Ontario Superior Court of Justice
2016 ONSC 7313
23 November 2016
Canadian Charter of Rights and Freedoms, Section 2 (being Part 1 of the Constitution Act 1982)
Ontario Human Rights Code, Section 46.1
Education Act, Sections 21(5), 30(1) and 169.1(1)
Accepting School Act
A father alleged that his children’s school (the Hamilton-Wentworth District School Board) had failed to accommodate the Greek Orthodox religious beliefs of the applicant and his children. The school board did not allow the children to be withdrawn from lessons in order for them not be exposed to “false teachings”. The complaint cited “false teachings” including values-neutral education (including moral relativism), witchcraft and other occultic principles/practices, sex education and portrayals of homosexuality as healthy or natural. One of the tenets of the applicant’s religious beliefs is that he has an obligation to protect his children from “false teachings”, and that it would be sinful for him to fail to provide that protection. The school board took the position that it was not possible or appropriate to accommodate the applicant, because it was not possible to know in advance what does or does not amount to a “false teaching”, and that permitting the applicant’s children to be withdrawn from lessons where certain topics/issues are taught or discussed would be contrary to the values of inclusion and student well-being and could lead to feelings of exclusion or marginalisation by students, including the applicant’s children.
Issue and resolution:
Accommodation of religious beliefs in school. The Court held that the school board’s decision not to accommodate the applicant’s request that children be withdrawn from lessons constituting “false teachings” or in which “false teachings” were discussed did constitute a limit to the applicant’s protections under section 2(a) of the Canadian Charter of Rights and Freedoms, but the Court upheld the school board’s decision to deny the applicant’s accommodation request as a reasonable decision.
The Court found that that the father’s religious beliefs were sincerely held and that these were at odds with the school board’s Equity Policy, particularly as to matters of marriage and human sexuality. The Court summarised the basic principle against which the school board’s actions must be measured as being “the discretionary decision-maker is required to proportionately balance the Charter protections to ensure that they are limited no more than is necessary given the applicable statutory objectives that he or she is obliged to pursue”.
The Court held that the school board had appropriately balanced the applicant’s Charter rights with its statutory objectives and the relevant Charter values and protections. The Court noted that there are difficulties inherent in achieving such balance, noting that “In the particular facts of this case, it is difficult to find other accommodation for the applicant that mitigates his concern. The choice is clear: include or isolate. The Board chose the former”. There were a number of different Charter values raised by the case and it was not possible to say that the applicant’s accommodation request (which was calculated to protect his and his children’s freedom of religion) should take precedence over the other Charter values raised by the case, including the school board’s duty of neutrality, equality, and the multicultural nature of Canadian society.
The Court stated that: “The list of objectionable subject matter provided by the applicant was extensive. It would be extremely difficult for teachers to be sufficiently familiar with the variety of concerns raised by parents for individual students so as to advise in advance of their mention in lessons”. The Court found that “the weight of legislative policy and judicial comment favours inclusion rather than isolation” in the context of a public education system. The Court held that “isolation is antithetical to the competing legislative mandate and Charter values favouring inclusivity, equality and multiculturalism”.
The Court emphasised that the central question in accommodation decisions concerning implicating Charter rights and protections is whether the school board proportionately balanced the relevant Charter protections, including freedom of religion, in order to ensure that any limitations on those protections are constrained no more than is necessary given the applicable statutory objectives. In the public school system, it can be said that the Court was prioritising inclusion and equality over individual religious accommodations.
The Court refused to declare that parents have the final authority over the education of their children. The Court also found that it has no jurisdiction to deal with the applicant’s claim of discrimination under the Human Rights Code.
Link to full judgement:
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