In Servatius v Alberni School District No 70, 2022 BCCA 421, the BC Court of Appeal upheld a judge’s ruling [1] that a mother and her children did not have their right to freedom of religion infringed when the children observed indigenous cultural practices in school. Both decisions are noteworthy for highlighting the importance of reconciliation and the crucial role teaching Indigenous culture in our schools has in that process.
The issues arose as a result of events that occurred in 2016 at John Howitt Elementary School in Port Alberni (“School”). The School had invited guests to demonstrate two Indigenous cultural practices: a smudging event held in a classroom and a hoop dance during which the dancer said a prayer. In response, Candance Servatius, a mother of two students in the School, filed a petition against the Alberni School District No. 70 (“District”). The Petition alleged the District:
- infringed her and her children’s Charter guaranteed freedom of religion by compelling her children to participate in religious ceremonies contrary to their own faith; and
- violated its duty of neutrality by promoting Indigenous spirituality.
Servatius sought an order prohibiting the District from allowing Indigenous cultural events in schools in the future and a declaration of the infringement.
The judge found that Servatius failed to establish that either demonstration interfered with her or her children’s ability to act in accordance with their religious beliefs. The Indigenous cultural practices were only observed by the students as educational experiences and the students did not actively participate in them. As such, their freedom of religion was not infringed. The judge also found that state’s duty of neutrality was not breached as these demonstrations were not expressions of religious favouritism. Rather, the organization of these events reflected a gathering momentum to incorporate the teaching of Indigenous worldviews and perspectives.
Servatius appealed the decision, arguing that the smudging ceremony was a “supernatural” experience that imparted “spiritual beliefs” onto those present in the room. Therefore, her children’s attendance in the classroom where the smudging ceremony was demonstrated amounted to forced participation contrary to her religious beliefs and breached the duty of state neutrality.
The Court of Appeal dismissed Servatius’ appeal. The Court upheld the judge’s findings that the students’ did not participate in the smudging ceremony; they merely observed the ceremony to learn about Indigenous practices and culture. This observation did not amount to compelled participation in a religious ceremony and therefore it was not proven on an objective basis that Servatius or her children’s religious freedom was infringed.
The Court also found that Ms. Servatius’ interpretation of the smudging ceremony as imparting “spiritual beliefs” to those nearby was a view that imposed her own beliefs on what the smudging ceremony meant. The Court emphatically rejected allowing this approach, noting that it was “not for Ms. Servatius to impose her own beliefs on what an Indigenous person is experiencing when demonstrating a cultural tradition to non-Indigenous people” (at para. 184). The evidence from the Indigenous perspective should be preferred, which was that the demonstrations were not religious in nature, but were instead cultural events that were part of community building.
In upholding the judge’s findings that the demonstrations did not breach the duty of state neutrality, the Court of Appeal considered that the judge conducted a careful review of the context in which the demonstrations took place when he rendered his decision. The Court of Appeal noted that:
- schools administered by the District are within traditional Nuu-chah-nulth territories;
- approximately one-third of the students within the District are Indigenous;
- the Alberni Indian Resident School, which operated between 1891-1973, was located not far from the School;
- a direct link could be drawn between the residential schools’ legacy of harm and lower success rates of Indigenous children in schools as compared to other students; and
- teaching Indigenous cultures and perspectives helped make schools feel safe for Indigenous students, who historically associate public education with abuse and trauma.
Considering this context, the Court of Appeal agreed with the judge that the purposes of these demonstrations were not to favour Indigenous beliefs but, rather, to teach students about Indigenous culture and to introduce them to Indigenous perspectives and worldviews as consistent with the curriculum.
The Court’s ruling sent a strong message about the importance public education plays in achieving reconciliation, noting that it was “uncontroversial that public educational institutions need to be involved in reconciliation” (at para. 107). The three panel Court was unanimous in its ruling, sending a strong message that individuals in public settings lack a strong legal foundation to argue they can be insulated from learning about Indigenous perspectives.
If you have any questions about this article, please contact Scott McCann or Rod Sieg.
[1] Servatius v Alberni School District No 70, [2020] BCJ No 17
