Another area of controversy under section 2(a) has been with respect to religion and education. A number of issues arise: the extent to which there is room for religious instruction and practice in the public school system, the right of parents to withdraw their children from public schools for religious reasons, the extent of the state’s obligation to fund independent religious schools, and the reconciliation of freedom of religion with other Charter rights and freedoms.
The Supreme Court of Canada has not dealt directly with the issue of the role of religion in the public school system. However, two important decisions of the Ontario Court of Appeal struck down provincial laws and regulations requiring school prayer and religious education in public schools.
In Zylberberg,30the court dealt with a requirement that public schools open with religious exercises consisting of the reading of scripture or other suitable works and the repeating of the Lord’s Prayer or other suitable prayers. The regulations provided that a student could be excused from participating if a parent requested this. The province defended the legislation on the basis that there was no denial of freedom of religion, given the right to claim an exemption. The majority of the Court of Appeal disagreed. It found that the requirement of prayers and scripture reading violated the rights of both Christians and non-Christians by compelling religious observance. The right to claim an exemption did not negate the coercive quality of the regime, for the reality was that members of minority religions or those opposed to the practices felt pressured to conform. Indeed, the exemption provisions were described as imposing a penalty on religious minorities, "stigma-tizing them as non-conforming."31A similar result was reached in a subsequent case involving religious education.32Ontario legislation and regulations required two
one-half-hour periods of religious instruction in each week in public schools, although, again, children could be exempted. While the regulations provided that issues of a controversial or sectarian nature were to be avoided, the curriculum in Elgin County was delivered by members of a local Bible club and clergy, with the result that the instruction had a strong evangelical Christian tone. Again, the Ontario Court of Appeal concluded that the curriculum was a form of religious indoctrination, which placed a burden on both religious minorities and nonobservers. The court held that, while teaching children about religious perspectives is permissible under section 2(a), indoctrination is not.
In SL v Commission scolaire des Chênes,33the Supreme Court held that Roman Catholic parents were not entitled to insist that their children be exempted from attending a non-sectarian course on ethics and religious culture. The Court cited with apparent approval the Ontario school prayer and religious instruction cases discussed above. Nevertheless, the Court distinguished those cases on the ground that here, the parents had failed to establish that the ethics and religious culture course, which exposed children to a range of different religions, infringed their religious freedom.
It might be noted that the result of these cases does not necessarily draw a strict line between church and state. Unlike the language of the First Amendment to the American constitution, which guarantees the free exercise of religion and prohibits the establishment of religion, section 2(a) of the Charter does not prohibit government support for religion or require state neutrality with respect to religion.
When school policy conflicts with the freedom of religion, it is not always because the school has introduced religious elements into its curriculum. Instead, school policies may prevent students from freely practising their religion while at school. In Multani v Commission scolaire Marguerite-Bourgeoys,34the Supreme Court dealt with a Sikh student who had been prohibited from bringing his kirpan to school. A kirpan is a religious object which resembles a dagger and is made of metal. The prohibition on the kirpan was imposed after the school’s governing board refused to ratify an agreement reached with the student and the school board, which would have allowed the student to bring the kirpan to school provided that it was kept in its sheath, sewn
securely into a sturdy cloth envelope, and worn...