Dictating Selective Tolerance or Silence in the Face of Ignorance: S.L. v. Commission scolaire des Chênes

After hearing pleadings on 18 May, 2011, the Supreme Court is set to render a decision on the sensitive topic of education as it relates to religion, culture, and morals, once again originating from Quebec.

ERC: Teaching Tolerance and Religion Quebec Style
At issue in SL, et al v Commission scolaire des Chênes, et al, [2012] 1 SCR 235 [Commission scolaire des Chênes], is Quebec’s Ethics and Religious Culture program ("ERC"). In September of 2009, the Quebec Superior Court rejected a request for an exemption from the ERC course from a coalition of approximately 2000 parents from Drummondville, Quebec, launched by a couple who cannot be named due to a publication ban, who claim the course compromises their children’s “moral education”. An appeal on the issue was also rejected on 24 February 2010, by in a unanimous decision rendered by Yves-Marie Morissette J.C.A at the Quebec Court of Appeal. This now brings the case before the Supreme Court where the plaintiffs advance that the mandatory nature of the ERC, compounded by not allowing any exemptions from it, infringes their freedom of conscience and religion rights under the s. 2(a) of the Canadian Charter of Rights and Freedoms, and Article 3 of the Quebec Charter of Human Rights and Fundamental Freedoms, CQLR c C-12. To illustrate the case’s highly politicized nature, La Coalition pour la Liberté en Education has been helping to pay the legal costs of the plaintiffs.

What is ERC?
ERC was created by the Jean Charest government in 2008. The program is mandatory for all students and allows no exemptions, and provides moral and religious instruction to students in elementary and high schools, expanded to accommodate increasingly diverse perspectives in an evolving Quebec, while maintaining Quebec’s cultural heritage. ERC’s curriculum is said to include all the “major world religions as well as native spirituality, while reflecting Quebec’s Christian roots and citizenry”.

The goal of the program is said to be to “foster an understanding of several religious traditions whose influence has been felt and is still felt in our society today. In this regard, emphasis will be placed on Québec’s religious heritage”.

ERC replaced the previous moral instruction in schools which, as the CBC writes, was set for “centuries by the province’s Catholic and Protestant school boards”. The previous curriculum, allowed parents to select between three programs: the Catholic Religious and Moral Instruction, Protestant Moral and Religious Education, and more neutral Moral Education program.

We Want An Exemption
Yet not everyone is on board. In Commission scolaire des Chênes, as the National Post reports, the plaintiffs argue in their factum: “Can the state impose, without the possibility of an exemption, a program of study about religion and ethics on parents who view it as infringing on their religious beliefs and their freedom of conscience? Such is the stake in this case.”

During the Supreme Court hearing, some members of the bench challenged the plaintiffs position, including Justice Lebel, who asked “Is there anything wrong with trying to teach open mindedness to students, to make that a behaviour or an attitude?”. The plaintiffs response was that pluralism requires respect for individual views, and the “cookie-cutter” approach taken by ERC, which is imposed in a heavy handed manner, kills such pluralism taking shape.

Some position the sides of this case as “parental religious authority versus mandatory tolerance teaching at the Supreme Court of Canada”. Canadian Broadcasting Corporation’s Lorna Dueck characterizes the case as “Freedom of conscience, freedom of religion and parental authority will all be on trial Wednesday as a Quebec case involving a parent’s right to pass on religious beliefs and moral values gets underway before the Supreme Court of Canada.”

This sensitive issue appears to be drawing increased attention, not only across Canada but across the border. Not only does this case deal with religion and education, but it also impacts broader individual, parenting, accommodation, and cultural rights. While it is easy to stake a position on either side in this particular case, the broader context and the consequences must be considered.

Parents, Religious and Civil Libertarian Groups: Unlikely Allies
Kris Sims writes this case bands “Parents, religious and civil libertarian groups” together against the province and ERC. For the purposes of full disclosure, I (generally) fall into the civil libertarian category.

In that regard, I believe that in a democracy it is imperative individuals retain their fundamental rights of religion and conscience, and to generally be free of state interference in the pursuit of those freedoms. However, as a society, it is also true that reasonable limits must sometimes (though rarely) be placed upon such rights, particularly to protect the vulnerable, especially by evils such as hate speech, the incitement of violence, or in the pursuit of legitimate state interests. In fact, section  1 of the Charter was created in recognition of this very purpose.

Notwithstanding the important role that religion has played in the development of the distinct culture of Quebec, does the state have a role in teaching religion? I believe the answer is no.

This case highlights the problem which arises when the state enters into the realm reserved for individuals. The Charest government opened a Pandora’s box by creating a mandatory education program on religion, even if it was better than the previous curriculum.

While it is important our multicultural society tolerate and respect differing views, how can the state possibly enter into the area of teaching a religious curriculum? No matter how inclusive the approach adopted, a pragmatic consequence is that the state inevitably enters into the politics of inclusion and exclusion: being selective in not only what it represents but how it is presented.

Religion in our society is, and should remain, an intensely personal and private matter. The state definitely has a role in promoting and fostering the tools necessary for respectful co-existence and tolerance. In this case, aspects of the ERC curriculum which teach ethics and/or morality is a noble and worthy cause. However, to exceed these more neutral areas and enter into religion is where it becomes problematic (appreciating that ethics and morality do have relative aspects as well, but less so than religion).

While a danger may exist that such a hands-off position may foster ignorance, this is a necessary risk we face when living in a democracy founded upon individual rights and freedoms. But even this risk would be mitigated by enacting a program focusing primarily upon ethics and tolerance without religion.

For these reasons, the religious aspects of ERC should be severed from the program, and the tolerance or “moral” character should be retained, albeit in a more neutral manner. This would then allow parents and/or private institutions to fill the void, absent state influence. Nevertheless, this is not a change which should be mandated by the Supreme Court, given that it is the role of legislatures to enact laws and not the Courts.

Rather, the SCC’s role is to ensure laws passed by legislatures meet minimum constitutional standards. In this case, imposing a mandatory course on religion without allowing for an exemption, infringes the plaintiffs fundamental right of freedom of conscience and religion. As such, the SCC should rule against the heavy handed ERC regardless of its benevolent intent. ERC as it stands exceeds the role of the state, penetrating into the rights and freedoms of individuals. Thus the SCC  should rule, at the bare minimum, that an optional exemption from the ERC is necessary.