The Positive Role for Government in Freedom of Religion: SL v Commission scolaire des ChênesS.L. v. Commission scolaire des Chênes, 2012 SCC 7,  1 SCR 235
In May, my colleague Ajit Singh wrote an introductory piece setting the scene for the Supreme Court of Canada’s (SCC) decision in SL, et al v Commission scolaire des Chênes, et al,  1 SCR 235 [SL]. Last week, the SCC released its decision in SL, unanimously dismissing the appeal. SL both clarifies our understanding of what is required to establish a violation of the Charter’s s. 2(a) right to freedom of conscience and religion, and provides an interesting philosophical look at the appropriate role of religion in modern Canadian society, clashing to some extent with the views expressed by Ajit.
In 2008, Quebec replaced programs of Catholic and Protestant religious and moral instruction with the “Ethics and Religious Culture Program” [ERC]. L and J requested that the school board exempt their children from the ERC, fearing that it would “seriously harm” them. The request was denied. L and J appealed to the school board’s council of commissioners, which upheld the denial. They then brought an action in the Quebec Superior Court seeking judicial review of the decision, and asserting that the ERC violated their and their children’s right to freedom of conscience and religion. The Superior Court dismissed both motions and the Court of Appeal refused to hear their appeal as of right, concurrently dismissingtheir motion for leave to appeal.
The SCC unanimously dismissed the appeal. A majority found that L and J had failed to prove any violation of s. 2(a). In a concurring judgment, Justices Lebel and Fish dismissed the appeal, but restricted their decision to an insufficiency of evidence.
Led by Justice Deschamps, the majority held that the appellants had failed to show that the ERC had violated their freedom of religion or conscience. The appellants argued that as a function of their Catholic faith, they had an obligation to pass on the precepts of the Catholic religion to their children, and that the ERC interfered with this practice by confusing their children and exposing them to a form a relativism that portrayed different series of beliefs on an equal footing.
The threshold to establish a violation of s. 2(a) of the Charter was set rather low in the leading decision, Syndicat Northcrest v Amselem,  2 SCR 551 [Amselem]. Pursuant to Amselem, an individual need only show that they genuinely believe a practice has a nexus with religion for it to be protected by the Charter’s guarantee of freedom of conscience and religion; it need not be generally shared by other members of a religion, or backed by any religious authority. Accordingly, it was not contested that L and J’s belief that they were obliged to pass along the precepts of their Catholic faith to their children attracted s.2(a) protection.
Nonetheless, the SCC found that there had been no Charter violation. While L and J genuinely believed in their obligation to pass along the precepts of their faith, the Court found that they had not proven that the ERC had obstructed this practice. As a technical matter, L and J’s children had never actually followed the course, so L and J could not show that their beliefs had been intruded upon. More to the point, however, Justice Deschamps adjudged,
[T]he early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society. The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligations with regard to public education. Although such exposure can be a source of friction, it does not in itself constitute an infringement of s. 2(a) of the Canadian Charter and of s. 3 of the Quebec Charter.
Accordingly, the SCC clarified that although Amselem set a subjective test for deciding what constitutes religious beliefs protected by the Charter, there nonetheless exists an objective test for determining whether those beliefs have been violated. In coming to this conclusion, the SCC articulated that religious plurality is a reality of modern Canadian society, and government programs that reflect this do not transgress protections accorded by the Charter.
In his piece on SL, Ajit Singh laid out a persuasive case for why the ERC should be struck as contrary to s. 2(a), or, at the very least, why L and J were entitled to an exemption. In coming to this conclusion, he advanced three contentions: (i) that the state has no business teaching religion, (ii) that religion is and should remain and intensely private matter, and (iii) that the risk of producing ignorance by not having programs like the ERC could be mitigated by a program focusing on ethics and tolerance without reference to religion.
My Own Stance
As regards the SL decision, I find myself in general agreement with the SCC. In that light, I’ve taken the opportunity to respond to some of Ajit’s positions.
(i) The state has no business teaching religion.
I couldn’t agree more with the thrust of this argument. The ERC, however, doesn’t teach religion, it teaches about religion. In this way, it is comparable to the teaching of social sciences. Conflating the education of young Canadians on the precepts of various religious traditions with indoctrination would be to suggest that a comparative school history class examining the Soviet Union during the Cold War is akin to the state advocating for communism. Surely this isn’t the case.
What’s more, given the Quebecois context in which SL took place, there exist compelling constitutional, historical, and practical rationales for the inclusion of religion in public education. One need look no further than s. 93 of the Constitution Act, 1867 to recognize the religious realities that underlie our Constitutional framework and that must inform its interpretation. Likewise, the influence of the Catholic church on education in the province of Quebec up to and through the Duplessis years further illustrate why simply excising instruction that touches on religion would not result in the neutrality those who believe that “the state has no business teaching religion” presumably desire.
(ii) Religion is and should remain and intensely private matter.
Political philosophers have written entire books arguing for or against such an assertion – I couldn’t possibly dream of ending the debate here and now. Nonetheless, it is plain to see that for most of Quebec’s history, this has not been the case. Even today, it would be next to impossible to teach a course on Quebec history without touching on the (both overtly and implicitly Catholic) ideas of historians such as Fr Lionel Groulx, the godfather of French-Canadian historians. As such, I’m not sure that it would even be possible to truly remove religion from public education in Quebec if we tried. What’s more, even if we could, given Quebec’s history and demographics, would this not have the same effect as an overtly religious policy?
More philosophically, one might agree that religious conviction is an intensely private matter, but as the SCC recognized, there is no contradiction between that position and being exposed to the tenets of different faiths in a survey class like the ERC. Moreover, there is an inherent interplay between a person’s “purely” private exercise of religion and the public sphere. Was Gurbaj Singh’s right to wear a kirpan in a Quebec school any less informing or exposing of different religious traditions than a class lecture on Sikhism?
Finally, from a legal perspective, we are asked to consider what is truly meant by the Charter’s guarantee to freedom ofreligion. Certainly, I would concede that the state openly advocating for one religious position over another would violate this protection. Likewise, it would be naive to deny that today, the idea that freedom of religion requires the creation of absolute walls between public institutions and anything having a nexus to religion is quite prominent. Is a complete ban on public teaching about religions consistent with the protection, though? For my part, the answer is no. Nonetheless, for anyone truly interested in the various and competing considerations, I would refer you to the SCC’s discussion of public obligations to religious neutrality starting at paragraph 30 of SL.
(iii) The risk of producing ignorance would be mitigated by a program focusing primarily on ethics and tolerance without religion.
While there are comparatively few cases on the matter, how would this be any more (or less) infringing of an individual’s freedom of conscience, which is equally protected under s. 2(a)? Likewise, is it meaningful to divorce an ethics class entirely from religion when there is so much interplay historically and in modern society between our values and our religious traditions? To the contrary, I would argue that a greater examination of our ethics, our religious beliefs, our history and our social institutions, as well as the interplay between all four is required to attain the type of informed society that can balance tolerance with the freedom of religion. Simply excluding overtly religious considerations may create an arbitrary appearance of neutrality, but it misses the point of such a class, and does children a disservice by shielding them from realities that cannot and ought not be ignored in the real world.
Legally, SL clarifies our understanding of what is required to establish a violation of the Charter’s s. 2(a) right to freedom of conscience and religion. From a more philosophical standpoint, it provides an outlook on the appropriate role of religion in modern Canadian society that recognizes the need for greater religious understanding and the positive role government can play in that process. In so doing, it’s my belief that the SCC got it just right!