A public school in Toronto thinks a clergyman can be invited to conduct Islamic prayers at lunchtime on school grounds. As a school trustee explains it, “What we’re doing is what we should be doing as a school board and that is accommodating students’ needs no matter what their religion is.”
A public school in Chester Basin, N.S., thinks a student can be prohibited from wearing a T-shirt with a Christian message on school grounds. As school trustees explain it, “It is expected that students will not wear clothing with messages that may offend others’ beliefs, race, religion, culture or lifestyle.”
Does Canadian law really get such a failing grade?
Whether religious expression is permitted in schools turns on the meaning given to “freedom of religion” and “freedom of expression.” The confusion over this question calls for a review class on the Canadian Charter of Rights and Freedoms.
Beginning in the mid-1980s, the courts determined that public schools cannot teach religion in a doctrinal way. While they can, and often do, offer history and social-studies classes that survey world religions, the mandatory separation of church and state prohibits them from teaching religion as it is taught to adherents of that religion – i.e., as a matter of belief rather than general knowledge.
In another 1980s case, the courts ruled that public schools cannot conduct religious exercises that favour one denomination. While they can, and often do, have inspirational or spiritual readings at the beginning of the day, the constitutional protection of religious freedom prohibits them from holding prayer sessions in the same way as adherents of a particular religion.
In a key part of these rulings, it was found that even voluntary religious sessions violate the Charter. The fact that a student could typically opt out or seek an exemption from the prayers or classes was not enough. As the Ontario Court of Appeal put it, having to seek an exemption from religious exercises itself “compels students and parents to make a religious statement.”
While the courts have not had an opportunity to examine the current Toronto controversy over communal prayers held at lunch hour in the school cafeteria, it seems clear that the practice is constitutionally offside. The same logic that denied school boards the power to hold opt-out religious sessions should deny them the power to hold opt-in sessions.
A state agency simply cannot tacitly endorse denominational prayer, especially in a school environment. As the court put it, what appears voluntary to adults may in effect be mandatory for schoolchildren: “The peer pressure and the classroom norms to which children are acutely sensitive, are real and pervasive and operate to compel … religious practices.”
Much as it should be clear that a public school’s power to endorse religion is constitutionally limited, it should be equally clear that a student’s right to endorse religion is constitutionally protected.
The combination of freedom of religion and freedom of speech gives wide latitude for Canadians to express their faith. As the Supreme Court of Canada said in a 2002 ruling, religion is too integral an aspect of people’s lives to expect them to stay silent on the subject. And this is true no matter how harsh the expression appears to the majority of listeners. As the Supreme Court again noted in the case of right-wing New Brunswick teacher Malcolm Ross, “It is not the role of the court to decide what any particular religion believes.”
What’s true for teachers is true for everyone else. The courts have repeatedly held that although schools can take reasonable measures for maintaining discipline, pupils do not leave their Charter rights at the schoolhouse door. This includes freedom of speech.
Religious expression, like other speech, is protected unless it collides with Canada’s hate laws and human rights codes. Properly understood, however, these laws apply only in the most egregious circumstances. In the notorious case of hatemongering Alberta teacher James Keegstra, it was made clear that to be illegal, the speech must be a form of “extreme emotion that belies reason.” It must, in human rights terms, utterly poison the educational atmosphere for an identifiable group. Mere disagreement, even impassioned disagreement, doesn’t count.
Needless to say, religious faiths differ with each other. While it is common to think that the world’s religions share the same basic beliefs, the fact is they do not all agree. To use the example of the Nova Scotia T-shirt, a Christian may feel that life is wasted without Jesus; a Hindu will likely not feel the same. If all faiths agreed, the Pope would have to eat kosher.
Professing one’s faith – whether by saying “Jesus saves,” “There is no God but Allah,” “Hare Krishna,” etc. – is not to denigrate another faith in any legal sense. Like all Canadians, pupils in school are allowed to say these things with as much fervour as they like.
In short, Canadian law generally restricts school authorities from promoting religion, even passively by holding voluntary classes and prayers. It generally does not restrict students from promoting religion, even actively by wearing it on their sleeve or chest. That’s a lesson school boards and principals need to study.
Ed Morgan is a professor of law at the University of Toronto.