Legal News

Smudging and the Charter: School District successfully defends Charter claim

For students in a public school, is observing a First Nations smudging ceremony and the performance of a hoop dance in which the performer says a prayer:

(a) a legitimate educational experience directed at enhancing their understanding of a culture and worldview that may be different from their own?; or

(b) an infringement of the students’ right to freedom of religion pursuant to section 2(a) of the Canadian Charter of Rights and Freedoms?

That was the question the BC Supreme Court had to resolve in the high profile case of Servatius v. Alberni School District No. 70 in which Harris & Company LLP successfully acted for the District.[1]

As part of an effort to acquaint students with Indigenous culture and to promote a sense of belonging in Indigenous children, a Port Alberni elementary school invited a Nuu-chah-nulth Elder to visit and demonstrate the practice of smudging. A few months later, an assembly at the school witnessed an Indigenous dance performance, in the midst of which the dancer said a prayer.

The petitioner in the case was an evangelical Christian parent of a nine-year-old daughter and seven-year-old son who were enrolled in the school and witnessed these demonstrations of Indigenous culture and spirituality. The Petitioner argued that the exposure of her children to these activities amounted to “religious indoctrination” by the School District and thus breached their freedom of religion under the Charter.

The Court did not agree. Instead, the Court accepted the School District’s submissions, chose answer “(a)” to the question above, and dismissed the petitioner’s claim in its entirety.

In his reasons for judgment, Mr. Justice Thompson took judicial notice of First Nations history, particularly in respect of the history of the residential school system and its consequential impact on First Nations and their relationship with Canadian institutions. He recognized that judicial analysis of the events at issue must be informed by and viewed through that historical lens. Justice Thompson also undertook an extensive review of the evolution of the new British Columbia curriculum against that historical backdrop and the intent of its architects to address previous shortfalls with respect to incorporating First Nations worldviews and perspectives in the provincial curriculum.

On the substantive issues, Justice Thompson made a number of findings of fact which led him to conclude that the petitioner’s Charter rights had not been infringed. Specifically, he found that the Elder described the smudging tradition and beliefs connected with it to the students and smudged the perimeter walls and doorways, making use of the sage burning in an abalone shell and an eagle feather. Importantly, Thompson J. found that at no time were students, their desks, or their belongings smudged. Rather, in each classroom, the students’ participation was limited to learning, observing, listening, and taking in the smell of the burning sage.

With respect to the hoop dance performance at the assembly, Justice Thompson likewise found that students were not participating in a spiritual or religious practice but merely observing one.

The petitioner had the burden of proving an infringement of s. 2(a) of the Charter and in order to do so, she was required to prove that (1) she or her children had a sincere belief that has a nexus with religion; and (2) the impugned events interfered — in a manner that was more than trivial or insubstantial — with their ability to act in accordance with this religious belief.

The crux of the case rested on the second part of the test which requires proof on an objective basis, not merely an assertion of an interference by the petitioner. One way in which a non-trivial interference could occur is through a breach of the state’s duty of neutrality (i.e. a duty of secularism).[2]

A breach of state neutrality can be established by proving that the state professed, adopted, or favoured one belief to the exclusion of all others and that the exclusion resulted in interference with the complainant’s freedom of conscience and religion.

The petitioner argued that the state (through the school) had violated its duty of religious neutrality by sponsoring a religious exercise in a public school classroom or assembly and thus infringing the s. 2(a) rights of non-believers in that religion. The petitioner relied on the line of jurisprudence found in the Supreme Court of Canada’s decision in Mouvement laïque québécois v. Saguenay (City)[3], and the Ontario Court of Appeal’s decision in Zylberberg v. Sudbury Board of Education (Director)[4]., both of which involved state-mandated Christian prayers in public spaces and were found to be breaches of the state’s duty of religious neutrality. Justice Thompson rejected these arguments, noting among other things that the state-mandated prayer in those cases was not a demonstration but a daily religious practice.

Justice Thompson accepted the School District’s argument that the case of S.L. v. Commission scolaire des Chênes[5] was more pertinent in this case. That was a case in which Quebec parents approached their school board and sought exemption of their children from a course of teaching about different religions, arguing that it infringed freedoms of conscience and religion. The majority of the Court concluded that the parents had not made the case that the new course interfered with their ability pass on their faith to their children. Justice Thompson in this case specifically relied on the following excerpt from S.L.:

[40] Parents are free to pass their personal beliefs on to their children if they so wish. However, the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society. The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligations with regard to public education. Although such exposure can be a source of friction, it does not in itself constitute an infringement of s. 2(a) of the Canadian Charter…

Justice Thompson concluded that the smudging and hoop dancing demonstrations in this case were in no way — either by design or in their execution — an expression of the School District’s beliefs or an expression of religious favouritism. The School District had not professed, adopted, or favoured one belief to the exclusion of all others. Rather, the organization of these events reflected a gathering momentum to incorporate the teaching of Indigenous worldviews and perspectives. He highlighted the existing state of the law that the state’s duty of neutrality is to be considered not only in a manner consistent with the protective objectives of the Charter, but also with a view to promoting and enhancing diversity in Canada.

The case represents a significant vote of confidence in the legitimacy of public school districts implementing curriculum and educational practices that include direct exposure to different beliefs and worldviews, particularly in the context of First Nations, as part of a broad educational experience for their students.

If you have any questions about this case, please contact Lindsie Thomson.

[1] 2020 BCSC 15.

[2] If a non-trivial interference with religious beliefs is established, the next question is whether the limitation on freedom is justified under s. 1 of the Charter. The Court did not have to undertake this analysis in this case because the petitioner failed to clear the first hurdle of the test.

[3] 2015 SCC 16.

[4] (1988), 65 O.R. (2d) 641 (C.A.)

[5] 2012 SCC 7