11 CONSTITUTIONAL LAW 36 FREEDOM OF RELIGION: GOVERNMENT AND RELIGION IN PUBLIC SCHOOLS Shigenori Matsui

22 INTRODUCTION Religion in public schools The absence of the establishment clause

3 S. 93 of the Constitution Act, In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions: 1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union…

(3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen's Subjects in relation to Education.

S. 29 of the Charter 29. Nothing in this Charter abrogates or derogates from any rights or privileges guaranteed by or under the Constitution of Canada in respect of denominational, separate or dissentient schools.

6 I School Prayer and Bible Reading Zylberberg v. Sundbury Board of Education (1988)(On. CA)

7 “On its face, s. 28(1) infringes the freedom of conscience and religion guaranteed by s. 2(a) of the Charter. This was conceded by the respondents. Section 28(1) is antithetical to the Charter objective of promoting freedom of conscience and religion. The recitation of the Lord's Prayer, which is a Christian prayer, and the reading of Scriptures from the Christian Bible impose Christian observances upon non-Christian pupils and religious observances on non-believers.”

8 “While the majoritarian view may be that s. 28 confers freedom of choice on the minority, the reality is that it imposes on religious minorities a compulsion to conform to the religious practices of the majority. The evidence in this case supports this view. … The peer pressure and the class-room norms to which children are acutely sensitive, in our opinion, are real and pervasive and operate to compel members of religious minorities to conform with majority religious practices…”

9 “After a careful consideration of the Act, the Regulations, and other materials placed before us, we have concluded that the purpose of s. 28(1) is religious and that the exercises mandated by the Regulation were intended to be religious exercises. This is the only conclusion which can be drawn from the wording of the Act and the Regulations.”

10 It is not necessary, in this case, to conduct a ritualistic step-by-step inquiry under each of the four elements of the Oakes test. If the respondent fails under one element of the test, the Charter infringement cannot be justified. We propose, therefore, to consider the most vulnerable element of the test from the respondent's standpoint which is whether s. 28(1) impairs the appellants' freedoms under s. 2(a) "as little as possible".

11 “The experience of the Toronto Board of Education convincingly demonstrates that there are less intrusive ways of imparting educational and moral values than those provided in s. 28. The Toronto experience, which was fully described above and need not be repeated here, shows that it is not necessary to give primacy to the Christian religion in school opening exercises and that they can be more appropriately founded upon the multicultural traditions of our society.”

12 Is it an infringement of freedom of religion to start the school with prayer and reading of Bible?

13 What about the religious education by clergymen in the public school? Canadian Civil Liberties Association v. Ontario (1990)(On CA)

14 What about the practice of opening the town council meeting by Lord’s Prayer? Freitag v. enetanguishene (1999)(On CA)

15 What about the practice of county council meetings with non-sectarian prayer referring to the God? Allen v. Renfrew (2004)(On. SCJ)

16 II Exclusion of Educational Materials Based on a Religious Concern Chamberlain v. Surrey School District No. 36 [2002]

17 “We have seen that the Board was required to exercise its power to approve or reject supplementary classroom resources in a manner that accorded with: (1) the secular mandate of the Act; (2) the regulation which the Board had put in place pursuant to Ministerial Order; and (3) the factors required to be considered by the Act, including the desired learning outcome for K-1 students found in the curriculum. … its decision here must be set aside as unreasonable because the process through which it was made took the Board outside its mandate under the School Act.”

18 “The Board's first error was to violate the principles of secularism and tolerance in s. 76 of the School Act. Instead of proceeding on the basis of respect for all types of families, the Superintendent and the Board proceeded on an exclusionary philosophy. They acted on the concern of certain parents about the morality of same-sex relationships, without considering the interest of same-sex parented families and the children who belong to them in receiving equal recognition and respect in the school system. The Board was not permitted to reject the books simply because certain parents found the relationships depicted in them controversial or objectionable.”

19 Was the exclusion an infringement of the freedom of religion of children and parents? If these books were used in the classroom, will the use an infringement of freedom of religion of children and parents who hold the religious view against the same-sex marriage?

20 Is the teaching of theory of evolution an infringement of freedom of religion of children and parents who hold a different religious view? Is the exclusion of theory of evolution from the curriculum justified?

21 III Compulsory Education and Private Religious Education Compulsory education and the requirement of approval R. v. Jones [1986]

22 “The interest of the province in the education of the young is thus compelling. It should require no further demonstration that it may, in advancing this interest, place reasonable limits on the freedom of those who, like the appellant, believe that they should themselves attend to the education of their children and to do so in conformity with their religious convictions. Section 1 of the Charter allows for this. ”

23 “…, the province, and indeed the nation, has a compelling interest in the "efficient instruction" of the young. A requirement that a person who gives instruction at home or elsewhere have that instruction certified as being efficient is, in my view, demonstrably justified in a free and democratic society. So too, I would think, is a subsidiary requirement that those who wish to give such instruction make application to the appropriate authorities for certification that such instruction complies with provincial standards of efficiency. Such a requirement constitutes a minimal, or as the trial judge put it, peripheral intrusion on religion.”

24 What kind of requirement can be imposed to receive an approval?

25 IV Government Support for Religious Schools Reference re Bill 30, an Act to Amend the Education Act [1987]

26 “…It cannot be concluded, therefore, that rights or privileges conferred by post- Confederation legislation under s. 93(3) are "guaranteed" within the meaning of s. 29 in the same way as rights or privileges under s. 93(1). This does not mean, however, that such rights or privileges are vulnerable to attack under ss. 2(a) and 15 of the Charter. ”

27 “The s. 93(3) rights and privileges are not guaranteed in the sense that the s. 93(1) rights and privileges are guaranteed, i.e. in the sense that the legislature which gave them cannot later pass laws which prejudicially affect them. But they are insulated from Charter attack as legislation enacted pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise. Their protection from Charter review lies not in the guaranteed nature of the rights and privileges conferred by the legislation but in the guaranteed nature of the province's plenary power to enact that legislation. ”

28 “These educational rights, granted specifically to the Protestants in Quebec and the Roman Catholics in Ontario, make it impossible to treat all Canadians equally. The country was founded upon the recognition of special or unequal educational rights for specific religious groups in Ontario and Quebec. The incorporation of the Charter into the Constitution Act, 1982, does not change the original Confederation bargain… I would conclude, therefore, that even if Bill 30 is supportable only under the province's plenary power and s. 93(3) it is insulated from Charter review. ”

29 Adler v. Ontario [1996]

30 “…it is my opinion that the s. 2(a) claim fails because any claim to public support for religious education must be grounded in s. 93(1) which is a "comprehensive code" of denominational school rights. With regard to the appellants' equality argument, this claim fails because the funding of Roman Catholic separate schools and public schools is within the contemplation of the terms of s. 93 and is, therefore, immune from Charter scrutiny.”

31 “In my view, any analysis of denominational school rights must take as its starting point the guarantees contained in s. 93(1). If the rights claimed are not found in this subsection, I fail to see how other sections of the Constitution, in particular s. 2(a) of the Charter, can be used to enlarge upon s. 93's constitutionally blessed scheme for public funding of denominational schools.”

32 “…s. 93 is a comprehensive code with respect to denominational school rights. As a result, s. 2(a) of the Charter cannot be used to enlarge this comprehensive code. Given that the appellants cannot bring themselves within the terms of s. 93's guarantees, they have no claim to public funding for their schools.”

33 “The province remains free to exercise its plenary power with regard to education in whatever way it sees fit, subject to the restrictions relating to separate schools imposed by s. 93(1). Section 93 grants to the province of Ontario the power to legislate with regard to public schools and separate schools. However, nothing in these reasons should be taken to mean that the province's legislative power is limited to these two school systems. In other words, the province could, if it so chose, pass legislation extending funding to denominational schools other than Roman Catholic schools without infringing the rights guaranteed to Roman Catholic separate schools under s. 93(1). ”

34 “However, an ability to pass such legislation does not amount to an obligation to do so. To emphasize, s. 93 defines the extent of the obligations of the province to set up and fund denominational schools when public schools are established. In this respect, it is a comprehensive code thereby excluding a different or broader obligation regarding denominational schools, while not restricting the plenary power of the province to establish and fund such other schools as it may decide. For these reasons, I find that the funding of public schools coupled with the non-funding of private religious schools is immune from Charter attack and therefore does not violate s. 15(1) of the Charter.”

35 Does the fact that the Constitution Act, 1867, enshrined the rights and privileges of the Catholic separate schools justify the refusal to fund other religious schools?

36 Is the government funding of private religious schools unconstitutional? Is there any limitation on government funding?