exposes the child to a valuable
learning experience in relation to the whole community in which he lives.
The opening exercises recommended by the Committee consisted of the "singing of
the National Anthem and a prayer, either of universal character appealing to
God for help in the day's activities, or the Lord's Prayer". The Committee felt
that opening exercises in the hands of a sensitive and intelligent teacher could
be expanded to "recognize national days such as Remembrance Day and significant
religious days of all faiths such as Easter, Hanukkah, Christmas, or the
Passover". The Committee recommended the cessation of Bible readings as part of
the opening exercises, noting that the reading of the Bible had been criticized
in numerous briefs for a variety of reasons. The Report emphasized that:
The intention of the recommended opening exercises should be inspirational and
dedicational rather than confessional. The above distinction is essential in
order to permit participation by all students.
[Page 14]
Throughout its Report, the Mackay Committee demonstrated sensitivity to the
change in the composition of the population of the province in post-war years
and the present pluralistic nature of Ontario's society. It commented at
pp. 36-37:
The pluralistic nature of Ontario's society has been recognized by the
Committee. The recommended opening exercises have religious significance for
many and cultural significance for all. We are aware of the rights of
minorities as well as the rights of the majority, and we have attempted to
recognize the rights of both. What we have recommended is intended to fulfil
a useful learning purpose, and should not be objectionable to most reasonable
persons. Certainly, the opening exercises need provide no opportunity for
indoctrination on the one hand or for watering down of individual belief on
the other. We hope that all students will feel free to attend them in
good heart.
Recognizing that the recommendation might not be universally approved, the
Committee concluded:
... [T]he Committee is of the opinion that the opening exercises which we now
recommend should be found acceptable to almost all reasonable persons.
Isolated requests for exemption, on the basis of individual religious
implications, may have to be dealt with on their merits as they arise. We
would regret such necessity, but for democratic reasons must admit the
possibility.
[Page 15]
It was not until 1978, nine years after the Mackay Committee Report, that the
regulations governing opening religious exercises were changed by O.Reg.
704/78. The previous regulation, O.Reg. 30/44 said:
13.-(1)(a) Every public school shall be opened each school day with religious
exercises consisting of the reading of the Scriptures and the repeating of
the Lord's Prayer or other prayers approved for use in schools.
The revised regulation, which is now s. 28(1) of Regulation 262, R.R.O. 1980,
is repeated for convenience:
28.-(1) A public school shall be opened or closed each school day with
religious exercises consisting of the reading of the Scriptures or other
suitable readings and the repeating of the Lord's Prayer or other suitable
prayers. [Emphasis added.]
The revised regulations confer greater discretion on local school boards; While
Bible readings are not terminated as recommended by the Mackay Report, they may
now be replaced by 'other suitable readings'. As to prayers, the alternative to
the Lord's Prayer becomes "other suitable prayers' and is not limited to
'approved" prayers as before.
Since World War II, Ontario has changed from a population composed almost
entirely of Christians to an ethnically diverse, multi-religious and
multicultural society. The Attorney General submitted that, whereas nineteenth
century requirements for religious exercises
[Page 16]
recognized differences among Christian denominations, today's requirements must
recognize both interdenominational differences and those between Christians and
non-Christians.
This, it was said, was exemplified by the experience of the City of Toronto
public schools. As early as 1975, before the new regulations took effect in
1978, the Toronto Board of Education undertook a re-examination of religious
exercises. This led, in 1979, to the formation of an interdenominational
committee to recommend suitable prayers and religious readings. In 1980, the
committee published a book of prayers and readings which was revised in 1981
and again in 1984. The readings and prayers in the book are drawn from a number
of sources including Bahaism, Buddhism, Christianity, Confucianism, Hinduism,
Islam, Jainism, Judaism, People of Native Ancestry, Secular Humanism, Sikhism,
and Zoroastrianism. The book has been used in Toronto public schools for
opening exercises since 1980.
The exercises now consist of the singing of O Canada, the reading of one or
more selections from the book, followed by a moment of silent meditation and
sometimes by comments by the teacher or principal, on the origins of the
selections used. The Toronto program appears to have met with general
acceptance but we share the doubt, expressed by Reid J. at
[Page 17]
p. 773, whether it complies with s. 28(1) which requires both prayers and
readings.
It is against this background of legislation, fact and opinion that we now must
consider whether s. 28(1) of the Regulations infringes the Charter freedom of
conscience and religion. The approach to be taken in such an inquiry is now well
established by judicial decisions. The first step is to determine whether the
legislation in question prima facie interferes with a Charter right or freedom.
If such interference is established, the second step is to determine whether it
is justified under s. 1 of the Charter: see R. v. Oakes, 1986 CanLII 46
(S.C.C.), [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200.
4. DOES S. 28(1) OF THE REGULATIONS INFRINGE CHARTER FREEDOMS UNDER S. 2(a)?
(a) The nature of freedom of conscience and religion
The nature of the Charter freedom of conscience and religion was examined by
the Supreme Court of Canada in R. v. Big M Drug Mart, 1985 CanLII 69 (S.C.C.),
[1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321.
In that case, the Supreme Court held that the Lord's Day Act, R.S.C. 1970,
c. L-13, which required uniform observance of the Christian Sabbath, was
inconsistent with s. 2(a) of the Charter and for that reason was of no force or
effect under s. 52(1) of the Constitution Act, 1982, which provides:
[Page 18]
52(1) The Constitution of Canada is the supreme law of Canada, and any law
that is inconsistent with the provisions of the Constitution is, to the
extent of the inconsistency, of no force or effect.
Chief Justice Dickson, speaking for the court, eloquently described the meaning
of the words "freedom of conscience and religion". In its most traditional
sense, freedom of religion means the unimpeded freedom to hold, profess and
manifest religious beliefs, as he said at p. 336 S.C.R., p. 353 D.L.R..
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.
He continued by saying that "the concept means more than that" and stated that
the freedom can "be characterized by the absence of coercion or restraint".
He went on to say at p. 336 S.C.R., p. 354 D.L.R.:
Coercion includes not only such blatant forms of compulsion as direct commands
to act or refrain from acting on pain of sanction, coercion includes indirect
forms of control which determine or limit alternative courses of conduct
available to others. Freedom in a broad sense embraces both the absence of
coercion and constraint, and the right to manifest beliefs and practices.
[Page 19]
Another aspect of the Charter freedom of conscience and religion, which is of
particular significance in this case, is freedom from conformity. The practices
of a majoritarian religion cannot be imposed on religious minorities. The
minorities should not be subject to the "tyranny of the majority", as Chief
Justice Dickson said at p. 337 S.C.R., p. 354 D.L.R.:
What may appear good and true to a majoritarian religious group, or the State
acting at their behest, may not, for religious reasons, be imposed upon
citizens who take a contrary view. The Charter safeguards religious
minorities from the threat of "the tyranny of the majority".
Chief Justice Dickson also emphasized, in a passage of importance in this case,
that s. 2(a), by its very wording, protects the freedom of non-believers to
abstain from participation in any religious practices. He said at p. 347
S.C.R., p. 362 D.L.R.:
Equally protected, and for the same reasons, are expressions and
manifestations of religious non-belief and refusals to participate in
religious practice. It may perhaps be that freedom of conscience and religion
extends beyond these principles to prohibit other sorts of governmental
involvement in matters having to do with religion.
The only limitation upon an individual's freedom of conscience or religion
recognized by the Supreme Court of
[Page 20]
Canada is that its manifestation must not injure others or interfere with their
right to manifest their own beliefs and opinions. Dickson C.J. said at p. 346
S.C.R., p. 361 D.L.R.:
The values that underlie our political and philosophic traditions demand that
every individual be free to hold and to manifest whatever beliefs and opinions
his or her conscience dictates, provided, inter alia, only that such
manifestations do not injure his or her neighbours or their parallel rights
to hold and manifest beliefs and opinions of their own.
In Big M, Dickson C.J. declared at p. 343 S.C.R., p. 359 D.L.R., that s. 2(a)
of the Charter proclaimed freedom of conscience and religion in "ringing terms"
and applied the purposive approach enunciated in Hunter et al. v. Southam Inc.,
1984 CanLII 33 (S.C.C.), [1984] 2 S.C.R. 145, in interpreting the Charter at
p. 344 S.C.R., p. 360 D.L.R.:
The interpretation should be, as the judgment in Southam emphasizes, a
generous rather than a legalistic one, aimed at fulfilling the purpose of
the guarantee and securing for individuals the full benefit of the Charter's
protection.
This approach compels the re-evaluation of opening religious exercises in
public schools. It can no longer be assumed that Christian practices are
acceptable to the whole community. The extent of this change was emphasized by
the Supreme Court of Canada in Big M, where Dickson C.J. said at p. 351 S.C.R.,
p. 365 D.L.R.:
In an earlier time, when people believed in the collective
[Page 21]
responsibility of the community toward some deity, the enforcement of
religious conformity may have been a legitimate object of government, but
since the Charter, it is no longer legitimate. With the Charter, it has
become the right of every Canadian to work out for himself or herself what
his or her religious obligations, if any, should be and it is not for the
State to dictate otherwise. The State shall not use the criminal sanctions at
its disposal to achieve a religious purpose, namely, the uniform observance
of the day chosen by the Christian religion as its day of rest.
(b) Does s. 28(1) infringe the Charter freedom of conscience and religion?
In Sudbury, the Board's application of s. 28(1) of the Regulations imposes
Christian religious exercises in the schools. The Board has not exercised the
option open to it under s. 28(1) of providing non-Christian prayers and
non-Biblical readings. The possibility that the Board might exercise this
option does not, however, affect the outcome in this case. The substantive
issue here is whether s. 28(1), which makes it possible for the Board to
prescribe Christian religious exercises, violates s. 2(a) of the Charter.
On its face, s. 28(1) infringes the freedom of conscience and religion
guaranteed by s. 2(a) of the Charter. This was conceded by the respondents.
Section 28(1) is antithetical to the Charter objective of promoting freedom of
[Page 22]
conscience and religion. The recitation of the Lord's Prayer, which is a
Christian prayer, and the reading of Scriptures from the Christian Bible impose
Christian observances upon non-Christian pupils and religious observances on
non-believers.
The respondents, however, take the position that s. 28 viewed as a whole did
not violate the freedoms of conscience and religion guaranteed by s. 2(a) of
the Charter. They contend that the right to claim exemption from Christian
religious exercises, conferred by s-ss. 28(10), (11) and (12), eliminates any
suggestion of pressure or compulsion on non-Christian pupils to participate in
those exercises. Anderson J., as noted above, found it offensive to "logic and
common sense" that the necessity of requesting an exemption was a form of
'constraint, compulsion or coercion". At most, the Attorney General submitted,
the necessity of requesting an exemption might be an "embarrassment" but was
not coercive in its effect.
From the majoritarian standpoint, the respondent's argument is understandable
but, in our opinion, it does not reflect the reality of the situation faced by
members of religious minorities. Whether or not there is pressure or compulsion
must be assessed from their standpoint and, in particular, from the standpoint
of pupils in the sensitive
[Page 23]
setting of a public school. In saying this, we approve the analysis of Reid J.
in the Divisional Court at p. 769 where he said:
It may be that a control or limitation indirectly imposed is not readily
appreciable to those who are not affected by it. It may be difficult for
members of a majoritarian religious group, as I am, to appreciate the feelings
of members of what, in our society, are minority religions. It may be
difficult for religious people to appreciate the feelings of agnostics and
atheists. Yet nevertheless those feelings exist. No one has suggested that
the feelings expressed by applicants are not real, or that they do not run deep.
Later on the same page, he refers to the pressure operating on members of
religious minorities in deciding whether to participate in or seek exemption
from religious exercises:
... [I]f most of the pupils willingly conform, might not a few whose family
faith is Moslem, or Hebraic or Buddhist, feel awkward about seeking exemption?
Peer pressures, and the desire to conform, are notoriously effective with
children. Does common experience not tell us that these things are so, and
that such feelings might easily, and reasonably, lead some not to seek
exemption, and unwillingly conform, or others to seek it, and be forced to
suffer the consequences to their feelings and convictions?
While the majoritarian view may be that s. 28 confers freedom of choice on the
minority, the reality is that it imposes on religious minorities a compulsion
to conform to
[Page 24]
the religious practices of the majority. The evidence in this case supports this
view. The three appellants chose not to seek an exemption from religious
exercises because of their concern about differentiating their children from
other pupils. The peer pressure and the classroom norms to which children are
acutely sensitive, in our opinion, are real and pervasive and operate to compel
members of religious minorities to conform with majority religious practices.
We adopt the view on this issue expressed by Brennan J. in Abington School
District v. Schempp (1963), 374 U.S. 203 where he said at p. 288:
...[B]y requiring what is tantamount in the eyes of teachers and schoolmates
to a profession of disbelief, or at least of nonconformity, the procedure may
well deter those children who do not wish to participate for any reason based
upon the dictates of conscience from exercising an indisputably constitutional
right to be excused. Thus the excusal provision in its operation subjects them
to a cruel dilemma. In consequence, even devout children may well avoid
claiming their right and simply continue to participate in exercises
distasteful to them because of an understandable reluctance to be stigmatized
as atheists or nonconformists simply on the basis of their request.
Such reluctance to seek exemption seems all the more likely in view of the
fact that children are disinclined at this age to step out of line or to
flout "peer-group norms".
[Page 25]
We consider that s. 28(1) also infringes freedom of conscience and religion in
a broader sense. The requirement that pupils attend religious exercises, unless
exempt, compels students and parents to make a religious statement. We agree
with the the Mackay Committee that the effect of the exemption provisions is to
discriminate against religious minorities. It said at p. 24 of its Report:
It has been suggested to the Committee by several briefs that although the
present course of study may appear to leave children open to Protestant
religious indoctrination, the provisions for exemption of those whose parents
object to the teaching offset the exposure. It is our view ... that this
special treatment is in itself discriminatory and should as far as possible
be eliminated from the public school system. ... It is important to see
clearly where the responsibility in this situation lies: contrary to popular
belief, discrimination is not the problem of those who are discriminated
against but of the "smug majority" who permit the practice, and who alone
have the power to end it. The public schools must surely be kept free of
prejudices if society as a whole is to advance towards their elimination.
Every course or program in the public school should be designed to be
acceptable to all reasonable persons and, consequently, leave no
justification for requiring discriminatory exemptions.
Although this statement was made by the Committee with reference to religious
education, we think it applies equally to religious exercises.
[Page 26]
This conclusion of the Mackay Committee supports the appellants' argument, with
which we agree, that the right to be excused from class, or to be exempted from
participating, does not overcome the infringement of the Charter freedom of
conscience and religion by the mandated religious exercises. On the contrary,
the exemption provision imposes a penalty on pupils from religious minorities
who utilize it by stigmatizing them as non-conformists and setting them apart
from their fellow students who are members of the dominant religion. In our
opinion, the conclusion is inescapable that the exemption provision fails to
mitigate the infringement of freedom of conscience and religion by s. 28(1).
Other arguments were made for denying the applicability of s. 2(a) of the
Charter to religious exercises. It was contended that they did no harm to
pupils of minority religions. This assertion is not proven because, as earlier
indicated, there was a difference of expert opinion on whether or not minority
pupils were harmed. In any event, in our opinion, harm to individual pupils
need not be proved by those who object to s. 28(1). It is irrelevant to the real
issue which is whether the Charter freedom of conscience and religion is
infringed. There is no burden on those objecting to s. 28(1) on this ground to
prove, in addition, that it causes actual harm to individual pupils.
[Page 27]
The effect of religious exercises cannot be glossed over with the comment that
the exercises may be "good" for minority pupils. This view was expressed, as we
indicated above, by a psychologist in supporting the Board's case who said that
it was salutary for minority pupils to confront "the fact of their difference
from the majority". This insensitive approach, in our opinion, not only
depreciates the position of religious minorities but also fails to take into
account the feelings of young children. It is also inconsistent with the
multicultural nature of our society as recognized by s. 27 of the Charter which
declares:
27. This Charter shall be interpreted in a manner consistent with the
preservation and enhancement of the multicultural heritage of Canadians.
It was also argued that any infringement by s. 28(1) of the Charter freedom of
conscience and religion was so trivial and insubstantial that it was not worthy
of Charter protection. We reject this argument and, with respect, cannot agree
with O'Leary J. that it applies in this case. In our opinion, judged on a
purely factual basis, the denigration of the minorities' freedom of conscience
and religion by the operation of s. 28(1) constitutes an infringement of
s. 2(a) of the Charter which is not "insubstantial or trivial": see Jones v.
The Queen, 1986 CanLII 32 (S.C.C.), [1986] 2 S.C.R. 284, 31 D.L.R. (4th) 569
per Wilson J. at p. 314
[Page 28]
S.C.R., p. 578 D.L.R. and Edwards Books and Art Limited v. The Queen, 1986
CanLII 12 (S.C.C.), [1986] 2 S.C.R. 713, 35 D.L.R. (4th) 1 per Dickson C.J. at
pp. 759-760 S.C.R., pp. 34-35 D.L.R.
Counsel for the Board submitted that s. 28(1) of the Regulations was consistent
with the preamble of the Charter which declares:
Canada is founded upon principles that recognize the supremacy of God and the
rule of law.
It is a basic principle in the construction of statutes that a preamble is
rarely referred to and, even then, is usually employed only to clarify operative
provisions which are ambiguous. The same rule, in our view, extends to
constitutional instruments. There is no ambiguity in the meaning of s. 2(a) of
the Charter or doubt about its application in-this case. Whatever meaning may be
ascribed to the reference in the preamble to the "supremacy of God", it cannot
detract from the freedom of conscience and religion guaranteed by s. 2(a) which
is, it should be noted, a "rule of law" also recognized by the preamble.
Both the appellants and the respondents referred to two leading decisions of
the United States Supreme Court on state legislation which mandated opening
prayers and devotional bible readings in public schools but permitted pupils to
be excused if requested by their parents: Engel v. Vitale (1962), 370 U.S. 421
[Page 29]
and Abington School District v. Schempp, supra. The legislation in both cases
was declared unconstitutional because it violated the First Amendment of the
Constitution of the United States the relevant part of which reads:
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof.
The first part of the First Amendment is referred to in United States
constitutional law as the "establishment clause" and the second as the "free
exercise clause". In both cases, the court held the legislation to be invalid
because it violated the establishment clause.
The respondents argued that, because the Charter contained no establishment
clause, s. 28(1) could not be invalidated. A similar argument was made in Big M,
supra, but was rejected by Chief Justice Dickson who said at at p. 339 S.C.R.,
p. 356 D.L.R.:
In my view this recourse to categories from the American jurisprudence is not
particularly helpful in defining the meaning of freedom of conscience and
religion under the Charter. The adoption in the United States of the
categories "establishment" and "free exercise" is perhaps an inevitable
consequence of the wording of the First Amendment. The cases illustrate,
however, that these are not two totally separate and distinct categories, but
rather, as the Supreme Court of the United States has frequently recognized,
in specific instances "the two clauses may overlap".
[Page 30]
He concluded that American decisions on freedom of religion must be applied
with care by Canadian courts and said at p. 341 S.C.R., p. 357 D.L.R.:
In my view the applicability of the Charter guarantee of freedom of conscience
and religion does not depend on the presence or absence of an "anti-
establishment principle" in the Canadian Constitution, a principle which can
only further obfuscate an already difficult area of the law.
The United States Supreme Court had no difficulty in striking down the
legislation in the Engel and Abington cases under the establishment clause. The
justices, however, in obiter differed on whether the legislation also offended
the free exercise clause. In Engel, the justices were of the view that mandatory
school prayer with an exemption provision did not appear to be coercive enough
to constitute a free exercise clause violation. Their opinions echoed that of
Justice Jackson in McCollum v. Board of Education (1948), 333 U.S. 203 at p. 232
that the risk of embarrassment of non-conforming students seeking exemption from
religious instruction did not amount to coercion.
While the majority judgment in Abington struck down the legislation on the basis
of the establishment clause, Justice Brennan, in a concurring opinion, held that
it also violated the free exercise clause. He said at p. 288:
The more difficult question, however, is whether the availability
[Page 31]
of excusal for the dissenting child serves to refute challenges to these
practices under the Free Exercise Clause. While it is enough to decide these
cases to dispose of the establishment questions, questions of free exercise
are so inextricably interwoven into the history and present status of these
practices as to justify disposition of this second aspect of the excusal
issue. The answer is that the excusal procedure itself necessarily operates
in such a way as to infringe the rights of free exercise of those children who
wish to be excused. We have held ... that a State may require neither public
school students nor candidates for an office of public trust to profess
beliefs offensive to religious principles. By the same token the State could
not constitutionally require a student to profess publicly his disbelief as
the prerequisite to the exercise of his constitutional right of abstention.
[Emphasis added.]
As indicated above, we adopt his view that the excusal clause did not preclude
a finding of coercion because pupils under peer pressure would be reluctant to
call attention to their differences by taking advantage of it. Like Brennan J.
we are also of the opinion that the exemption procedure has the chilling effect
of discouraging the free exercise of the freedom of conscience and religion.
He said at p. 288:
... Moreover, the excusal procedure seems to me to operate in such a way as
to discourage the free exercise of religion on the part of those who might
wish to utilize it, thereby rendering it unconstitutional in an additional
and quite distinct respect.
[Page 32]
Two conclusions can be drawn from the American decisions. The first is that the
absence of an establishment clause in s. 2(a) does not limit the protection it
gives to freedom of conscience and religion. The second is that support can be
found in Abington, the most recent major decision on school prayer, for our
conclusion that the compulsion on students to conform and not exercise the
right of exemption is a real restraint on the freedom of conscience and
religion guaranteed by the Charter.
(c) Can s. 1 be invoked to justify the Charter infringement?
It follows from our analysis that s. 28(1) of the Regulations constitutes a
prima facie infringement of the appellants' rights under s. 2(a) of the Charter.
In a usual Charter case, the burden passes at this stage to the parties
upholding the Charter infringement to show on a balance of probabilities that
it is justifiable under s. 1 of the Charter: R. v. Oakes, supra. In this case,
however, the appellants contended that, since the very purpose of s. 28 of the
Regulations violated s. 2(a) of the Charter, it was incapable of justification
under s. 1.
In making this argument, the appellants relied on Big M where the Supreme Court
found that the true purpose of the Lord's Day Act was to "compel the observance
of the
[Page 33]
Christian Sabbath". Dickson C.J. said at p. 353 S.C.R., p. 367 D.L.R.:
The characterization of the purpose of the Act as one which compels religious
observance renders it unnecessary to decide the question of whether s. 1
could validate such legislation whose purpose was otherwise or whether the
evidence would be sufficient to discharge the onus upon the appellant to
demonstrate the justification advanced.
He rejected the argument that the Act might be validated under s. 1 because it
accomplished an important secular objective in providing for a weekly day of
rest from work. On this point, he said at p. 353 S.C.R., p. 366 D.L.R.:
It seems disingenuous to say that the legislation is valid criminal law and
offends s. 2(a) because it compels the observance of a Christian religious
duty, yet is still a reasonable limit demonstrably justifiable because it
achieves the secular objective the legislators did not primarily intend.
The appellant can no more assert under s. 1 a secular objective to validate
legislation which in pith and substance involves a religious matter than it
could assert a secular objective as the basis for the argument that the
legislation does not offend s. 2(a).
He also emphasized that it was the initial purpose of the legislation which
determined its true character and that this was not changed by any alteration
in its effects as a result
[Page 34]
of changing times and circumstances. He said at p. 336 S.C.R., p. 353 D.L.R.:
While the effect of such legislation as the Lord's Day Act may be more secular
today than it was in 1677 or 1906, such a finding cannot justify a conclusion
that its purpose has similarly changed. In result, therefore, the Lord's Day
Act must be characterized as it has always been, a law the primary purpose of
which is the compulsion of sabbatical observance.
In contrast, the Supreme Court's decision in Edwards Books, supra, held that the
Retail Business Holidays Act, R.S.O. 1980, c. 453, which prescribed Sunday as a
holiday for retail stores, was not religiously motivated but was enacted for the
secular purpose of providing uniform holidays for retail workers. Although it
infringed the religious freedoms of members of minority religions whose Sabbath
was on a day other than Sunday, it was held to be justifiable under s. 1 and its
validity under the Charter was upheld.
The appellants contended that there was no saving secular purpose in s. 28(1).
Its wording and, in the appellant's submission, its legislative background going
back to the earliest times indicated that its purpose was religious and that,
like the Lord's Day Act in Big M, it was incapable of justification under s. 1.
The Attorney General and the Board, on the other hand, asserted that s. 28(1) had
[Page 35]
paramount secular objectives, both educational and moral, and that the religious
exercises served those purposes. In support of their arguments, counsel on both
sides referred us to the reports of the Hope Commission, the Mackay Committee,
and other historical materials.
After a careful consideration of the Act, the Regulations, and other materials
placed before us, we have concluded that the purpose of Regulation 28(1) is
religious and that the exercises mandated by the Regulation were intended to be
religious exercises. This is the only conclusion which can be drawn from the
wording of the Act and the Regulations. This view is confirmed by the specific
provision for exemption contained in s. 50(2) of the Act which for illustrative
purposes we repeat:
(2) No pupil in a public school shall be required to read or study in or from
a religious book, or to join in an exercise of devotion or religion, objected
to by his parent or guardian, or by the pupil, where he is an adult.
It is clear that the exemption provision is included in the Act because the
exercises were intended to serve religious and not secular purposes.
At their inception in 1816, there is no doubt that the opening and closing
religious exercises were intended to serve the purpose of imbuing education
with Christian
[Page 36]
principles. Later in the nineteenth century, when the exercises were made
mandatory, there was again no doubt as to their religious purpose. Dr. Egerton
Ryerson, the founder of Ontario's public school system, stated in his "Report on
a System of Public Elementary Education of Upper Canada" that "as Christianity
is the basis of our whole system of elementary education, that principle should
pervade throughout". The objective of the religious exercises mandated in the
nineteenth century was not changed in this century. When the Regulations were
last amended in 1978, it can be taken that they reflected the conclusions of
the Mackay Committee of 1969, quoted above, that the exercises were intended to
continue to serve a religious purpose. The Mackay Committee at p. 34 accepted
the view that:
[t]he absence of opening exercises would indicate that religion was not an
integral part of life and make the school wholly secular. Opening exercises,
reverently conducted, could set the tone for the day and give strength and
peace of mind. Learning to worship at the beginning of each day may initiate
in the child a habit which will govern his attitudes and conduct.
In this case it cannot be argued, as it was in Big M, that over time the purpose
of the impugned regulation had shifted from religious to secular objectives. Its
religious character was reinforced by the Mackay Report. The opening exercises
may have secular moral and educational effects but
[Page 37]
these are, in our opinion, merely derivative from their religious objective.
It is the purpose and not the impact of legislation which is determinative for
constitutional purposes. Dickson C.J.C. said in Big M, at p. 331 S.C.R., p. 350
D.L.R.:
Moreover, consideration of the object of legislation is vital if rights are
to be fully protected. The assessment by the courts of legislative purpose
focuses scrutiny upon the aims and objectives of the Legislature and ensures
they are consonant with the guarantees enshrined in the Charter. The
declaration that certain objects lie outside the Legislature's power checks
governmental action at the first stage of unconstitutional conduct. Further,
it will provide more ready and more vigorous protection of constitutional
rights by obviating the individual litigant's need to prove effects
effects violative of Charter rights. It will also allow courts to dispose of
cases where the object is clearly improper, without inquiring into the
legislation's actual impact.
Chief Justice Dickson then referred with approval to A.-G. Que. v. Quebec Ass'n
of Protestant School Boards et al., 1984 CanLII 32 (S.C.C.), (1984] 2 S.C.R. 66,
10 D.L.R. (4th) 321 at p. 332 S.C.R., p. 351 D.L.R.:
I would note that this approach would seem to have been taken by this court,
in its unanimous decision in A.-G. Que. v. Quebec Ass'n of Protestant School
Boards et al. ... When the court looked for an obvious example of legislation
that constituted a total negation of a right guaranteed by the Charter, and
therefore one to which the limitation
[Page 38]
in s. 1 of the Charter could not apply, it recited the following hypothetical
at p. 88 S.C.R., p. 338 D.L.R.:
An Act of Parliament. or of a legislature which, for example, purported to
impose the beliefs of a State religion would be in direct conflict with s. 2
(a) of the Charter, which guarantees freedom of conscience and religion, and
would have to be ruled of no force or effect without the necessity of even
considering whether such legislation could be legitimized by s. 1.
5. COULD SECTION 28(1) HAVE BEEN JUSTIFIED UNDER SECTION 1 OF THE CHARTER?
Although we have concluded that this Charter . infringement is incapable of
justification under s. 1, we think it proper to state that the result would be
the same if s. 1 applied. For convenience, we repeat the section which reads as
follows:
1. The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic society.
In R. v. Oakes, supra, at pp. 138-140, the Supreme Court of Canada laid down
the procedure which must be followed in deciding whether legislation infringing
Charter
[Page 39]
rights can be justified under s. 1. First, it must be determined whether the
legislative objective is sufficiently important to warrant overriding the
Charter right or freedom. If it is, then the party invoking s. 1 must show that
the means chosen are reasonable and demonstrably justified. This, in turn,
requires the application of the three components of what the Supreme Court of
Canada called the "proportionality test", which requires a balancing of the
objective of the legislation with its effects. The first question to be asked
is whether the legislation is rationally connected to the objective. The second
is whether the means chosen impair the Charter right or freedom as little as
possible. The third is whether there is proportionality between the objective
and the effects of the measures in limiting Charter rights or freedoms.
It is not necessary, in this case, to conduct a ritualistic step-by-step inquiry
under each of the four elements of the Oakes test. If the respondent fails under
one element of the test, the Charter infringement cannot be justified. We
propose, therefore, to consider the most vulnerable element of the test from
the respondent's standpoint which is whether s. 28(1) impairs the appellants'
freedoms under s. 2(a) "as little as possible". For the purposes of this inquiry
we will assume, without deciding, that s. 28(1) could have been justified under
the first two
[Page 40]
elements of the test as having an objective sufficiently important to warrant
overriding the Charter freedom under s. 2(a) and as being rationally connected
to the attainment of that objective.
The experience of the Toronto Board of Education convincingly demonstrates that
there are less intrusive ways of imparting educational and moral values than
those provided in s. 28. The Toronto experience, which was fully described above
and need not be repeated here, shows that it is not necessary to give primacy to
the Christian religion in school opening exercises and that they can be more
appropriately founded upon the multicultural traditions of our society. In saying
this we are not to be taken as passing a constitutional judgment on the opening
exercises used in Toronto public schools. They were not in issue before us and
we express no opinion as to whether they might give rise to Charter scrutiny.
6. CONCLUSION
Since s. 28(1) infringes the appellants' Charter freedoms and could not, in any
event, have been justified under s. 1, the appellants are entitled to the
declaration they seek under s. 52 of the Constitution Act, 1982 that s. 28(1) of
the Regulations is of no force and effect.
[Page 41]
The appellants also appeal against the Divisional Court's dismissal of their
application for a declaration that s. 50 of the Education Act and s. 28 of the
Regulations violate s. 15(1) of the Charter, the Religious Freedom Act, R.S.O.
1980, c. 444 and the Ontario Human Rights Code, S.O. 1981, c. 53. In view of
our decision on the application of the Charter in this case, it is unnecessary
to address these issues.
In the result we allow the appeal, set aside the order of the Divisional Court
and, in its place, direct that a declaratory judgment in the terms set out
above be entered for the appellants. The appellants shall have their costs in
this court as well as in the Divisional Court but there will be no costs for
the intervenors.
[S]
[S]
[S]
[S]
LACOURCIERE J.A. (dissenting):
I have had the advantage of reading the reasons for judgment prepared by my
colleagues. They canvass the factual and historical backgrounds and it is
unnecessary for me to repeat what has been comprehensively reviewed by them.
With respect, I am unable to agree that s.50 of the Education Act and s.28(1)
of Regulation 262 infringe the freedom of conscience and religion guaranteed by
s.2(a) of the Charter. I am further of the opinion that while s.28 does not
infringe the equality rights guaranteed by s.15 of the Charter, the prevailing
practice of the Sudbury Board of Education at the relevant time constituted a
violation of that section. I agree with the conclusion of the Divisional Court
on the main ground of appeal, basically for the reasons given by the majority,
but I would like to state my own reasons for the disposition of the appeal which
I propose. I will deal first with the argument based on s.2(a) of the Charter,
considering separately the purpose and effect of the impugned regulation, before
considering s.15.
I. WHETHER S.28 OF THE REGULATION IS AN INFRINGEMENT OF S.2(a) OF THE CHARTER
A. The Purpose of Section 28
The initial test of the constitutional validity of legislation requires an
examination of its purpose. In R. v. Big M Drug Mart Ltd., 1985 CanLII 69
(S.C.C.), [1985] 1 S.C.R. 295, Chief Justice Dickson (then Dickson J.) said at
p.331:
[Page 2]
..In my view, both purpose and effect are relevant in determining
constitutionality; either an unconstitutional purpose or an unconstitutional
effect can invalidate legislation....
And at p.334 he said:
...[T]he legislation's purpose is the initial test of constitutional validity
and its effects are to be considered when the law under review has passed or,
at least, has purportedly passed the purpose test....
In my opinion, s.28(1) has a secular educational purpose with a religious
component. ...
...
[Page 39]
I agree with the majority in the Divisional Court that there is no reason why a
child should feel coerced into participating in religious exercises.
Similarly, in R. v. Videoflicks, supra, Tarnopolsky J.A. suggested at p.428 that
a broad, unqualified exemption clause would have removed the element of
coercion: in that case, the inducement of persons who observe a Sabbath other
than Sunday to conform with the Sunday closing requirement of the Retail
Business Holidays Act.
C. Conclusion On S.2A Argument
In my opinion the challenged legislation has a broad secular purpose, which is
both educational and pedagogical. While it has a religious component, its
purpose is not coercive. The legislation does not attempt, directly or
indirectly, to pressure public school children to participate in any religious
exercise. Further, the Regulation cannot properly be said to have a coercive
effect. In any event, the Canadian Constitution contemplates a bridge rather
than a wall of separation between church and state, so that even a religious
purpose or an incidental religious effect would not render the challenged
legislation unconstitutional.
I have therefore concluded that s.50 of the Education Act and s.28 of Regulation
262 do not violate s.2(a) of the Charter. I find it thus unnecessary to consider
any justifications of the legislation under s.l of the Charter.
[Page 40]
II - SECTION 15 CHALLENGE
The appellants have argued that the impugned Regulation violates the equality
rights guaranteed by s.15 of the Charter because it (i) can be applied in a
discriminatory manner; reveals a preference for Christian prayers and readings;
and discriminates against non-believers on the basis of religion. Section 15
provides as follows:
15. (1) Every individual is equal before and under the law and has the right
to the equal protection and equal benefit of the law without discrimination
and, in particular, without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.
***
15.(1) La loi ne fait acception de personne et s'applique également à tous,
et tous ont droit à la même protection et au même bénéfice de la loi,
indépendamment de toute discrimination, notamment des discriminations fondées
sur la race, l'origine nationale ou ethnique, la couleur, la religion,
le sexe, l'âge ou les déficiences mentales ou physiques.
Section 52(1) of the Charter provides:
52. (1) The Constitution of Canada is the supreme law of Canada, and any law
that is inconsistent with the provisions of the Constitution is, to the
extent of the inconsistency, of no force or effect.
***
52. (1) La Constitution du Canada est la loi suprême du Canada; elle rend
inopérantes les dispositions incompatibles de toute autre règle de droit.
[Page 41]
As stated by Chief Justice Dickson in Big M at p.351, in a society with a
diversity of belief and non-belief, such diversity makes it "constitutionally
incompetent for the federal Parliament to provide legislative preference for any
one religion at the expense of those of another religious persuasion". This
statement also applies to provincial legislation and may be read together with
the statement at p.347:
...The equality necessary to support religious freedom does not require
identical treatment of all religions. In fact, the interests of true equality
may well require differentiation in treatment.
In light of the above passages from Big M, I agree with the conclusion of the
majority of the Divisional Court that the legislation itself does not violate
s.15. The fact that a statute or regulation may be improperly interpreted or
applied in a discriminatory manner does not mean that the legislation itself
infringes s.15. In my view, the reference in s.28 to the Scriptures and the
Lord's Prayer are given by way of illustration of the sort of exercise
contemplated, without preference for Christian texts over other suitable
readings and prayers. Non-religious persons may be accommodated by readings on
secular humanism such as are included in the Toronto Board's book of readings.
The selection by the Legislature of Scriptures and the Lord's Prayer as an
illustration of suitable readings and prayers is in conformity with the
Christian heritage of the majority. As Chief Justice Dickson has said in
Edwards Books, supra, at p.743,
[Page 42]
"our society is collectively powerless to repudiate its history, including the
Christian heritage of the majority."
The Lord's Prayer, admittedly of Christian origin, perhaps because it does not
mention Christ, has gained such wide acceptance that it is regarded by many as
ecumenical and so acceptable to other religious groups as to make it universal.
It reads as follows:
Our Father, Who art in Heaven, hallowed be Thy name, Thy kingdom come, Thy
will be done in earth as it is in Heaven; give us this day our daily bread;
and forgive us our trespasses as we forgive them that trespass against us;
and lead us not into temptation, but deliver us from evil: For thine is the
kingdom, and the power, and the glory, for ever. Amen.
Holy Bible: St. Matthew 6: 9-13.
I find it difficult to see how its words could offend any religious group.
However, if, contrary to my opinion, the reference to it and to the Scriptures
in the Regulation appear to favour the Christian faith, or if the Regulation is
interpreted as having that effect, thereby limiting the use of other suitable
readings and prayers, the appropriate remedy would not, in my opinion, require
that the entire Regulation be struck down. In accordance with s.52(1) of the
Charter, the court would be entitled to hold that the Regulation, to the extent
of the inconsistency with the Charter, is of no force and effect. Section 28(1)
would then read:
A public school shall be opened or closed each school day with religious
exercises consisting of suitable readings and suitable prayers.
The deletion would render the section clearly non-discriminatory.
[Page 43]
However, my interpretation of the impugned words of s.28 is examples of a
suitable prayer and readings, does not lead to :he conclusion that there is a
legislative preference for :hristian tradition. I therefore find it unnecessary
to delete the references to the Lord's Prayer and the Scriptures in order to
reserve the constitutional validity of the section.
The s.15 challenge against the actual practice of the Sudbury Board of Education
with respect to its opening exercises is more persuasive than the attack against
the wording of s.28 of the Regulation. It is clear that the practice of the
Sudbury Board has been to formally open each school day by the singing of
"O Canada" and the recitation of the "Lord's Prayer", often followed by
Scripture readings or Biblical stories, in order to encourage respect for the
moral principles emphasized within the Judeo-Christian tradition. This practice
may be explained by the fact that the Board has never been requested to
incorporate other prayers or readings in the opening exercises, although it has
now expressed its willingness to vary its present practice.
In determining whether the practice of the Sudbury Board is discriminatory and
therefore violates s.15(1) of the Charter, it is not necessary to enter into a
step-by-step analysis, as recommended in R. v. Ertel (1987), 58 C.R. (3d) 253
at 271 et ma. It is sufficient to state that the practice of the Board, in
conducting opening exercises based exclusively in the Christian religious
tradition, may be deemed discriminatory in the sense
[Page 44]
that it gives preference to that tradition at the expense of all non-Christians.
This has an adverse impact on the equality rights of non-Christians, thereby
infringing s.15(1) of the Charter (Re McKinney and Board of Governors of the
University of Guelph et al. and eight other applications 1987 CanLII 179
(ON C.A.), (1987), 63 O.R. (2d) 1 at 40.). This infringement cannot be justified
under s.l of the Charter, as there are other ways, which are less intrusive on
the equality rights of religious minorities, to implement religious exercises
which encourage respect for moral principles. An example of one such practice is
that of the Toronto Board, which has implemented opening exercises consisting of
suitable readings and prayers from a variety of traditions.
The appellants do not now seek a variation of the Sudbury Board's practice but,
as previously mentioned, seek the abolition of all religious exercises in school
as a matter of freedom of conscience. The majority of the Divisional Court,
having found the impugned legislation to be valid, purported to exercise its
discretion by refusing to prohibit the respondent Board or its director from
implementing daily opening exercises of a more ecumenical nature. If the
application before the court had been made under s.24(1) of the Charter,
claiming that the applicants' freedom of conscience had been infringed or
denied, the court could have considered granting as a remedy the order of
prohibition sought. The applicants' defective procedure should not prevent the
court from granting the appropriate Charter remedy.
[Page 45]
In my opinion, it would have been appropriate and just to grant the order of
prohibition. The practice of the Sudbury Board constitutes a prima facie
violation of the equality provisions of the Charter by favouring the Christian
religion in the school opening exercises. This violation cannot be justified
under s.l of the Charter. The fact that the applicants had not requested any
change in the Board's practice should not deprive them of a remedy where a clear
violation of a constitutionally entrenched freedom is continuing. However, the
appellants' failure to request a voluntary change of practice before launching
this application after s.15 came into effect on April 17, 1985 may be taken into
account in assessing the costs of the application.
I would affirm that portion of the Divisional Court judgment which supports the
constitutional validity of s.50 of the Education Act and of s.28 of Regulation
262, but I would allow the appeal, in part, to vary the judgment by adding a
declaration that the prevailing practice of the Sudbury Board of Education and
its Director of Education, in conducting its daily opening exercises, violates
s.15 of the Charter, and by adding an order in the nature of prohibition to
compel those responsible to comply with s.15 of the Charter, as indicated.
I would not allow any costs in favour of or against any party or intervener in
this court or in the Divisional Court.
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