Nancy Pynch-Worthylake
Superintendant
South Shore Regional School Board
Dear Ms. Pynch-Worthylake,
According to a recent article in The Chronicle Herald (“School board going to higher power”, May 3, 12), you are currently seeking the opinion of a human rights expert regarding student William Swinimer’s T-shirt. Mr. Swinimer’s T-shirt reads: “Life is wasted without Jesus.”
As Canadian lawyers who specialize in section 2(a) of the Canadian Charter of Rights and Freedoms (Charter), notably the rights to freedom of religion and conscience, we would like to offer you our assessment of this situation. We have both appeared before various bodies, including the Supreme Court of Canada, to speak to the issues of religious freedom and expression.
Additionally, The Evangelical Fellowship of Canada (EFC), the national association of evangelical Christians, has appeared before human rights tribunals, appellate courts and the Supreme Court of Canada on numerous occasions to share our expertise both in this area and other areas of law. Please see Schedule “A” for the history of our engagement at the higher courts.
Schools to be a Welcoming Environment
Many school boards and principals seem to believe that there are restrictions on any and all expressions of religion in public schools. This is false. Far from religion and religious practices being excluded from public schools, schools are required to create a welcoming atmosphere for all.
In 1997, the Supreme Court of Canada ruled that school boards have a duty to ensure that the public education system is a welcoming and positive school environment for all students. The court went on to require that school boards be “ever vigilant” of anything that might interfere with that duty. (Ross v. Moncton District School Board).
Further, discrimination on the basis of religion and creed is also expressly forbidden under the Nova Scotia Human Rights Act and “human rights codes must be interpreted and applied in a manner that respects the broad protection granted to religious freedom under the Charter.” (Reference re: Same-Sex
Marriage)
The challenge in a plural society is to respect diversity, including religious diversity. The public education system is made up of students, parents, teachers and school officials from a wide variety of cultural and religious backgrounds. Rather than being a religion-free zone, as mentioned above, the public school system is to be welcoming to all, a religion-inclusive zone. Recognition of pluralism includes and requires respect for the worldview of religious and other communities represented in the public education system.
Freedom of Religion and Conscience
The constitutional guarantee of freedom of conscience and religion extends to all students and parents and teachers regardless of their ideological or religious beliefs. The education system, including the school board, is responsible for ensuring that all are respected.
The protection of freedom of religion afforded by s. 2(a) of the Charter is broad and jealously guarded in Canadian jurisprudence. (Reference re: Same-Sex Marriage). Religious freedom in Canada means “the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest belief by worship and practice or by teaching and dissemination.” (Big M. Drug Mart)
Further, one Supreme Court Justice recently noted, on a point where there was consensus of the court, that freedom of religion “includes a right to manifest one’s belief or lack of belief, or to express disagreement with the beliefs of others.” (Alberta v. Hutterian Brethren of Wilson Colony)
Separation of Church and State
Some school boards mistakenly believe that the doctrine of the separation of church and state requires that religious expression be excluded from public schools. However, this is incorrect and it is likely informed by our exposure to American legal dramas. This doctrine is an American doctrine and it does not apply in Canada. Rather, in Canada, we have witnessed a co-operation between church and state, from which reasonable accommodation and mutual respect has flowed.
Freedom of Expression and its Inherent Limits
According to The Chronicle Herald article, the question you are putting to your human rights expert is as follows:
If a specific message communicates a personal belief that should not be reasonably considered offensive to others or whether the message could be reasonably interpreted to be disrespectful of others’ beliefs or a violation of others’ rights.
Thankfully, in Canada, there does not exist a right to “not be offended”. Canadians are free to express themselves, their beliefs, their values, whether they are reasonable, ridiculous or offensive. Additionally, feeling offended by the opinions of others is not a violation of any known Canadian or international human right.
As we have held in the past, and presented before the Supreme Court of Canada, we hold that the state, in this case by virtue of the school and board, should be limited in its power to monitor or censure expression and debate. As stated by the Court in one decision, “the guarantee of free expression protects all content of expression but may not protect some forms of expression, for example, violence and threats of violence.” (Canada v. Taylor). The state protects the freedom of expression; it does not grant the freedom of expression. Fundamental freedoms such as these are inherently the peoples’.
As alluded to above, we readily acknowledge that no human or Charter right is without limits. However, the courts have established high and specific standards where human rights of Canadians can be violated by the state.
For example, free expression is limited in the Criminal Code which prohibits the promotion of genocide, incitement of hatred, fraud, sedition and communicating for the purpose of prostitution. Other laws or actions by the state which seek to limit some forms of expression have a high standard to meet: it must demonstrate that such a violation of a Charter-guaranteed right can be “demonstrably justified in a free and democratic society”. And our Supreme Court has been clear that we should view freedom of expression “firstly as the means of promoting the ‘marketplace of ideas’ essential to a vibrant society, and secondly as being indispensable to the proper functioning of a democratic government.” (Canada v. Taylor).
Frankly, a statement as vague, unspecific and obscure as “Life is wasted without Jesus”, is not captured by any categorical limits on free expression. It is lamentable that a student has faced 12 days of school suspension for wearing such a t-shirt and that school officials have expended valuable resources on managing this situation.
Students and school officials communicate in a variety of means their values and beliefs, by means of their clothing or campaign bracelets, the conversation they have, the comments made in class, or their involvement in certain student clubs and activities over others. It is obvious that not all values or beliefs will be agreed upon by every person connected to the school. To hope to achieve a homogenous utopia where no one is ever offended is unrealistic and undesirable.
In a country that values its diversity with a Charter that enshrines its commitment to multiculturalism, we need to acknowledge that all Canadians, teens and adults alike, can co-exist peacefully in a society of diverging opinions and beliefs. Where peace is broken and harmful communications, such as the incitement of hatred or genocide, take place, laws exist to capture such behaviours. Living together in pluralistic society may not always be easy, but it is worth striving for.
In closing, the Canadian Charter of Rights and Freedoms guarantees the right to freedom of religion, conscience and expression to all Canadians and that the right to debate moral or religious issues, whatever they may be, is foundational to a true and vibrant democracy.
Unless one can act in a non-harmful way in public dialogue, inspired by one’s religious beliefs, then one does not have religious freedom but only the freedom to believe. Canadian courts have, to this point, been clear that religious freedom includes the right to speak about our beliefs; to share our beliefs with others; to practice our beliefs; and, to engage in public debate and discussion from a position that is informed by those beliefs.
We therefore urge you to publicly communicate that your school board will permit lawful and reasonable expression of religious belief and that you will refrain from penalizing any students who exercise their Charter rights to freedom of religion and expression.
We look forward to your prompt reply.
Sincerely,
Faye Sonier, LL.B.
Legal Counsel
Don Hutchinson, B.A., J.D.
Vice-President, General Legal Counsel