jeudi 5 mai 2011

Quebec's Attorney General says nothing "about exemptions, alternate delivery or opt-out provisions except to denigrate them as potentially damaging"

We reproduce below the factum of the Canadian Council of Christian Charities which has been granted the status of intervener at the forthcoming hearing in front of the Supreme Court of Canada in the case opposing a couple of Drummondville parents and their Quebec regional school board who refused granting them an exemption to the Ethics and Religious Culture course (ERC).

This part of the factum had to be no longer than ten pages long.


1. The Canadian Council of Christian Charities (“CCCC”) was granted leave to intervene in this Appeal and to file a Factum of 10 pages by the Order of the Honourable Charron J. on March 28, 2011. The CCCC has also sought leave to make oral arguments at the Hearing of this matter. The CCCC accepts the facts as set out in the Appellant’s Factum.


2. The CCCC submits that the Central Question on this Appeal is as follows: Is the Refusal by the Province of Quebec to grant exemptions to parents who are opposed to a compulsory program on ethics and religious culture (“ERC”) inconsistent with the provisions of the Quebec Charter and the Canadian Charter of Rights and Freedoms and if so, in what particular or particulars and in what respect?


3. Each of the rights enshrined in Section 2 of the Charter requires a wide and liberal understanding, and also requires attention to the public benefit conferred by the right. Therefore, freedom of conscience and religion, thought, belief, opinion and expression, assembly and association must all be expansively and contextually considered.1

4. The associational dimension of freedom of religion has been well described by Professor David Schneiderman when he states:
If group purposes will clash, then the state should aim to respect, to the greatest degree possible, the varied purposes for which people gather together. Too often this aim results in having to make difficult choices between associational purposes. In these instances, pluralists will call upon state actors to take care that they do not impair associational rights more than is necessary. Courts have often not been so careful. They have assumed a unity of purpose between state and society that should not so readily be presumed […] To the extent, then, that a pluralist theory of the constitution accommodates vulnerable communities and subcultures, the world will have been made a safer place. Associational rights, in this way, generate resources for survival in a modern setting.2

5. The Respondents, in various ways, have put forward a compartmentalized view of children as students. In this view, they have placed an onus on parents to demonstrate that what the Province requires in the ERC somehow interferes with the religious beliefs of parents in the home and church (AGQ[=Quebec Attorney-General] Factum paras. 145, 147). With respect, this gets the priority of the issues back to front. The parents, as the primary educators of their children, delegate that authority to the province. They object to a compulsory course that they believe is offensive to their beliefs. They have a right to do so. Since the course is compulsory for private confessional as well as public schools, there is nowhere outside the course except, perhaps, home education which not every parent may wish or can afford. This compartmentalization of "school" and "home/church" fails to have regard to the virtual monopoly that public education has and the fact that "exams" prove the "rightness" of certain answers in areas that might be highly contested. The AGQ position, therefore, fails to accord respect to religion and, in effect, denies appropriate access to an important part of the public sphere – public education.

6. In the alternative, the AGQ has not addressed whether other means exist whereby parents might teach to certain proposed outcomes in the way that they, the parents, believe better comports with their belief systems. The insistence that there is only one view of ethics and religious culture and that is the form dictated by the province, smacks of a dictatorial or totalitarian spirit not that of a "free and democratic society" maximally concerned with achieving meaningful pluralism and respecting diversity. Stating that the course itself, in the Province`s view, is plural and acceptable does not make it so to those who, in their own judgment, disagree. Pursuit of the common good is, indeed, a laudable goal but in the public sphere a province must be aware that not everyone may agree with how the province has characterized ethics or religion. Freedom requires open-ness to disagreement.

7. In addition to section 2 rights, section 27 recognizes that in Canada, there is a public benefit conferred by multiculturalism. In R. v. S. (R.D.), Cory J. noted:
Canada is not an insular, homogeneous society. It is enriched by the presence and contributions of citizens of many different races, nationalities and ethnic origins. The multicultural nature of Canadian society has been recognized in s. 27 of the Charter. Section 27 provides that the Charter itself is to be interpreted in a manner that is consistent with the preservation and enhancement of the multicultural heritage of Canadians.3
8. The public policy in question before this honourable court is how the Charters` (both Quebec and Canadian) recognitions of the freedoms of conscience and religion should be interpreted so as to avoid any feeble notions of pluralism and best further a welcoming public place for citizens of all different belief systems (whether religious or non-religious). By approaching the question as one in which a religious group was “entering” some public sphere implicitly “not-religious,” or where something had to be given up for a greater provincial purpose, the province minimized the public role and involvement of religion and, therefore, threatened its public rights and benefits. Such marginalization or stereotypical treatments of religion are recognized to pose a threat to religious groups generally and to the enormous benefits to public life that have come from Christianity in Canada. This court has noted, with approval, the statement of a scholar, Professor Cole, who wrote that:
Religious organizations based on claims to unchanging truths are a stabilizing influence in an increasingly fast-paced and atomized society where bonds of community are scarce and worth preserving. Moreover, many provide needed (sic) social services that government is unwilling or unable to provide in a cost-efficient or humane manner.4
Actions of government or the courts, therefore, that put pressure on the public dimension of religious activity will have serious consequences and should, where possible, be avoided. Accommodation and associational pluralism are the antidotes to secularism and, as this Court has noted with approval: “religious practices deserve legal protection…because it is fundamentally important that government respect the sincerely-held religious beliefs of its citizens.”5 For religious parents a significant part of their religious rights is the belief, recognized by law, that as much as possible they should be able to pass on their beliefs and religious heritage to their children unhindered and un-coerced by the State.

9. It is submitted that a purposive interpretation of the Quebec Charter or Canadian Charter requires recognition of the “public benefit” and associational autonomy which religion provides and nurtures. Such public benefit of religion is already well recognized in charitable and other laws in Canada and elsewhere and, with respect, should be more widely accepted in Canadian jurisprudence. There is no comparable passage in Canadian law which expressly recognizes the positive role that religions play in our common life to the following passages from South African decisions:
A judgment exemplifying a positive conception of the role of religion to South African society is. Though a decade-old decision from the Constitutional Court of South Africa in the case of Christian Education v. The Minister of Education, was referred to more recently in a Supreme Court of Canada decision touching on religious rights, the following critical passage was not referred to by the Canadian judges:
For many believers, their relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe. For millions in all walks of life, religion provides support and nurture and a framework for individual and social stability and growth. Religious belief has the capacity to awaken concepts of self-worth and human dignity which form the cornerstone of human rights. It affects the believer’s view of society and founds the distinction between right and wrong.6
Note here that religion is recognized as having a social dimension as well as a personal or individual dimension and that the manner in which religion is described helpfully situates it for contextual analysis in the case at bar This is important as some commentators (and a few Canadian legal decisions) have suggested that the right of religion is essentially individualistic; this is a serious error. The passage above shows a greater awareness of the social importance of religion.

10. Nowhere can a passage be found in a Canadian Supreme Court decision, or any other Canadian decision that says the sort of thing referred to above from the Christian Education decision in South Africa. Canadian judges, to the detriment of the confidence of religious associations, seem, with respect, unduly diffident about the important cultural role of religion or, alternatively, do not speak in such encouraging terms about it. This hesitance does not assist the public respect for religions or a richer conception of pluralism which should include religious pluralism.

11. Similarly, in its Fourie decision, the majority of the Constitutional Court of South Africa found religious beliefs and their associations to be socially important in these terms:
Religious bodies play a large and important part in public life, through schools, hospitals and poverty relief programmes. They command ethical behaviour from their members and bear witness to the exercise of power by state and private agencies; they promote music, art and theatre; they provide halls for community activities, and conduct a great variety of social activities for their members and the general public. They are part of the fabric of public life, and constitute active elements of the diverse and pluralistic nation contemplated by the Constitution. Religion is not just a question of belief or doctrine. It is part of a people’s temper and culture, and for many believers a significant part of their way of life. Religious organisations constitute important sectors of national life and accordingly have a right to express themselves to government and the courts on the great issues of the day. They are active participants in public affairs fully entitled to have their say with regard to the way law is made and applied.7
12. Canadian law appears to be slowly developing a richer understanding of how forced coercion to the acceptance of a “one size fits all” conception is antithetical to the embrace of genuine diversity and freedom. Different views about ethical frameworks in comparative religion are allowed in a free and democratic society. The State has no prior right or authority to determine what approach to ethics or comparative religion should trump the views of parents in relation the education of their young. Commenting on the risk of describing ones own position as neutral and diminishing the importance of another person perspective, Stanley Fish has argued:
A difference of opinion you respect is an opinion held by someone who argues from the same premises and with the same tools you do; an opinion you merely tolerate - although we won't imprison you for holding it, neither will we take any account of it in the process of formulating policy - is an opinion held by someone who argues from premises and with tools you and your friends find provincial at best and dangerous (because fanatical) at worst. It is at this point that you dismiss those premises (i.e., biblical inerrancy) as ones no rational person could subscribe to, whereas in fact what you have done is define "rational" so as to make it congruent with the ways of thinking you and those who agree with you customarily deploy. "Mutual respect" should be renamed "mutual selfcongratulation" since it will not be extended beyond the circle of those who already feel comfortable with one another.8
13. There is a very great risk, that an approach with respect to an ethics and religion course can completely ignore the perspective of those who do not share the same presupposition as those who formulated the curriculum.

14. Stanley Fish, from another approach, endorses modus vivendi rather than the idea of convergence (that law and politics must move us to forced agreement), and these insights provide a welcome substantive recognition that in Canadian society part of our diversity must allow co-existence between those who disagree rather than the subordination of the beliefs of some to the state-backed beliefs of others. However, as the authorities above have shown, the courts must take the analysis further and positively recognize, endorse and support the important public association which religious freedom and related Charter rights require. To do any less than to encourage the right sorts of support is to leave religious communities open to a relentless and effective movement to privatize and diminish the place of religion and religious communities in Canadian society. Though noted in an American context, the insights of jurist and scholar Michael McConnell are apposite in Canada as well:
Today there is a widespread sense not only that the government should be neutral, tolerant, and egalitarian, but so should all of us, and so should our private associations. Open-mindedness, not conviction, is the mark of the good liberal citizen. Indeed, there is something suspect in those who are sure that they are right, since it might imply that someone else is wrong. From a religious point of view, however, open-mindedness is principally valuable in the search for Truth, and not as a permanent resting place...For this and other reasons, the ideal of the liberal citizen thus conflicts with the ideal of belief in religion or in any other comprehensive faith or ideology. To the extent that the state pursues this new vision of the liberal citizen and enforces its vision by force, religious freedom is gravely endangered. Indeed, liberalism in the old sense is itself endangered, for it becomes not a set of political arrangements by which persons of widely differing views can live together in relative harmony, but a narrow and sectarian program enforcing its dogmas by force.9
15. Another approach to pluralism has recognized that there are two key pluralist principles that should govern human diversity. The first principal is that “the laws of the land should acknowledge and do justice to this societal diversity by upholding an open, non-totalitarian, and pluralist social order.” The second pluralist principle “requires that the laws of the land do justice to these faiths and philosophies by means of their equitable and non-discriminatory treatment in public as well as in private spheres of life.”10 Echoing the concerns of Stanley Fish, James Skillin has argued that:
what underlies the religious/secular division of life is a comprehensive view of reality, with roots in the Enlightenment, that designates traditional religion as private and modern politics as secular. It is this comprehensive view of life, therefore, that ought to be compared with comprehensive Christianity or comprehensive Judaism […] The only way to treat all position fairly, then, is by protecting the full freedom of all to express themselves, to exercise their convictions, in public as well as in private life – in other words, in all spheres of life.11
The manner in which these different view points can be treated appropriately in the public sphere is through the principles of accommodation that operate, in the public school setting, through the availability of exemption, alternative delivery or opt- out provisions.

16. Throughout the factum of the Attorney General of Quebec nothing is said about exemptions, alternate delivery or opt-out provisions except to denigrate them as potentially damaging (and no evidence is given for this beyond mere assertions). There is no reference made anywhere to the possibility of alternative delivery methods – for example, suggesting (as we see in the legislation of other provinces such as British Columbia) that there may be other ways of teaching to valid provincial goals. It is argued, in effect, (and in breach of Chamberlain) that parents are free to conduct their religious beliefs privately but when in the public school these beliefs must take a back seat to mandated school curriculum.12

Section 1 [of the Charter] Argument 

17. In order to satisfy the minimal impairment aspects of the Oakes test, it is necessary for the Province to show more then simply a cursory examination of alternatives or untested dismissal of accommodation as “unworkable” or “impractical.” The Province should be required to adduce evidence, rather than merely raise “hypothetical horribles” which assume, because they do not address the point, that asking parents to teach a basic understanding of other religions (for example) would be impractical or constitute “undue hardship” for the Province within the meaning of the duty of accommodation. In the case at bar, an effective way of giving weight to the parental right, the best interest of the child, and the state interest in an educated citizenry can be met in more nuanced ways. The Province of Quebec simply asserts it does not demonstrably justify, an overriding state interest, vaguely connected to a common-good that the parents have not suggested they do not support and accords no weight what so ever to parental rights or concerns.13 This cannot be an acceptable approach to meeting the burden once a right has been breached and our law demands more from all state actors than that. As noted by LaForest, J. in Jones v. The Queen14:
[i]n determining whether pupils are under "efficient instruction", it would be necessary to delicately and sensitively weigh the competing interests so as to respect, as much as possible, the religious convictions of the appellant as guaranteed by the Charter .Those who administer the province's educational requirements may not do so in a manner that unreasonably infringes on the right of parents to teach their children in accordance with their religious convictions. The interference must be demonstrably justified. (Emphasis added)
18. As noted by the Ontario Court of Appeal in Re Corporation of the Canadian Civil Liberties Association (“Elgin County”) [1990] 65 D.L.R (4th)1 at 40 – 41:
Regardless of how beneficial an objective is ascribed to the regulation, such as, for example, the inculcation of proper moral standards in elementary schoolchildren, the measures adopted — the indoctrination of children in the Christian religion — are not rationally connected to that objective. In addition, they fail to impair the appellants' freedoms under s. 2(a ) as little as possible. We agree with the conclusions of the Report of the Mackay Committee[…]:
...there are ways of encouraging the development of young people in public school of high standards of character, ethical ideals, and an understanding of moral values, without trespassing on the personal religious beliefs which they have learned at home or in their separate places of worship. [Emphasis added] 
19. Examples can be drawn from in other Provincial independent educational regimes, and from within Quebec in a recent legal decision that is close in principle to the one at bar, which illuminate the alternative approaches, or “equivalent courses” that better achieve the Charter entrenched need for accommodation and minimal impairment.15

Whether the provision of Exemption is coercive or necessary? The case of Zylberberg.

20. On the authority of Zylberberg16 it would seem to be open to the Appellant’s (and this Honourable Court) to find that, if the ERC is in purpose or effect coercive or indoctrinational event the provision of an exemption provision would not save the program. The facts of this case are that the Appellants are not challenging the exemption provision per se. Whether Exemption provisions provide a satisfactory response must be analyzed in the specific context of the case including such factors as whether the setting is confessional or non-confessional. The willingness to stay in the public system and to apply for exemption from one part of the curriculum is a better result for the Province than the alternatives which failing to respect parental wishes might well lead to -- the abandonment of the public school system all together. The means chosen by the Province, resolutely failing to address the Section 2 rights of the parents, does not serve the ends that it has articulated - - furthering the common good. Respect for religious diversity is an aspect of the common-good the Province purports to respect not its enemy. Only by addressing, analyzing and practically supporting meaningful diversity can the Province of Quebec claim to respect the common good and the principles of a free and democratic society.


21. The Canadian Council of Christian Charities respectfully claims no costs on this appeal and suggests none should be awarded to interveners.


22. The Canadian Council of Christian Charities submits that the Appeal be allowed for the reasons set out above.


April 29, 2011


1 Irwin Toy v. Quebec (1989) 1 S.C.R. 927 [Book of Authorities (“BA”), Tab 2] and Multani v. Commission scolaire Marguerite-Bougeoys [2006] SCC 6; [2006] 1 S.C.R. 256.

2 Schneiderman, David, “Associational Rights, Religion and the Charter” in Richard Moon, ed. Law and Religious Pluralism in Canada (Vancouver: UBC Press, 2008) p. 65 – 80 at 80 [BA Tab 12].

3 R. v. S. (R.D.), [1997] 3 S.C.R. 484, para. 95 [BA Tab 7].

4 R. v. Gruenke [1991] 3 S.C.R. 263 at p. 45 of tabbed version citing Professor Cole. [BA Tab 6].

5 Ibid. 4.

6 Christian Education South Africa v. Minister of Education 2000 (4) SA 757 (CC), paragraph 36 [BA Tab 1]; referred to by the Supreme Court of Canada in Bruker v. Marcovitz [2007] 3 S.C.R. 607.

7 Minister of Home Affairs and Another v. Fourie et al. (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) [BA Tab 5]. See also, David Schneiderman, “Associational Rights, Religion and the Charter” in Richard Moon, ed. Law and Religious Pluralism in Canada (Vancouver: UBC Press, 2008) 65–86 [BA Tab 12] and Janet Epp Buckingham, “The Fundamentals of Religious Freedom: The Case for Recognizing Collective Aspects of Religion.” (2007), 36 S.C.L.R. (2d) 19 – 31[BA Tab 9].

8 Fish, Stanley, “Mission Impossible: Settling the Just Bounds between Church and State” (1997) Colum. L. Rev. 2255 at 2291 [BA Tab 10].

9 Michael W. McConnell, "Why is Religious Liberty the "First Freedom"?' (2000) 21 Cardozo Law Review 1243 at 1259 [BA Tab 11].

10 Skillen, James W., “The Theoretical Roots of Equal Treatment” in S. Monsma and J. Christopher Soper eds., Equal Treatment of Religion in a Pluralistic Society (Grand Rapids: Eerdmans, 1998) 55 at 56 [BA Tab 13].

11 Ibid at 73.

12 Factum of the Respondent, Attorney General of Quebec at paragraphs 81 and 82.

13 Factum of the Respondent Attorney General of Quebec at paragraph 141; R. v. Oakes [1986] 1 S.C.R. 103 (SCC).

14 Jones v. The Queen [1986] 31 D.L.R. (4th) 569 at 593 [BA Tab 3].

15 Newfoundland Schools Act, 1997, S.N.L. 1997, c. S-12.2 s.44 [BA Tab 16]; Education Act, R.S.O 1990 c. E.2 ss. 21 and 51 [BA Tab 14]; British Columbia “Educational Standards Order”, made pursuant to the Independent School Act, R.S.B.C. 1996, c. 216 ss. 4(4)(5), 6 and 7 [BA Tab 15]; see also Loyola High School v. Courchesne, 2010 QCCS 2631, currently on appeal to the Quebec Court of Appeal [BA Tab 4].

16 Zylberbeg v. Sudbury Board of Education (Director), 52 D.L.R. 4th 577 [BA Tab 8].

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