S.L. et al. v. Commission scolaire des Chênes et al., (2012) 426 N.R. 352 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 18, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2012), 426 N.R. 352 (SCC);2012 SCC 7;426 NR 352;[2012] 1 SCR 235

S.L. v. Comm. scolaire des Chênes (2012), 426 N.R. 352 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.R. TBEd. FE.022

S.L. and D.J. (appellants) v. Commission scolaire des Chênes and Attorney General of Quebec (respondents) and Christian Legal Fellowship, Canadian Civil Liberties Association, Coalition pour la liberté en éducation, Evangelical Fellowship of Canada, Regroupement Chrétien pour le droit parental en éducation, Canadian Council of Christian Charities, Fédération des commissions scolaires du Québec and Canadian Catholic School Trustees' Association (interveners)

(33678; 2012 SCC 7; 2012 CSC 7)

Indexed As: S.L. et al. v. Commission scolaire des Chênes et al.

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

February 17, 2012.

Summary:

The applicants were parents of school-aged children. School-aged children were obligated to take the Ethics and Religious Culture (ERC) course provided by the respondent school board. The applicants sincerely believed that they had an obligation to pass on the precepts of the Catholic religion to their children. They asked the school board to exempt their children to take the ERC course. The school board refused. The applicants brought a motion for a declaratory judgment to the effect that the ERC program infringed their and their children's right to freedom of conscience and religion protected by s. 2(a) of the Canadian Charter of Rights and Freedoms and by s. 3 of the Quebec Charter of human rights and freedoms. The applicants also moved for the judicial review of the school board's decision.

The Quebec Superior Court, in a decision reported [2009] R.J.Q. 2398; 2009 QCCS 3875, dismissed the motions. The applicants appealed as of right against the judgment dismissing their motion for a declaratory judgment. They applied for leave to appeal against the decision dismissing their motion for judicial review. The school board and the Attorney General of Quebec, moved to dismiss the appeal as of right. They also contested the application for leave to appeal.

The Quebec Court of Appeal, in decisions reported 2010 QCCA 346; 2010 CarswellQue 1362; 2010 QCCA 348; and 2010 QCCA 349, allowed the motions to dismiss the appeal as of right, dismissed that appeal and dismissed the motions for leave to appeal. The applicants appealed.

The Supreme Court of Canada dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 303

Freedom of conscience and religion - General - Scope of right - The Supreme Court of Canada stated that "in the modern Canadian political system, the state in principle takes a position of neutrality. And it is barred from enacting private legislation that favours one religion over another [...] In a diverse country like Canada, such a position has become essential to preserving the constitutional freedom to believe or not believe and to express one's beliefs [...] Under the constitutional principles governing state action, the state has neither an obligation to promote religious faith nor a right to discourage religious faith in its public education system. Only such true neutrality is in keeping with the secularism of the state" - See paragraphs 26 to 32, 53 and 54.

Civil Rights - Topic 360

Freedom of conscience and religion - Exercise of - Evidence and proof - The Supreme Court of Canada held as follows: "...when considering an infringement of freedom of religion, the question is not whether the person sincerely believes that a religious practice or belief has been infringed, but whether a religious practice or belief exists that has been infringed. The subjective part of the analysis is limited to establishing that there is a sincere belief that has a nexus with religion, including the belief in an obligation to conform to a religious practice. As with any other right or freedom protected by the Canadian Charter and the Quebec Charter , proving the infringement requires an objective analysis of the rules, events or acts that interfere with the exercise of the freedom. To decide otherwise would allow persons to conclude themselves that their rights had been infringed and thus to supplant the courts in this role" - See paragraphs 2, 17 to 25, 49 and 50.

Civil Rights - Topic 382

Freedom of conscience and religion - Infringement of - What constitutes - The applicants were parents of school-aged children - School-aged children were obligated to take the Ethics and Religious Culture (ERC) course provided by the respondent school board - The ERC course presented the range of different religions and got children to talk about self-recognition and the common good - The applicants sincerely believed that they had an obligation to pass on the precepts of the Catholic religion to their children - They brought a court challenge, arguing that the ERC program infringed their and their children's right to freedom of conscience and religion protected by s. 2(a) of the Canadian Charter of Rights and Freedoms and by s. 3 of the Quebec Charter of human rights and freedoms - The trial judge dismissed the challenge - The Supreme Court of Canada upheld the decision, holding as follows: "Having adopted a policy of neutrality, the Quebec government cannot set up an education system that favours or hinders any one religion or a particular vision of religion. Nevertheless, it is up to the government to choose educational programs within its constitutional framework. In light of this context, I cannot conclude that exposing children to 'a comprehensive presentation of various religions without forcing the children to join them' constitutes in itself an indoctrination of students that would infringe the appellants' freedom of religion" - In addition, exposure to a variety of religious facts did not infringe freedom of conscience and religion - See paragraphs 26 to 43, 54.

Civil Rights - Topic 384

Freedom of conscience and religion - Infringement of - Governmental authority over education - [See Civil Rights - Topic 382 ].

Cases Noticed:

Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326; 121 N.R. 323; 38 Q.A.C. 253, refd to. [para. 7].

Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine (Village), [2004] 2 S.C.R. 650; 323 N.R. 1; 2004 SCC 48, refd to. [para. 10].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, consd. [para. 18].

R. v. Videoflicks et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, consd. [para. 18].

Edwards Books and Art Ltd. c. R. - see R. v. Videoflicks et al.

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks et al.

Zylberberg et al. v. Board of Education of Sudbury et al. (1988), 29 O.A.C. 23; 65 O.R.(2d) 641 (C.A.), consd. [para. 19].

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.), consd. [para. 20].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59, consd. [para. 22].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, consd. [para. 31].

Thomson Newspapers Ltd. v. Director of Investigation and Research, Combines Investigation Act et al., [1990] 1 S.C.R. 425; 106 N.R. 161; 39 O.A.C. 161, consd. [para. 31].

Chamberlain et al. v. Board of Education of School District No. 36 (Surrey), [2002] 4 S.C.R. 710; 299 N.R. 1; 175 B.C.A.C. 161; 289 W.A.C. 161; 2002 SCC 86, consd. [para. 39].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 48].

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; 2009 SCC 37, refd to. [para. 48].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 50].

B.(R.) v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

Authors and Works Noticed:

Grimm, Dieter, Conflicts Between General Laws and Religious Norms (2009), 30 Cardozo L. Rev. 2369, generally [para. 10].

Moon, Richard, Government for Religious Practice, in Law and Religious Pluralism in Canada (2008), p. 231 [para. 30].

Ogilvie, M.H., Religious Institutions and the Law in Canada (3rd Ed. 2010), pp. 26 and 30 [para. 10]; 55 to 56 [para. 11].

Quebec, Ministère de l'Éducation, du Loisir et du Sport, Establishment of an ethics and religious culture program: Providing future direction for all Quebec youth, generally [para. 16].

Quebec, Ministère de l'Éducation, du Loisir et du Sport, Ethics and Religious Culture (2008), http://collections.banq.qc.ca/ark:/ 52327/1561560, and http://collections. banq.qc.ca/ark:/52327/ 1561568, generally [para. 34].

Quebec, National Assembly, Journal des débats, 2nd Sess., 35th Leg., March 26, 1997, pp. 5993 [para. 13]; 5994 [para. 14].

Quebec, Royal Commission of Inquiry on Education in the Province of Quebec, Report (1963), generally [para. 12].

Quebec, Task Force on the Place of Religion in Schools in Quebec, Religion in Secular Schools: A New Perspective for Quebec, Report, generally [para. 15].

Woehrling, José, La place de la religion dans les écoles publiques du Québec (2007), 41 R.J.T. 651, generally [para. 10].

Woehrling, José, Les principes régissant la place de la religion dans les écoles publiques du Québec, in Jézéquel, M., dir., Les accommodements raisonnables: quoi, comment, jusqu'où? Des outils pour tous (2007), p. 220 [para. 54].

Counsel:

Mark Phillips and Guy Pratte, for the appellants;

Bernard Jacob, René Lapointe and Mélanie Charest, for the respondent, Commission scolaire des Chênes;

Benoît Boucher, Amélie Pelletier-Desrosiers and Caroline Renaud, for the respondent, the Attorney General of Quebec;

Robert E. Reynolds and Ruth Ross, for the intervener, the Christian Legal Fellowship;

Jean-Philippe Groleau, Guy Du Pont and Léon H. Moubayed, for the intervener, the Canadian Civil Liberties Association;

Jean-Pierre Bélisle, for the intervener, Coalition pour la liberté en éducation;

Albertos Polizogopoulos, Don Hutchinson and Faye Sonier, for the intervener, the Evangelical Fellowship of Canada;

Jean-Yves Côté, for the intervener, Regroupement Chrétien pour le droit parental en éducation;

Iain T. Benson, for the interveners, the Canadian Council of Christian Charities and the Canadian Catholic School Trustees' Association;

Written submissions only by Alain Guimont, for the intervener, Fédération des commissions scolaires du Québec.

Solicitors of Record :

Borden Ladner Gervais, Montreal, Quebec, for the appellants;

Morency Société d'Avocats, Quebec, for the respondent, Commission scolaire des Chênes;

Bernard, Roy & Associés, Montreal, Quebec, for the respondent, the Attorney General of Quebec;

Robert E. Reynolds, Montreal, Quebec, for the intervener, the Christian Legal Fellowship;

Davies Ward Phillips & Vineberg, Montreal, Quebec, for the intervener, the Canadian Civil Liberties Association;

Jean-Pierre Bélisle, Saint-Joseph-du-Lac, Quebec, for the intervener, Coalition pour la liberté en éducation;

Vincent Dagenais Gibson, Ottawa, Ontario, for the intervener, the Evangelical Fellowship of Canada;

Côté Avocats Inc., Saint-Julie, Quebec, for the intervener, Regroupement Chrétien pour le droit parental en éducation;

Miller Thomson, Toronto, Ontario, for the interveners, the Canadian Council of Christian Charities and the Canadian Catholic School Trustees' Association;

Guimont, Tremblay, avocats, Quebec, for the intervener, Fédération des commissions scolaires du Québec.

This appeal was heard on May 18, 2011, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. The following decision of the Supreme Court was delivered in both official languages on February 17, 2012, and the following reasons were filed:

Deschamps, J. (McLachlin, C.J.C., Binnie, Abella, Charron, Rothstein and Cromwell, JJ., concurring) - see paragraphs 1 to 43;

LeBel, J. (Fish, J., concurring), concurring - see paragraphs 44 to 59.