Smudging ceremony in school did not violate freedom of religion: B.C. Supreme Court

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An Indigenous smudging ceremony conducted in a Vancouver Island elementary school was a commendable effort to teach students about Indigenous beliefs and did not violate Charter rights to religious freedom, the B.C. Supreme Court has found.

Candice Servatius, an evangelical Christian from Port Alberni, B.C., argued that her two children experienced mental distress when they were exposed to Indigenous ceremonies in 2015. She told the court that because of their religious beliefs, her family cannot participate in “religious, spiritual or supernatural ceremonies” of any kind that are not part of their faith.

But Justice Douglas Thompson found the smudging ceremony in classrooms, as well as a performance by an Indigenous hoop dancer at a school assembly, only exposed students to Indigenous culture and helped Indigenous students feel like they belong in the school system.

“These are admirable and admissible efforts to teach, in a memorable way, about Indigenous beliefs,” he wrote in the judgment released Wednesday. “It is surely proper, and advisable in light of the historical circumstances, that the school district organize such events.”

Justice Thompson found the efforts to teach Indigenous culture in the schools is supported by the findings of the Truth and Reconciliation Commission of Canada, which concluded that the Indian residential-school system, designed to assimilate Indigenous children, promoted “cultural genocide” and students experienced physical, sexual and psychological abuse.

That legacy continues to produce poor outcomes for Indigenous students currently in the Canadian school system.

Thirty per cent of the students in the Port Alberni school district, where Ms. Servatius’s children attended John Howitt Elementary School, are Indigenous. Those students are roughly half as likely to graduate as their non-Indigenous peers.

The Port Alberni school district is within the traditional territory of the Nuu-chah-nulth, and the tribal council acted as an intervenor in the case.

Justice Thompson rejected Ms. Servatius’s request for a court order prohibiting the school district from facilitating or allowing religious practices including “religious or spiritual rituals, ‘cleansings,’ ceremonies and prayer.”

Judith Sayers, president of the Nuu-chah-nulth Tribal Council, said the court ruling is a huge relief.

“The implications of this were really massive, and that’s why we were really worried about it,” she said. She said the tribal council has worked with the school district for years to help foster a better understanding of Nuu-chah-nulth culture in schools and help their own students feel safe. “They were asking for a really broad prohibition. And I think that would have affected all children in British Columbia.”

Jay Cameron, counsel for Ms. Servatius and the litigation manager at the Justice Centre for Constitutional Freedoms, said his client is disappointed and considering an appeal.

“We think that the judge misapprehended the facts on a number of points,” he said. “The question is, ‘Does what happened in the classroom infringe the Charter?' And the answer to that question, we believe, is a resounding ‘yes,’ ” he said. “We respectfully disagree with the trial judge.”

Justice Thompson, in his 47-page decision, found the testimony of Ms. Servatius’s daughter, who claimed she was forced to participate in the smudging ceremony against her will, was not accurate or reliable.

He accepted as fact the version of events described by the classroom teachers and the Nuu-chah-nulth elder Margaret Eaton, who demonstrated the smudging ceremony. Ms. Eaton was invited into three classrooms at the school where, she told the court, she spoke to the students about her background and about the items she brought with her: an abalone shell, sage and an eagle feather. She lit the sage in the abalone shell and it created smoke. She then walked the perimeter of each classroom, along the walls, fanning smoke with the eagle feather onto the walls. She stopped at each door and fanned smoke on the frame of each door four times. She said there was no smudging or cleansing of students or their belongings.

In his ruling, Justice Thompson wrote that students are entitled to a public education that is neutral on religious faiths, but observed some incongruity in the complaint that teaching Indigenous culture could equate to indoctrination in the Canadian school system.

“In historical context, there is some irony in the petitioner’s stated position that the events at [the elementary school] amounted to ‘religious indoctrination.’ However, I agree with the proposition that regardless of the role played by the churches in the residential schools calamity and the pressing need for reconciliation, the petitioner is entitled to send her children to public schools that comply with the secular duty of neutrality," he wrote.

He found the school district did not violate that duty because there was no expression of religious favouritism in the smudging or hoop-dancing demonstrations. “Rather, the organization of these events reflected a gathering momentum to incorporate the teaching of Indigenous worldviews and perspectives.”