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Index

Christian Medical and Dental Society of Canada v. College of Physicians

Toronto v. Fountas

Kisilowsky v. Manitoba

Servatius v. School District 70

UAlberta Pro-Life v. University of Alberta

Ryerson Men’s Issues Awareness Society v. Ryerson Students’ Union

Speak for the Weak v. Student Association at Durham College and University of Ontario Institute of Technology

Students for Life v. University of Toronto Mississauga Students’ Union

Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario

The Justice Centre has been granted intervenor status in two related cases in Ontario brought by the Christian Medical and Dental Society of Canada (“CMDS”) and others against the College of Physicians and Surgeons of Ontario (the “CPSO”) (Court File Nos.: 499-16 and 500-16 in the Ontario Superior Court of Justice).

The CPSO has adopted policies that require medical practitioners to (1) provide “an effective referral” for medical procedures and services, even if those services conflict with a doctor’s conscientious or religious beliefs, and even to perform such services when “necessary to prevent imminent harm”; and (2) provide “an effective referral” for physician-assisted suicide, also known as Medical Assistance in Dying (“MAID”). The Justice Centre’s intervention in these two cases will focus on the Supreme Court’s repeated rulings that there is no Charter right to health care.  We make the point that there is therefore no Charter right to any medical procedure, including MAID.  Further, there is no right, Charter or otherwise, to demand that an individual doctor perform or provide an “effective referral” for a specific medical procedure or service that violates that doctor’s conscientious or religious beliefs.  On the contrary, doctors have protected conscience and religious rights under section 2(a) of the Charter, and government bodies like the College are required to respect those Charter freedoms. This court application will be heard in Edmonton June 8 and 9, 2017.

Toronto v. Fountas

Erik Fountas was peacefully expressing his beliefs on a public sidewalk when Toronto Police charged him with obstructing a street.

Around noon on February 2, 2016, Erik Fountas and a colleague began preaching near the corner of Yonge Street and Gould Street. Erik was preaching on a wide sidewalk area, near a large concrete staircase that leads up to a Ryerson University building. Erik was preaching at the street edge of the sidewalk, facing toward the staircase, when a small crowd formed in front of him.

The Toronto Police Service (TPS) received a complaint about a comment Erik allegedly made while he was speaking to the small group of listeners. Two TPS officers requested that Erik leave. When he refused, they issued him a ticket for “encumbering a street” and therefore violating 313-2A of the Toronto Municipal Code. The By-law in question states:

“No person shall obstruct, encumber, injure or foul or cause or permit the obstructing, encumbering, injuring or fouling of any street.”

The TPS officers claimed that the crowd listening to Erik was so large that it blocked entirely the passage of pedestrians on the Gould Street sidewalk.

The Justice Centre is representing Erik as he challenges the ticket and defends his freedom of expression. A hearing will be held on May 29, 2017.

Kisilowsky v. Manitoba

The Justice Centre is representing a former Manitoba Marriage Commissioner, Kevin Kisilowsky, who lost his licence to perform marriages after he indicated that, based on his religious beliefs, he was unable to perform same-sex ceremonies.

Apart from Mr. Kisilowsky and a very small number of other marriage commissioners, almost all of Manitoba’s more than 1,000 marriage commissioners are willing and able to provide same-sex ceremonies. There is no need for Manitoba to require each and every marriage commissioner to be willing to provide this service. Mr. Kisilowsky is asking only that the government provide reasonable accommodation for him, as other provinces have done for their marriage commissioners, without imposing hardship on any party. A hearing is set for September 8, 2016.

Servatius v. School District 70

In September of 2015, Candice Servatius received a letter from the principal of John Howitt Elementary School (JHES) in Port Alberni, BC, where her two children attend.  The letter informed parents that JHES would be hosting a “Traditional Nuu-chah-nulth Classroom/Student Cleansing” performed by a “Nuu-chah-nulth Member” in the school’s classrooms. The letter did not provide a date for when these cleansing rituals would take place.

The letter from the school described specific beliefs of the Nuu-chah-nulth: “everything is one, all is connected” and “everything has a spirit.”  The school’s letter described in detail how the cleansing ritual would “cleanse” the classroom of “energy” and cleanse the students’ “spirits.” The letter claimed that without cleansing, the classroom and even the furniture would harbour negative “energy” and would not be safe until the “energy” was “released.” The letter stated that each student would participate in the cleansing ritual by holding onto a cedar branch while having “smoke from Sage fanned over [their] body and spirit.”  Agree or disagree with these beliefs as you wish, but there is no denying that these aboriginal teachings are as “religious” as any that might be found in the Bible or Koran.

Concerned about the explicitly religious nature of the cleansing ritual, Mrs. Servatius went to the school to learn more.  She was shocked to find out that this “cleansing ritual” had already been imposed on her children.

Her daughter explained that she had been coerced by the teacher to participate in the cleansing ritual. When Mrs. Servatius’ daughter expressed to her teacher that she did not want to participate, the teacher told Mrs. Servatius’ daughter that it would be “rude” not to participate in the religious ritual and that “all” the students were “required” to participate.

In January of 2016, Mrs. Servatius learned from her children that a prayer based on Aboriginal spirituality had been performed at a JHES student assembly, with explicit references to an unspecified “god”.  JHES did not notify parents.

School District 70 denies that these religious ceremonies and prayers are violating the religious freedom of Mrs. Servatius and her children, and claims that these are merely “cultural”.

The School District’s claim that these are cultural practices is true, but misses the point. There is a world of difference between teaching children about Islam, and requiring children to kneel on prayer rugs in the direction of Mecca and say a prayer to Allah.  In similar fashion, students can benefit from learning about aboriginal religious beliefs without being coerced to participate in religious rituals and ceremonies.

The fact that a religious ritual like smudging might also be “cultural” is irrelevant to whether religious freedom has been violated, according to the Supreme Court of Canada.  In Mouvement laique quebecois v. City of Saguenay, the court ruled that “the state must neither encourage nor discourage any form of religious conviction whatsoever.  If the state adheres to a form of religious expression under the guise of cultural or historical reality or heritage, it breaches its duty of neutrality.”

In Saguenay, an atheist adult won the right to be spared the indignity of being present while City Councillors said a non-denominational prayer that was opened and concluded with the words “in the name of the Father, the Son and the Holy Spirit.”  He was not required to participate in the prayer, unlike Mrs. Servatius’ children, one of whom was told by her teacher that it would be “rude” to refuse the “cleansing” of her “spirit” by Sage smoke.

The Saguenay ruling rejected a compromise policy to have the atheist leave the Council Chambers during the prayer, because this exacerbates discrimination: “If he chose to exclude himself from the prayer either by refusing to participate in it or by leaving the chamber, he would be forced to reveal that he is a non-believer… Such interference constitutes an infringement of the complainant’s freedom of conscience and religion.”

In spite of the cultural benefits that might flow from having children say the Lord’s Prayer in schools, courts have interpreted the Canadian Charter of Rights and Freedoms as including a right to be “free from” religion.  That means not coercing children or adults to participate in any religious prayer, ritual, ceremony or practice.

The violation of religious freedom through the imposition of prayer on children in the classroom cannot be avoided by providing exemptions to excuse some children from participation.  The Ontario Court of Appeal in 1988 ruled in Zylberberg v. Sudbury Board of Education that mandated religious practices violate the religious freedom of students and parents, even if students have the right to be exempted from participating in the religious practice.  The court ruled that “Peer pressures, and the desire to conform, are notoriously effective with children. Does common experience not tell us that these things are so, and that such feelings might easily, and reasonably, lead some not to seek exemption, and unwillingly conform, or others to seek it, and be forced to suffer the consequences to their feelings and convictions? … The peer pressure and the class-room norms to which children are acutely sensitive, in our opinion, are real and pervasive … Thus the excusal provision in its operation subjects [non-conforming children] to a cruel dilemma.  In consequence, even devout children may well avoid claiming their right and simply continue to participate in exercises distasteful to them because of an understandable reluctance to be stigmatized as atheists or nonconformists simply on the basis of their request. …  children are disinclined at this age to step out of line or to flout “peer-group norms”. … The requirement that pupils attend religious exercises, unless exempt, compels students and parents to make a religious statement. … the exemption provision imposes a penalty on pupils from religious minorities who utilize it by stigmatizing them as non-conformists and setting them apart from their fellow students … the conclusion is inescapable that the exemption provision fails to mitigate the infringement of freedom of conscience and religion.”

In November of 2016, the Justice Centre filed a Petition with the BC Supreme Court in Nanaimo, BC.  Mrs. Servatius seeks a declaration that the actions of School District 70 in forcing her children to participate in a cleansing ritual and be subject to religious prayer have violated her and her children’s religious freedom.

The School District argues that children benefit from learning about aboriginal cultures, including aboriginal religions.  Yes, and one can teach kids about aboriginal religious beliefs without hosting religious rituals and ceremonies in the classroom.

UAlberta Pro-Life v. University of Alberta

The Justice Centre is acting on behalf of Amberlee Nicol, Cameron Wilson, and the student club UAlberta Pro-Life in its court application against the University of Alberta to challenge a $17,500 “security fee” demanded by the University in order for the group to set up a peaceful display on campus in February 2016.  The court application also challenges the University’s decision to condone violations of the Code of Student Behaviour (Code) directed against the pro-life club in March of 2015.

On January 11, 2016, UAlberta Pro-Life applied for University authorization to set up a stationary educational display on campus on February 23 and 24, 2016.  On February 12, only eleven days prior to the scheduled event, the University of Alberta notified the students that they would need to pay $17,500 in “security fees” to proceed with their peaceful educational display.  In its communication, the University demanded that pro-life students pay for the wages of security guards and police, and costs of barricading the venue, and pay for the potential misconduct of people who would violate the University’s Code of Student Behaviour by obstructing and disrupting the display.  Unable to pay $17,500, UAlberta Pro-Life was forced to cancel its planned event in February 2016.

In March of 2015, UAlberta Pro-Life held a similar event, which (then) President Indira Samarasekera supported through a public statement that the University must facilitate and protect the peaceful expression of all views, regardless of popularity.  In defiance of the President’s clear statement about free expression and the rule of law, a student-led mob blockaded and obstructed the club’s display, in violation of the Code of Student Behaviour.  Although the University had advance notice that a mob was being organized to obstruct the display, and although Dr. Samarasekera had warned that any misbehaviour would be investigated and prosecuted, the University of Alberta Protective Services (UAPS) did nothing to stop the blockade of the club’s display.  UAPS did not photograph or seek to identify any blockading student, even though the Code clearly prohibits students from disrupting or obstructing University-related functions.

On March 11, 2015, UAlberta Pro-Life filed a formal complaint with UAPS against the disruptive students pursuant to the Code of Student Behaviour. It took UAPS over eight months to release a decision in regard to the complaint.  In its November 30, 2015 decision, UAPS confirmed that the University would neither charge nor prosecute the students who disrupted, blocked and obstructed the March 2015 display on campus.

On December 18, 2015, the Justice Centre wrote to the University of Alberta Office of Student Conduct and Accountability to appeal the UAPS Decision. On February 4, 2016, the Office of Student Conduct and Accountability dismissed the appeal.

In its court application, UAlberta Pro-Life seeks a declaration that the decision made by the University of Alberta to impose a $17,500 security fee on the club is illegal and unjustifiably infringes the fundamental Canadian value of freedom of expression, also protected by section 2(b) of the Canadian Charter of Rights and Freedoms.  The court application further seeks to prohibit the University from imposing a financial burden on the students as a condition for the exercise of their freedom of speech.

This court application also seeks a declaration that the decision made by the University of Alberta to condone the conduct of students who disrupted and blockaded the University-authorized campus event of UAlberta Pro-Life in March of 2015, is unreasonable and therefore illegal.

Ryerson Men’s Issues Awareness Society v. Ryerson Students’ Union

The Ryerson Students’ Union (RSU) has denied club status to a student group seeking to discuss issues and views on campus that RSU executives disagree with.

The Men’s Issues Awareness Society at Ryerson (MIAS) is a student group established in 2015 by students at Ryerson “to host discussions and bring social awareness to issues that disproportionately affect men and boys, such as higher rates of suicide, homelessness, workplace injuries and failure in school.”  Nearly half of MIAS’ members are women.

On October 19, 2015, MIAS submitted its application to RSU for recognition as a student group.  At a meeting with RSU’s Student Group Committee on October 26, RSU told MIAS that there was no need for a men’s issues group.  RSU took the position that other groups like the Women and Trans Collective were already addressing many of the issues MIAS sought to focus on.  Further, RSU claimed that men have “systemic privilege,” and that a group focused on men’s issues would “harass” women and make them feel “unsafe”.

On October 27, 2015, MIAS was informed that its application for club status had been rejected. MIAS immediately appealed the decision, making numerous changes to its constitution to answer concerns the RSU had listed. These amendments expressly stated MIAS’ pre-existing commitments to remain independent of any external control, to reject all forms of violence and hate speech, to take all precautions for safety at any group functions, and to provide a safe place for discussions free of fear for personal safety. Nevertheless, on January 26, 2016, the RSU Board of Directors voted to reject MIAS’ appeal.

As a result of RSU’s decision to deny club status, MIAS is excluded from RSU club services such as funding, advertising, event approval services, and free room and facility bookings, even though MIAS members are required to pay fees to RSU.  RSU has recognized over 80 other student groups, ranging from ideological and religious clubs to shared ethnic and hobby clubs.  Without student group recognition, MIAS has been forced to hold events off campus, because they cannot afford to book event rooms on campus.  This has made it very difficult for the group to engage with their peers and attract new members.

The Justice Centre has filed a court application against RSU on behalf of MIAS.  In the court application, MIAS seeks a declaration that the decision of the RSU to deny their application for student group recognition (i) was contrary to the principles of natural justice and procedural fairness, (ii) was tainted by a closed mind and bias, and (iii) was not made in good faith; that it exceeds RSU’s jurisdiction and is contrary to RSU’s own policies and rules; and that it is unreasonable, discriminatory and contrary to fundamental common law values and the values of the Canadian Charter of Rights and Freedoms, by failing to respect Ryerson University students’ freedom of expression and freedom of association.  This court application further seeks an order prohibiting RSU from limiting access to its services and other resources on account of the thoughts, beliefs, opinions, expressions or associations of students or student groups.

On January 17, 2017, the Justice Centre questioned current RSU President, Obaid Ullah, and Kevin Arriola was questioned by RSU’s counsel.  A hearing date is currently being sought.

Speak for the Weak v. Student Association at Durham College and University of Ontario Institute of Technology

The Student Association of Durham College and University of Ontario Institute of Technology (“Student Association”) refused to grant club recognition to the student group, Speak for the Weak, due to its stance on abortion.  The Student Association claims that allowing a pro-life club on campus would constitute “systemic societal oppression”, and would violate “human rights”.  The Student Association further claims that only clubs which support abortion are “equity-seeking” and therefore allowed on campus.

Speak for the Weak’s application for club status was denied in September 2015.  The students spent most of the fall semester unsuccessfully attempting to appeal the decision to the Student Association’s Board of Directors. Without club status, student groups cannot gain access to Student Association space and resources, making it very difficult to conduct activities and engage with the student body.

In a court application filed on behalf of Speak for the Weak, the Justice Centre argues that the Student Association has violated its own policies and rules, failed to follow the principles of natural justice, based its decision on irrelevant considerations, and failed to respect students’ freedoms of expression and association.

Students for Life v. University of Toronto Mississauga Students’ Union

The University of Toronto Mississauga Students’ Union (UTMSU) refused to renew the club status of Students for Life for the 2015-16 year, effectively barring the student group from using the student centre and accessing student union resources.  As a result, in September of 2015, Students for Life could not join other campus clubs in setting up a table during clubs’ week—a key event for recruiting new members.

UTMSU had granted club status for Students for Life in the 2014-15 school year, but changed its mind specifically because of Students for Life’s “stance on Abortion”.  UTMSU’s mission statement includes a commitment “[t]o safeguard the individual rights of the student, regardless of race, creed, sex … or personal or political beliefs,” and lists “strength in diverse voices and opinions” as a “fundamental belief.”

After receiving a legal warning letter from the Justice Centre in October 2015, Russ Adade, UTMSU Vice-President, changed his previous rationale for denying club status to Students for Life, namely, the club’s stance on abortion.  Adade instead told Students for Life that the reason their club was denied status was “violations and discrepancies we found within your constitution in relation to the clubs handbook and UTMSU operational policy as it pertains to clubs.”

Students for Life immediately made the required changes to their constitution, but UTMSU has continued to deny club status, necessitating a court application.

The Justice Centre has filed a court application on behalf of Students for Life against UTMSU for violating its own rules, for acting with bias and bad faith, for breaching the rules of natural justice and procedural fairness, and for failing to respect students’ fundamental freedoms of expression and association.