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  • January 2020 : Servatius v. Alberni School District

The city of Port Alberni, British Columbia is located on traditional Nuu-chah-nulth territory. During the 2015-2016 school year, a Nuu-chah-nulth Elder visited an elementary school in the Alberni School District to demonstrate a smudging ceremony in three different classrooms. The Elder first explained the smudging ceremony to students, which included an abalone shell, sage and an eagle feather, as well as its associated beliefs. Students also later watched a hoop dance at an assembly during which a prayer was said by the dancer. Candice Servatius, an evangelical Christian with a daughter and son at the school, expressed concern that her children were forced to participate in these Indigenous practices. She argued that the smudging ceremony and prayer infringed upon their right to religious freedom under Section 2(a) the Canadian Charter of Rights and Freedoms.

In its decision for Servatius v. Alberni School District (2020), the British Columbia Supreme Court concluded that students were not compelled to participate in the demonstrations, nor did these interfere with the school’s duty of religious neutrality. The Court stated : “When arrangements are made for Indigenous events in its schools, even events with elements of spirituality, the School District is not professing or favouring Indigenous beliefs. Educators are holding these events to teach about Indigenous culture, and to introduce students to Indigenous perspectives and worldviews” (Alberni at para. 85). Accordingly, the students’ freedom of religion, which includes freedom from religion, was not infringed upon by the smudging ceremony nor the hoop dancer’s prayer. Students were not participating in the practices, but witnessing them as part of a curriculum that integrates local Indigenous culture and history.

In its decision the Court recognized the colonial context of the events that led to this case. It referenced the Truth and Reconciliation Commission’s (TRC) findings about church-led residential schools, which Indigenous children were forced to attend as part of a coherent government policy of assimilation. The Court also referred to the Nuu-chah-nulth Tribal Council, a party to the case that “advocates for cultural inclusiveness in schools as a crucial part of changing the relationship between Indigenous and non-Indigenous Canadians on the basis that ‘people cannot honour difference if they cannot understand it’” (Alberni at para. 25). Overall, the Alberni case reflects the ongoing impacts of colonialism in Canada and efforts to advance reconciliation between Indigenous and non-Indigenous peoples. As the TRC notes in its final report, education plays a key role in this process.

Full citation : Servatius v. Alberni School District No. 70, 2020 BCSC 15.

Lauren Strumos
  • June 2019 : Québec, between "laïcité" and religious neutrality

A Bill of law on laïcité was adopted in Quebec, in June 2019. The following summarises the meaning and origin of the debate. As in many parts of the world, Quebec has been agitated for nearly twenty years by public debates about new waves of migration and certain religious minorities. The concept of "open laïcité" made its discrete appearance, in 1999, in a report on religion at school commissioned by the Government of Quebec. Laïcité will only begin to be discussed publicly a few years later, in 2007-2008, around the virulent debate about reasonable accommodations.

Open laïcité in school

In 1999, a study committee on religion at school, chaired by journalist and professor Jean-Pierre Proulx, published a report entitled Religion in Secular Schools. A New Perspective for Québec. The Proulx Report proposes the concept of open laïcité as the normative framework of its proposal for a cultural teaching of religion, but it develops very little of its content. This is a proposal to deconfessionalize the public system of education (primary and secondary levels), while maintaining the teaching of a subject dedicated to religious cultures. It is for this reason that laïcité is said to be "open", in distinction from the French system, which does not include any specific subject of teaching on religion. Until then, primary and secondary schools offered the option of Catholic, Protestant or moral education, in addition to pastoral care. Following the report. The publication of the report, a government commission leads to the deconfessionalisation of the school system. Pastoral care gives way to spiritual care and community involvement animation, and the options for moral and religious education are replaced by a single compulsory program called Ethics and Religious Culture (see entry EUREL), in both public and private schools.

Open laïcité and reasonable accommodations

The debate on laïcité deepens when the legal notion of reasonable accommodation to religious requests, applied in Canada since a Supreme Court judgement in 1985, gives rise to media controversy. The outcry is such that it spawned another commission in 2007, known as its co-chairs Gérard Bouchard and Charles Taylor (Building the Future 2008). Including around 300 pages and dozens of recommendations, the report suggests a project of open laïcité, defining it generally, as a search for balance between rights. In the few pages defining it, Bouchard and Taylor distinguish it from the regimes imposing “fairly strict limits on freedom of religious expression,” citing France and its policies prohibiting the wearing of religious symbols at school (p. 20). Roughly, the report suggests increasing the neutrality of the state by limiting religious expressions and symbols in the political arena, preserving cultural religious heritage elements, and honouring jurisprudence on reasonable accommodation, with respect for certain ethical and cultural limits. In addition, they recommend the prohibition of the wearing of religious symbols to a limited number of people exercising a particular power of coercion.

Subsequently, there are no less than four controversial bills, following on from this 2008 report. The first two failed because of a lack of consensus. The first, proposed by a federalist liberal government in 2011, is Bill 94 : An Act to establish guidelines governing accommodation requests within the Administration and certain institutions. A minority Parti Québécois government (a separatist party) proposes the second, in 2013, entitled Bill n° 60 : Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests. The following two bills will be adopted.

With the Liberal government taking over, it introduces again a bill on reasonable accommodation. In October 2017, the government passes Bill n° 62 : An Act to foster adherence to State religious neutrality and, in particular, to provide a framework for requests for accommodations on religious grounds in certain bodies. Groups challenging section 10, forcing individuals to give or receive services with “their faces uncovered”, were successful, obtaining the suspension of its application by the Superior Court of Quebec. It is difficult to impose such restrictions in Canada under the charters of rights and freedoms.

Thanks to a change of government, the party Coalition Avenir Québec (the CAQ, party presenting itself as pragmatic and federalist, but very nationalist, whose leader was a PQ minister), elected for the first time, files, on March 28, 2019, Bill n° 21 : An Act respecting the laicity of the State. In order to exceptionally escape the charters of rights and recourse to the courts, this project provides for the use of the “notwithstanding or derogatory clause” (section 33). This use is provided for in the Canadian Constitution : “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.” While all four bills address a number of issues related to reasonable accommodations, debates focus solely on the wearing of religious symbols. The liberal party, both in 2011 and in 2017, limits itself to limiting the “face covered”. The Parti Québécois and the CAQ impose a ban on a large number of public servants. The Bill 21 presented by the CAQ goes slightly less far than the PQ on this point, but its appendix II listing the public functions concerned is very developed, including primary and secondary teachers, the most controversial aspect. The CAQ argues that all those functions exercise a certain power of ‘coercion’, referring to the Bouchard-Taylor report (in fact extending this notion to several more functions than the report itself). The use of the derogation clause suggests that no legal action will be able to contest the applications. At the time of writing this text, however, the project is already challenged at court. A long judicial battle is on the horizon, and the adversaries will certainly go to the UN if necessary. If the CAQ dreams of reproducing the French republican model, on this question, the North American context and its rather flexible uses of freedom of conscience and religion pose obstacles to a prohibition of the wearing of religious symbols, which would be without deep controversy.

To conclude, we could make two points. First, parties characterised by their more assertive nationalism include the concept of laïcité in their bills. The Liberal Party uses the concept of “religious neutrality”, more in tune with the Canadian legislative context. Secondly, if the bills deal with several aspects of the management of reasonable accommodation requested by individuals for religious reasons, the public debates focus mainly on the symbolic and sartorial aspects, as was the case in France, notably in the context of the Stasi Commission.

Sources :
- Lefebvre, S. et al. (ed.) 2018 Dix ans plus tard : La commission Bouchard-Taylor, succès ou échec ?, Montréal : Québec Amérique, pp. 75-86.
- Lefebvre, S. et al. (2017) Public Commissions on Cultural and Religious Diversity : Analysis, Reception and Challenges, UK : Routledge.
- Proulx J.-P., Study committee on religion at school, Religion in Secular Schools. A New Perspective for Québec, Québec : Minister of Education, Government of Québec, 1999.
- Several public documents can be downloaded on the directory PLURI.

Solange Lefebvre
  • December 2017 : Religion and sexuality : recent controversies in Canada

Although opposition to sexual equality rights (such as abortion, same-sex marriage, sex workers’ rights) is not confined to individuals or groups who identify as religious, frequently the loudest voices heard in public debates and legal controversies are those claiming opposition based on religious freedom rights.

The organization of opposition to constitutional and legislative change often is represented by specific religious groups, Catholic, Evangelical Christian, Muslim and Orthodox Jews. Particularly in relation to legal changes, such as the redefinition of marriage from heterosexual (one man and one woman) to include same-sex couples (two persons), groups such as the Evangelical Fellowship of Canada, Interfaith Coalition on Marriage and Family are frequently named interveners in the legal disputes, although other groups (i.e. REAL Woman of Canada) are also vocal about their positions, whether on their websites or in media interviews.

Members of religious organizations do not always conform to the doctrine of their religious tradition ; frequently lived religious practice and official teaching diverge from one another, often on issues such as abortion or same-sex marriage. Importantly, the organization and dominance of particular religious voices in opposition to marriage equality for same-sex couples, access to abortion or the rights of sex workers’ misses two very important issues.

First, many religious individuals and groups have been actively fighting to support the rights of sexual minorities, access to abortion services for women and the rights of sex workers. For example, in the Ontario civil union case, the Metropolitan Community Church of Toronto specifically argued that the inability to perform same-sex marriages violated their religious freedom rights ; see Halpern v Canada, [2003] OJ No 2268 [Ontario Court of Appeal].

Further, in an open letter submitted to the justice committee in response to Bill C-36, the legislation developed by the government after the Bedford case, dozens of Anglican clergy argued that the proposed law is immoral and would pose risks to sex workers’ safety (see “Anglican Clergy call prostitution bill immoral,” Maclean’s, Rachel Browne, 2014).

Oppositional attitudes to these particular debates are seen outside religious groups and attitudes, and in fact restrictive, oppositional viewpoints are witnessed in daily expressions of discrimination as experienced by women who seek abortions (or who argue that access to abortion ought to be more widely available), sexual minorities and same-sex couples, and sex workers (see Catherine G Taylor & Tracey Peter, et al, Every Class in Every School : Final Report on the First National Climate Survey on Homophobia, Biphobia, and Transphobia in Canadian Schools. Toronto, Egale Canada Human Rights Trust, 2011).

Consequentially, perceptions about religious identity are often that religion ‘inherently’ opposes sexually diverse identities, access to abortion or sex workers rights and further ties religiosity to conservative (negatively connoted) identities. This public perception frames religion and sexuality as opponents, whereby to be religious is to be anti-X (LGBTQI, feminist) and to be LGBTQI, feminist, sex worker or seeking an abortion is to be anti-religious.

See a list of relevant decisions.

Heather Shipley

D 7 décembre 2017    AHeather Shipley ALauren Strumos ASolange Lefebvre

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