S.L. v. Commission scolaire des Chênes, 2012 SCC 7
This morning, the Supreme Court of Canada released an important decision on freedom of conscience and religion as protected by s. 2(a) of the Canadian Charter of Rights and Freedoms. The case related to an "Ethics and Religious Culture" or "ERC" course implemented by a Quebec school board, the Commission scolaire des Chênes.
The implementation of the ERC course was challenged by the parents of two school aged children who established a sincere belief as to their obligation to pass on the precepts of the Catholic religion to their children. The parents had applied to have their children exempted from attending the ERC course, but their applications were refused by the board.
The trial judge found that the ERC course consisted of an objective presentation of various religions, and did not place children "in an obligatory and coercive situation". In other words, it was found that this course did not serve to indoctrinate children towards any particular religious viewpoints, but rather taught them about some of the religious belief systems around them. Consequently, the trial judge dismissed the parents' application for a declaration that the implementation of the course constituted a violation of s. 2(a), and the Court of Appeal affirmed this decision.
In dismissing the challenge, Deschamps J. affirmed the point established in such cases as Syndicat Northcrest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551 that a person invoking rights under s. 2(a) 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. As Lebel J. stated in his concurring reasons, "the courts do not search an applicant's soul or conscience and do not seek to become theologians."
However, Deschamps J. also explained that although the above approach continues to apply to proving the existence of a religious belief or practice, a violation of such a belief cannot simply be based upon a sincere belief on the part of the person that their freedom of religion has been infringed. Rather, at this infringement stage, the person must still establish the violation on a balance of probabilities based upon objective evidence.
In this case, the parents' clearly had a sincere belief as to their obligation to pass on the Catholic faith to their children. However, the evidence did not show that the parents' or the children's freedom of religion was violated since the course material then before the Court was sufficiently neutral in its treatment of different religions, and did not seek to indoctrinate the children into any particular religious belief system. While Deschamps J. noted that absolute neutrality can never exist in a governmental program, "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" (para. 32).
Clearly, the Supreme Court had little sympathy for the parents' view that exposing their children to facts regarding different cultural and religious belief systems infringes freedom of religion. In fact, Deschamps J. stated that their argument "amounts to a rejection of the multicultural reality of Canadian society" (para. 40). Quoting Chief Justice McLachlin in Chamberlain v. Surrey School District No. 36, 2002 SCC 86, [2002] 4 S.C.R. 710, she also emphasized that "Exposure to some cognitive dissonance is arguably necessary if children are to be taught what tolerance itself involves."
In concurring reasons, Lebel J. (Fish J. concurring), defined the fundamental questions as follows:
[I]s it a program that will provide all students with better knowledge of society's diversity and teach them to be open to differences? Or is it an educational tool designed to get religion out of children's heads by taking an essentially agnostic or atheistic approach that denies any theoretical validity to the religious experience and religious values? Is the program consistent with the notion of secularism that has gradually been developed in constitutional cases, particularly in the field of education?
Lebel J. agreed that the Constitutional challenge to the course, and the appeal, had to be dismissed. However, he also emphasized that the record before the Court was insufficient to determine whether or not the course might actually result in a violation of the applicants' freedom of conscience and religion since the challenge had been brought immediately upon the course's implementation, and there was no evidence as to how it was actually conducted. He therefore would have left open the possibility that the course could result in a violation of religious freedom in the future.
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