Supreme Court

Constitutional Law

Exposing children to variety of religious facts does not constitute infringement of rights

In 2008, Ethics and Religious Culture (“ERC”) Program replaced Catholic and Protestant programs of religious and moral instruction in Quebec schools. Appellants requested that school board exempt their children from ERC course. Requests denied by director of educational resources and school board’s council of commissioners upheld decision. Appellants applied to Superior Court for declaration that ERC Program infringed right to freedom of conscience and religion and seeking judicial review of decisions denying exemption requests. They claimed decisions made at dictate of Ministere del’Education. Superior Court Judge found that ERC Progrm did not infringe right to freedom of conscience and religion and that school board’s decision to deny exemptions valid. He held that school board’s decision not made under Ministere’s influence and dismissed motion for judicial review. Appellants appealed dismissal of motion for declaratory judgment as of right and applied for leave to appeal decision to dismiss motion for judicial review. Attorney General of Quebec and school board brought successful motions to dismiss appeal as of right and successfully contested application for leave to appeal. Court of Appeal found no error in analysis of Superior Court Judge and concluded appeal moot since appellants’ children no longer obligated to take ECR course. Appeal to Supreme Court of Canada dismissed. Question is whether religious practice or belief exists that has been infringed. Subjective part of analysis limited to establishing sincere belief that has nexus with religion, including belief in obligation to conform to religious practice. Proving infringement requires objective analysis of rules, events or acts that interfere with exercise of freedom. Appellants had to show that, from objective standpoint, ERC Program interfered with ability to pass faith on to their children; not sufficient to say they had religious reasons for objecting to children’s participation. In adopting Program, Ministere explained need to ensure religious diversity taken into account in schools. ERC Program includes instruction in ethics and instruction in religious culture. Program introduces range of different religions and gets children to talk about self-recognition and common good. Course does not interfere with appellants’ freedom of conscience and religion. Exposure to some cognitive dissonance arguably necessary for children to learn tolerance. Parents remain free to pass on personal beliefs to children; exposure to different realities fact of life. Exposing children to variety of religious facts in itself does not constitute infringement of Canadian Charter of Rights and Freedoms or Charter of human rights and freedoms (Que.). Importance of question justified hearing appeal even though appellants’ children no longer subject to obligation to take ERC course.

L. (S.) v. Commission scolaire des Chenes

(Feb. 17, 2012, S.C.C., McLachlin C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ., File No. 33678) Decision at 189 A.C.W.S. (3d) 474 was affirmed. 210 A.C.W.S. (3d) 363 (40 pp.).

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