Bonitto v. Halifax Regional School Board, 2015 NSCA 80

Judge:Fichaud, Beveridge, Bryson, Scanlan and Van den Eynden, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:August 26, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSCA 80;(2015), 364 N.S.R.(2d) 247 (CA)
 
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Bonitto v. Halifax School Bd. (2015), 364 N.S.R.(2d) 247 (CA);

    1146 A.P.R. 247

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Temp. Cite: [2015] N.S.R.(2d) TBEd. AU.030

Sean Bonitto (appellant) v. Halifax Regional School Board (respondent)

(CA 431358; 2015 NSCA 80)

Indexed As: Bonitto v. Halifax Regional School Board

Nova Scotia Court of Appeal

Fichaud, Beveridge, Bryson, Scanlan and Van den Eynden, JJ.A.

August 26, 2015.

Summary:

Bonitto was a fundamentalist Christian who distributed gospel tracts to students and others at a public school that taught 4-15 year old children. The school's students came from families with over 50 languages and cultures and various religious denominations. One-quarter of the students were Muslim. The message Bonitto's religion compelled him to convey was that anyone who did not accept Jesus Christ as their Lord and Saviour would burn in hell. Pursuant to the school board's Religious Education in Schools Policy adopted under the authority of the Education Act, no materials could be distributed at a school without the principal's discretionary approval. Further, any religious instruction on school premises was permitted only outside of school hours. The principal declined approval to distribute the religious materials and ordered Bonitto to desist. Other religious groups had sought, and were denied, similar approval. The Policy provided for religious neutrality in schools. Bonitto claimed an infringement of his Charter rights to freedom of religion and freedom of expression (ss. 2(a) and (b)).

The Nova Scotia Supreme Court, in a judgment reported 2014 NSSC 311, held that refusing to allow Bonitto to distribute gospel tracts to students and others on school property did not infringe Bonitto's Charter rights to freedom of religion or freedom of expression. Bonitto appealed on the ground that his s. 2(a) Charter right to freedom of religion was infringed.

The Nova Scotia Court of Appeal dismissed the appeal. The principal's exercise of his discretion under lawful statutory authority engaged Bonitto's right to freedom of religion, but the exercise of his discretion was reasonable where the decision proportionately balanced Charter values and the statutory objectives.

Administrative Law - Topic 8905

Boards and tribunals - Duties of - Re application of constitution or constitutional principles (incl. Charter) - [See Civil Rights - Topic 385 ].

Civil Rights - Topic 303

Freedom of conscience and religion - General - Scope of right - [See Civil Rights - Topic 385 ].

Civil Rights - Topic 385

Freedom of conscience and religion - Infringement of - Schools - Religious education (incl. codes of conduct) - Bonitto was a fundamentalist Christian who distributed gospel tracts to students and others at a public school that taught 4-15 year old children - The school's students came from families with over 50 languages and cultures and various religious denominations - One-quarter of the students were Muslim - The message Bonitto's religion compelled him to convey was that anyone who did not accept Jesus Christ as their Lord and Saviour would burn in hell - Pursuant to the school board's Religious Education in Schools Policy adopted under the authority of the Education Act, no materials could be distributed at a school without the principal's discretionary approval - Further, any religious instruction on school premises was permitted only outside of school hours - The principal declined approval to distribute the religious materials and ordered Bonitto to desist - Other religious groups had sought, and were denied, similar approval - The Policy provided for religious neutrality in schools - Bonitto claimed that the principal's decision infringed his s. 2(a) Charter right to freedom of religion - The Policy itself was not constitutionally challenged - The trial judge held that refusing to allow Bonitto to distribute gospel tracts to students and others on school property did not infringe his Charter right to freedom of religion - The Nova Scotia Court of Appeal dismissed Bonitto's appeal - Whether the administrative decision violated the Charter was assessed under the Doré/ Loyola framework - The principal's exercise of his discretion under lawful statutory authority engaged Bonitto's right to freedom of religion, but the exercise of his discretion was reasonable where the decision proportionately balanced Charter values and the statutory objectives (religious neutrality in schools, inclusion in the school community, and student safety) - The court held that "the principal's decision ... was proportionate under Doré and Loyola and occupied the range of reasonably acceptable outcomes under Dunsmuir".

Civil Rights - Topic 8317

Canadian Charter of Rights and Freedoms - General - Application - Administrative decisions and Charter protection - [See Civil Rights - Topic 385 ].

Cases Noticed:

Doré v. Barreau du Québec, [2012] 1 S.C.R. 395; 428 N.R. 146, appld. [para. 24].

Loyola High School v. Quebec (Attorney General) (2015), 468 N.R. 323; 2015 SCC 12, appld. [para. 24].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 26].

R. v. R.E.W. (2011), 298 N.S.R.(2d) 154; 945 A.P.R. 154; 2011 NSCA 18, refd to. [para. 26].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 38].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 38].

Montreal (City) v. Canadian Broadcasting Corp. and Montreal Port Authority, [2010] 1 S.C.R. 427; 400 N.R. 279, refd to. [para. 49].

Halifax (Regional Municipality) v. Canada (Minister of Public Works and Government Services), [2012] 2 S.C.R. 108; 431 N.R. 10, refd to. [para. 49].

Montreal (City) v. 2952-1366 Québec Inc., [2005] 3 S.C.R. 141; 340 N.R. 305, refd to. [para. 52].

Committee for the Commonwealth of Canada et al. v. Canada, [1991] 1 S.C.R. 139; 120 N.R. 241, refd to. [para. 52].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 64].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59, refd to. [para. 64].

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1, refd to. [para. 64].

S.L. et al. v. Commission scolaire des Chênes et al., [2012] 1 S.C.R. 235; 426 N.R. 352, refd to. [para. 64].

Whatcott v. Human Rights Tribunal (Sask.) et al., [2013] 1 S.C.R. 467; 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75, refd to. [para. 64].

Canadian Federation of Students (B.C.) et al. v. Greater Vancouver Transportation Authority et al., [2009] 2 S.C.R. 295; 389 N.R. 98; 272 B.C.A.C. 29; 459 W.A.C. 29, refd to. [para. 72].

Zylberberg et al. v. Sudbury Board of Education (1988), 29 O.A.C. 23; 65 O.R.(2d) 641 (C.A.), refd to. [para. 77].

Mouvement laïque québécois et al. v. Saguenay (City) (2015), 470 N.R. 1; 2015 SCC 16, refd to. [para. 78].

Corporation of the Canadian Civil Liberties Association et al. v. Ontario (Minister of Education) and Board of Education of Elgin County (1990), 37 O.A.C. 93; 71 O.R.(2d) 341 (C.A.), refd to. [para. 79].

Statutes Noticed:

Education Act, S.N.S. 1995-96, c. 1, sect. 2 [para. 31].

Counsel:

Appellant, on his own behalf;

Sheree L. Conlon and Jennifer L. Taylor, for the respondent.

This appeal was heard on June 16, 2015, at Halifax, N.S., before Fichaud, Beveridge, Bryson, Scanlan and Van den Eynden, JJ.A, of the Nova Scotia Court of Appeal.

On August 26, 2015, Fichaud, J.A., delivered the following judgment for the Court of Appeal.

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