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Index

Grace Chapel v. New Westminster Anvil Centre

Weld v. Ottawa Public Library

Canada Summer Jobs Attestation

Parents, Independent and Religious Schools v. Alberta Minister of Education

PARLA v. City of Prince Albert

Nicholas Troller v. Manitoba Public Insurance

Lorne Grabher v. Nova Scotia Registrar of Motor Vehicles

Independent Baptist Academies v. Minister of Education

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

Servatius v. School District 70

UAlberta Pro-Life v. University of Alberta

 

Grace Chapel v. New Westminster Anvil Centre

Grace Chapel, a parish of The Redeemed Christian Church of God BC, is located in downtown New Westminster. Part of Grace Chapel’s vision is to “build a multi-ethnic, diverse church were people of every nation in our community will worship God…” Grace Chapel does not have a church building of its own. Church events are held in rented spaces throughout New Westminster, including the municipally-owned and managed Anvil Centre.

On May 25, Grace Chapel signed a contract with the  City of New Westminster to rent a portion of the Anvil Centre. The rental was for a religious youth conference called “Get a Grip”, which was to be held on July 21, 2018. The theme for the conference is “LGBT: Let God Be True”. The focus of the conference, to be attended by youth and young adults aged 13-25 is on Biblical teachings regarding sexuality and identity issues.

On June 21, 2018, Grace Chapel received an email from Anvil Centre Director of Sales & Marketing, Heidi Hughes. Ms. Hughes stated that the Anvil Centre was reneging on the contract and cancelling the rental. The email stated:

We became aware today, that one of your event speakers / facilitators, Kari Simpson, highlighted for your July 21st, 2018 event, vocally represents views and a perspective that run counter to City of New Westminster and Anvil Centre booking policy.

Specifically [sic] Anvil Centre booking policy restricts or prohibits user groups if they promote racism, hate, violence, censorship, crime or other unethical pursuits. In accordance with our policy we are informing you that we are cancelling your booking and will immediately process a refund for the entirety of your booking fee.

Ms. Hughes did not state how the inclusion of a particular speaker at the conference caused Grace Chapel to “promote racism, hate, violence, censorship, crime or other unethical pursuits”, or how it is possible that this speaker’s “views” or “perspective” could contravene the Anvil Centre Booking Policy.

The Canadian Charter of Rights and Freedoms guarantees Canadians the fundamental freedoms of expression, association, conscience, religion and peaceful assembly. As a government-operated facility that is regularly used by diverse parties for expressive and associative activities, the Anvil Centre cannot deny use of its facilities in a manner that unjustifiably infringes the freedoms protected by section 2 of the Charter.

The Anvil Centre is a multi-purpose civic facility operated by the City of New Westminster. As a public entity, the Centre is legally obligated to uphold, as part of the freedom of expression, the right of citizens to hear, listen and consider all views and perspectives. Section 2(b) of the Charter protects the right to receive expressive material as much as it does the right to speak.

The Justice Centre wrote to the City on July 6, 2018, stating: “Section 2(b) of the Charter protects the right to receive expressive material as much as it does the right to speak. By cancelling the rental, the Anvil Centre unjustifiably infringed the constitutional right of those intending to attend the conference to receive information, and to listen and consider diverse opinions on topics of interest to them.” The City has not yet responded.

Weld v. Ottawa Public Library

The Justice Centre has filed a court application against the Ottawa Public Library, on behalf of Madeline Weld and Valerie Thomas. This court application challenges the Library’s decision to cancel a private viewing of the documentary film “Killing Europe.”  This documentary discusses several social, political, and cultural topics relating to Europe. It includes footage of the documentary’s producer, Michael Hansen, interviewing various people to solicit their views and describe their experiences.

This documentary was scheduled to be screened on November 25, 2017 in the auditorium of the Library’s Main Branch, available for viewing only to those who paid for admission.  The film’s producer Michael Hansen was scheduled to give a presentation following the viewing of the film, and to take questions from the audience.

On October 27, 2017 the Ottawa Public Library informed Ms. Weld that her booking request had been “reviewed and confirmed” by library staff. Ms. Weld paid the required fee on the same day and the Library provided her with a copy of the rental contract.  On November 14, Ms. Weld received a telephone call from Catherine Seaman, Senior Manager at the Ottawa Public Library, who inquired as to whether Ms. Weld would adhere to the Ontario Human Rights Code and the Criminal Code. Ms. Weld responded that the viewing of the documentary would not violate either code.

During the same telephone call, Ms. Seaman stated that the Ottawa Public Library was “anticipating disruptions” and would therefore require Ms. Weld to pay for security, to which she agreed.

On November 24, Ottawa Public Library Chief Executive Officer Danielle McDonald emailed Ms. Weld stating that, “[a]s a result of a number of complaints that have been raised, Library staff have undertaken a further review of the presentation entitled, Killing Europe, which you have proposed to screen at the Ottawa Public Library’s Main branch tomorrow.” Ms. McDonald further stated that “it is my view that the content falls within the category of material that the Library is not prepared to have displayed or screened on its property. As a result, I must advise that the Library is immediately cancelling the booking in question.”

In a court application filed on June 11, 2018, the Applicants seek, among other things:

  • judicial review of the Ottawa Public Library’s decision to cancel the booking to view the documentary film;
  • a declaration that the Library’s decision unjustifiably violates freedom of expression as protected by section 2(b) of the Canadian Charter of Rights and Freedoms, including the right to receive expressive material;
  • a declaration that the Library’s decision is unreasonable, and violates the Library’s own policies, such as its Intellectual Freedom policy;
  • a court order requiring the Library to re-book the auditorium for the viewing of the documentary.

 

Rhea Lynne & William Anderson v. Canada (Minister of Employment, Workforce Development and Labour)

The Justice Centre has filed a court application against the federal Minister of Employment, Workforce Development and Labour, Patty Hajdu, on behalf of a small, family owned-business providing agricultural irrigation services in southern Alberta.  Their application to provide a summer position for a student interested in water conservation or environmental sciences through the Canada Summer Jobs (CSJ) program was rejected because they refused to comply with the new 2018 attestation, which requires applicants to express agreement with the Liberal governments’ views on abortion and sexuality.

Starting this year, charities and small businesses must express their support for abortion being legal if they wish to access a grant through the Canada Summer Jobs program, which provides federal government grants to hire summer students. Further, charities and small businesses must express agreement with the idea that abortion is a Charter right, in spite of the fact that the Supreme Court of Canada ruled in R. v. Morgentaler that Parliament can legislate to protect unborn life.

The applicants, Rhea Lynne Anderson and William Anderson, are a married couple residing near Brooks, Alberta.  The Andersons are the sole owners of A-1 Irrigation & Technical Services (“A-1”), which offers ecologically responsible irrigation services to local farming operations.

Believing that they could provide a quality summer job to a qualified student, the Andersons submitted a CSJ application on January 24, 2018.  However, the Andersons submitted their 2018 CSJ application without checking the “I attest” box, because they object to being compelled to express their agreement and respect for ideological positions as required by the new attestation requirement, which reads:

Both the job and my organization’s core mandate respect individual human rights in Canada, and the values underlying the Canadian Charter of Rights and Freedoms as well as other rights. These include reproductive rights and the right to be free from discrimination on the basis of sex, religion, race, national or ethnic origin, colour, mental or physical disability or sexual orientation, or gender identity or expression. 

The federal government has defined “respecting” “reproductive rights” as including “the right to access safe and legal abortions”.  The 2018 CSJ Application Guide states that the federal government “recognizes” that “the right to access safe and legal abortions” is protected by the Charter and human rights legislation.

On February 9, 2018, the Andersons received the following reply from Service Canada:

The essential requirements listed below are missing from your application, and  therefore we are unable to determine your organization’s eligibility or the eligibility of the activities proposed in your application:

The signatory must check the “I attest” box to confirm eligibility and add his/her initials next to the box.

In order to determine the eligibility of your organization and its proposed activities, you must provide us with the above essential missing requirements within 10 business days following the date of this correspondence. If you fail to respond within the above specified timeframe, your application will be deemed incomplete and will therefore not be eligible for assessment. (Emphasis added)

On February 10, 2018, the Andersons responded to Service Canada, indicating that they would not be checking the “I attest” box because they viewed it as unconstitutional for the Government “to require a specific prescription of personal beliefs” to qualify for participation in a government program.

The court application seeks a declaration that the new attestation requirement violates section 2(a) and 2(b) Charter freedoms of conscience and expression.  The new attestation requirement also breaches the duty of state neutrality, because it compels the Andersons to profess their agreement with, and ostensibly adopt, specific beliefs and values in order to qualify for a government benefit to which they would otherwise be entitled.

The court application further seeks a declaration that the new attestation requirement violates section 32 of the Charter by compelling private entities to assume the legal obligations of the Charter that only the government is required to honour.

The Andersons also seek a declaration that the new attestation requirement is ultra vires the authority of the federal government, and a court order to strike the new attestation requirement and to approve their CSJ application.

As Rhea Lynne Anderson explains in her filed affidavit:

My husband and I, and our business, comply fully with human rights legislation, and with all federal, provincial and municipal laws. The New Attestation Requirement is not simply a commitment to comply with legislation, but instead asks us to agree with the government’s “values” and to be bound by the Charter as though we are government actors.

Since the February 9, 2018, deadline for applying for Canada Summer Jobs funding, numerous charities have been told, in writing, that they will not receive funding unless they check off the “I attest” box on the application, to confirm their support for legal abortion and rights based on gender identity and gender expression as a Charter rights.

The Justice Centre filed an application on behalf of the Applicants on April 26, 2018, and the Crown agreed to a hearing date of November 23, 2018 for a hearing on the merits. In an attempt to have the case struck, the Crown argued on September 12, 2018, that the superior courts, such as the Alberta Court of Queen’s Bench, have no jurisdiction over the Andersons’ Charter claim against the Federal Crown. The Trudeau government claims that the Federal Court has exclusive jurisdiction to grant the declaratory relief sought with respect to Ministerial policy. On September 12, the Court indefinitely delayed hearing this case until the federal government confirms that the same attestation will be included in the 2019 Canada Summer Jobs application.

 

Parents, Independent and Religious Schools v. Alberta Minister of Education

The Justice Centre has filed a court application on behalf of a coalition of parents and independent schools, challenging the constitutionality of School Act provisions added by Bill 24, ‘An Act to Support Gay-Straight Alliances’.

This court application asks the court to strike down provisions of Bill 24 on the basis that they violate the rights of parents and schools protected by section 2(a), 2(b), 2(d) and 7 rights under the Canadian Charter of Rights and Freedoms (the “Charter”) and the Alberta Bill of Rights.  The court application also seeks an injunction staying the operation of the challenged provisions until the Court rules on their constitutionality.

Primary among the provisions challenged is the requirement that prohibits principals and teachers from notifying parents about student organizations or “activities”, other than the establishment of the organization or the holding of the activity.

The applicants include 26 faith-based schools in Alberta, including Jewish, Christian, and Sikh schools. Bill 24 threatens faith-based schools by attacking the freedom of these schools to create safe and welcoming learning environments while also respecting their unique religious characters, and by preventing schools from being open and transparent with parents.

The applicants also include more than ten individual parents who are concerned about Bill 24’s provisions that prevent parental knowledge about their children in GSA-related activities. Creating no-go zones for parental awareness jeopardizes the safety of Alberta’s children, especially the most vulnerable, and undermines parents’ ability to support and protect their own children.

Bill 24 was passed by the Alberta Legislature in November of 2017.  Bill 24 amends the School Act to make it illegal for the school principal to notify parents about their child’s involvement in student organizations, including Gay-Straight Alliances (GSAs), or “activities” established under section 16.1 of the School Act.

Prior to the passage of Bill 24, principals and teachers had discretion to withhold information from parents on a case-by-case basis.  In rare and unusual cases where there was a risk that providing parents with information would result in a risk of abuse or other harm to a student, schools had the legal authority to withhold information from parents.  Bill 24 removes this discretion from teachers and principals, and replaces it with a blanket prohibition that prevents informing all parents, without exception, about their children’s involvement in GSAs and GSA-related activities.

Bill 24 further requires principals to set up a GSA or facilitate a GSA-related activity “immediately” (at the request of one student) without consulting the school board or parents, and without considering whether the GSA and GSA-related activities are compatible with the school’s nature, character and values.  Parents with concerns about the sexual or ideological content of what is presented in GSA meetings or at GSA-related activities can no longer protect their children from this content, due to the secrecy provisions of Bill 24.

Bill 24 makes no distinction between a five-year-old in Kindergarten who is experiencing gender identity confusion, and a seventeen-year-old in Grade 12 who does not wish to discuss sexuality with his parents.  In both cases, teachers are legally barred from providing any information to parents about GSAs or GSA-related activities.  The Alberta government’s GSA Network website welcomes queries from children, and asks whether they are in elementary school or high school.

The Supreme Court of Canada has ruled that government may not interfere with parental rights to make decisions for their children, unless the government first proves that the parents’ decisions are harmful to the child, or that the child is a mature minor and has made a fully informed decision contrary to parental views.  Government may only interfere on a case-by-case basis, and government must bear the onus of proving or justifying its interference in a court of law, upon notice to the parents, who can dispute the government’s claims.

Bill 24’s infringement of parental rights is not justified by a blanket ban on withholding information from all parents, including the 99% of parents who love and support their children unconditionally, and know their children better than anyone else.  Requiring school principals and teachers, by law, to withhold information from all parents without exception is contrary to the Constitution, contrary to Canada’s legal obligations under international law, contrary to the Alberta Bill of Rights, and contrary to other Alberta legislation such as the Family Law Act.

Section 7 of the Charter only permits interference with a parent’s role after due process, on a case-by-case basis, in accordance with the principles of fundamental justice.  Section 2 of the Charter protects a parent’s right to educate based on parents’ own conscience and religious beliefs.  The Charter also protects the right of religious educators not to be compelled to express thoughts and beliefs against their will.

The prohibition on parental notification concerning a GSA or GSA-related activity violates the fundamental right of parents to be informed concerning their children’s education.  Further, there is no real benefit to be realized from the prohibition, since the few children at risk from their parents are already protected by child protection legislation.

Bill 24 evidences the government’s intention to control parents and religious schools and infringe their constitutional rights.   In so doing, the government undermines or effectively negates the exercise of parental rights in education, through the choices of parents to opt out of the public schools and enrol their children in schools consistent with their beliefs, religious and conscientious.  Rather than respecting parents’ choices, Bill 24 instead compels independent schools to adopt policy positions in support of the government’s preferred ideology, evidenced in the materials it supports and recommends for use in GSAs.  This requirement violates parents’ and private schools’ fundamental freedoms of conscience and religion, thought, belief, opinion and expression, and association, guaranteed under section 2 of the Charter.

Bill 24 is therefore unconstitutional, as both its purpose and effect is to deny the rights of parents under section 7 and section 2 of the Charter, and to do so without the requisite justification.

A summary of the Justice Centre’s legal analysis on Bill 24 can be found here.

A hearing of the Bill 24 court injunction application was held on June 20, 2018, at the Court of Queen’s Bench in Medicine Hat. On June 27, the Court dismissed the application for an injunction. The Applicants have appealed this decision to the Alberta Court of Appeal, which will hear the matter as a fast track appeal. A hearing at the Alberta Court of Appeal will take place December 3, 2018.

In September of 2018, Deputy Minister Curtis Clark threatened religious schools with defunding and loss of accreditation if they do not remove religious content from their “Safe and Caring” school policies.

During the week of October 1-5, several schools whose Safe and Caring policies had been deemed non-compliant by the Alberta Education “Safe and Caring Team” requested clarification (123) as to how the religious views expressed in their policies could be found to violate “diversity” or be “unwelcoming, uncaring and/or disrespectful”.The October correspondence shows the Alberta government refusing to provide any explanation as to how, for example, “diversity” is threatened by a school’s policy that reflects the school’s belief in the Bible as truth.  The October correspondence shows Alberta Education justifying its ban on faith references in school policies solely on the basis of “the opinion of the Minister.”

Various schools responded to this “rainbow reprimand” by asking simple and direct questions about how or why the religious content of their school policies was contrary to “diversity” or contrary to providing a safe, welcoming, caring and respectful learning environment.  Alberta Education responded with a form response (12) that cited only “the opinion of the Minister” to support Alberta Education’s conclusion that these schools’ religious beliefs, expressed in their own school policies, were unacceptable.

PARLA v. City of Prince Albert

The City of Prince Albert maintains a courtesy flag pole in Memorial Square at City Hall and permits groups or organizations to fly the flag “to help increase public awareness of their programs and activities.”  The City of Prince Albert regularly grants applications to use the courtesy flag pole, and issues proclamations in support of various causes, including Falun Dafa, hunger awareness, naturopathic medicine, national public works, paramedics services, motorcycle awareness, occupational health and safety, LGBT Pride, gender diversity, transgenderism, literacy, seniors and Saskatchewan Ukrainians.

PARLA is a non-profit organization, comprised of Prince Albert and area residents, which seeks to promote the sanctity of life at all stages of development.  PARLA’s work includes hosting Pro-Life events such as “Celebrate Life Week” and “Life Chain”, as well as other activities, such as providing aid to women and families with unplanned pregnancies.

As explained in the filed affidavit of Valerie Hettrick, PARLA has been permitted to raise a flag on the City’s courtesy flag pole for “Celebrate Life Week” for the past 20 years.  Since 2007, PARLA has flown the same pink and white flag with a logo of “Umbert the Unborn”, a cartoon fetus. The phrases “Celebrate Life Week” and “Please Let Me Live” also appear on the flag.

However, on or around May 4, 2017, PARLA was informed by Prince Albert Mayor Greg Dionne that their flag could not be raised as it was not a “national flag” or “nationally recognized flag”.  The Mayor stated that Celebrate Life Week would still be proclaimed.

PARLA sent a letter to the Mayor, requesting that he clarify in writing the requirement for a “national” flag and specify what bylaw or policy that requirement was based on.  PARLA never received a response to its letter.

The Mayor later informed the media that PARLA’s flag, used since 2007, would never again fly at City Hall, but that he would be open to a different pro-life flag.

The Justice Centre has filed a court application against the City of Prince Albert, seeking a reversal of the City’s rejection of the Prince Albert Right to Life Association’s (“PARLA”) application to continue with its annual raising of a pro-life flag.  The court application, filed on November 6, seeks judicial review of the City’s decision to deny PARLA’s application to raise their flag, and a declaration that the decision is “arbitrary, unreasonable and contrary to the principles of natural justice and procedural fairness.” The court application further seeks a declaration that the decision to deny a flag raising permit violates sections 2(b) of the Canadian Charter of Rights and Freedoms. Finally, the application seeks a court order to permit PARLA to raise their flag on the City’s courtesy pole.

A hearing was held September 25, 2018 in Prince Albert. A decision is pending.

Nicholas Troller v. Manitoba Public Insurance

The Justice Centre for Constitutional Freedoms (JCCF.ca) Centre has filed a court application against Manitoba Public Insurance (MPI) on behalf of Winnipeg resident Nicholas Troller, whose personalized Star Trek licence plate was deemed “offensive” by MPI.

Mr. Troller, an enthusiast of Star Trek, applied and paid the required fee to receive the personalized licence plate “ASIMIL8” in 2015.  MPI approved his application and issued the plate.  Mr. Troller installed the plate on his family vehicle, along with a licence plate border that stated “WE ARE THE BORG” and “RESISTANCE IS FUTILE”.  The plate and accompanying border are a reference to Star Trek.

As stated in his filed Affidavit, Mr. Troller has been approached by many people commenting positively on the plate and asking for pictures with it.  The plate was renewed by MPI in 2016 without question or concern.

On April 26, 2017, Mr. Troller received a letter from MPI informing him that the plate “is considered offensive.”  The letter does not say why the plate is considered offensive, or by whom. In its letter, MPI informed Mr. Troller that he had until May 1, 2017, to surrender his plate, and did not provide him any recourse to appeal its decision.

The Justice Centre wrote to MPI on May 29, 2017 demanding that it reinstate Mr. Troller’s licence plate no later than June 9, 2017. MPI responded on July 7, stating it was “unable to reinstate the plate as requested”.

Nicholas Troller seeks a declaration from the Court that MPI’s decision to revoke his personalized plate is a violation of his Charter-protected right to free expression. The court application further seeks reinstatement of Mr. Troller’s plate, and/or a quashing of the initial decision to revoke.

Mr. Troller has first-hand experience with the unreasoning grind of bureaucracy, noting in his Affidavit:

The irony of the rescission of my freedom of expression is not lost on me: I have been assimilated by the bureaucratic machine. The expression on the Plate has been subsumed and erased. Like the Borg, MPI is vastly more powerful than I. And like the Borg, it feels no need to explain itself to the people in its path when it suddenly reverses course.

This matter has been adjourned for the purposes of conducting cross examinations. Further hearing dates are pending.

 

Lorne Grabher v. Nova Scotia Registrar of Motor Vehicles

The Justice Centre for Constitutional Freedoms (JCCF.ca) has filed a court application against the Nova Scotia Registrar of Motor Vehicles (the “Registrar”) after it refused to reinstate the personalized licence plate of Dartmouth, NS pensioner Lorne Grabher, whose surname was deemed too “socially unacceptable” for the road.

Lorne Grabher first purchased the personalized license plate as a gift for his late father in 1991.  It has since become a source of family pride, spanning three generations – Grabher’s son has the family name on his own personalized Alberta license plate.

Mr. Grabher received a letter dated December 9, 2016, from the Office of the Registrar of Motor Vehicles which stated that a complaint had been received regarding his personalized license plate. As a result of the complaint, the Registrar decided to cancel Mr. Grabher’s plate, despite acknowledging it was an explicit reference to Mr. Grabher’s surname. The reason provided for the cancellation was that the plate could be “misinterpreted” as a “socially unacceptable slogan”.

The Justice Centre wrote to the Registrar on March 31, 2017. In its letter, the Justice Centre calls out the Registrar’s decision as “discriminatory,” “arbitrary,” “unreasonable” and in violation of free expression as guaranteed by the Canadian Charter of Rights and Freedoms. It further states that the decision is “an affront to the dignity of Canadians, and particularly those Canadians who are not of Anglo-Saxon descent.” The letter advised the Registrar to reinstate the plate or face further legal action. The Registrar responded on April 6, 2017, indicating that it would not voluntarily reinstate Mr. Grabher’s plate.

On behalf of Mr. Grabher, the Justice Centre filed a Notice of Application with the Nova Scotia Supreme Court on May 11, 2017. A substantive hearing into Lorne Grabher v. Registrar of Motor Vehicles was scheduled to take place on September 5-6, 2018, but this date has been postponed due to the unavailability of expert Crown witnesses for the September hearing. The court will hear Mr.Grabher’s case on April 23-25, 2019.

Independent Baptist Academies v. Minister of Education

The Justice Centre has responded to an Order that Alberta Education Minister David Eggen issued to two Edmonton-area private Christian schools, in regard to Gay-Straight Alliances (GSAs).

On November 14, 2016, Minister Eggen received a Report from Edmonton lawyer Dan Scott, who had been asked to conduct an Inquiry into Harvest Baptist Academy and Meadows Baptist Academy, both operated by the Independent Baptist Christian Education Society (“IBCES”).  Together the two schools have 84 students, of whom only seven are high-school aged (grades 7-12).  Dan Scott’s Report concludes that both of these schools have been, and are currently, in legislative compliance with the School Act.  On March 22, 2017, Minister Eggen issued an Order telling the schools to comply with the School Act.

In a letter responding to the Minister’s Order, the Justice Centre points out the Minister’s failure to comply with the Freedom of Information and Protection of Privacy Act (“FOIPP Act”), under which Eggen was ordered to release the report by February 6, 2017.  Further, the two schools in respect of which the Report was written did not receive the Report prior to its release to the media and general public.  Calgary lawyer and Justice Centre president John Carpay describesthis as “a lack of courtesy and professionalism.”

The Justice Centre has drawn attention to the 2015 Supreme Court of Canada decision in Loyola High School v. Quebec, in which the Court held that the government cannot “undermine the character of lawful religious institutions and disrupt the vitality of religious communities”, including religious schools. The Court was unanimous in finding that the Education Minister in that case had unlawfully limited freedom of religion.

The Justice Centre further refers the Minister to the Universal Declaration of Human Rights, which states that parents have a prior right to choose the kind of education that shall be given to their children.  Canada’s Constitution also recognizes the right of parents to impart their values to their children through religious schools, regardless of how popular or unpopular that religion’s teachings may be at a particular time or place.

The Court in Loyola quoted from Article 18(4) of the International Covenant on Civil and Political Rights, which Canada ratified in 1976, and which requires governments to “undertake to have respect for the liberty of parents to … ensure the religious and moral education of their children in conformity with their own convictions.”  This Covenant is legally binding on Canada and other party states.

In March of 2016, every school in Alberta submitted its anti-bullying policies to the Education Minister.  Catholic schools have submitted policies that do not allow GSAs to be set up in Catholic schools.  Muslim, Jewish, Christian and other religious schools have submitted similar policies, insisting that student clubs must be respectful of the school’s beliefs and values.

The Justice Centre’s letter reiterates the request from the two Edmonton-area Christian schools, and other private religious schools, to meet face-to-face with the Education Minister.

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

The Justice Centre has been granted intervener status in the appeal of the decision of the Ontario Superior Court of Justice in The Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, 2018 ONSC 579 (CanLII).

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 case was heard June 13-15, 2018. The lower Court dismissed the Applicants’ claims in both cases.

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.

A hearing is scheduled to commence January 22, 2019, and will run for 9 consecutive days.

UAlberta Pro-Life v. University of Alberta

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.

This case was heard by the Court of Queen’s Bench on June 8 and 9, 2017. On October 11, 2017, the Court upheld the decision of the University of Alberta to impose the $17,500 “security fee” as a condition for the campus club UAlberta Pro-Life to set up a stationary display on campus. The judge further upheld the University’s decision to condone violations of the Code of Student Behaviour directed against the pro-life club in March 2015. On October 12, 2017, UAlberta Pro-Life announced it would appeal the Court’s ruling, with a hearing date scheduled for November 28, 2018.