February 2020 Charity & NFP Law Update

Jennifer M. Leddy

BC Court Finds Indigenous Ceremonies in School Did Not Violate Freedom of Religion

The Supreme Court of British Columbia released its decision in Servatius v Alberni School District No. 70 on January 8, 2020, concerning freedom of religion under the Canadian Charter of Rights and Freedoms (“Charter”). Candice Servatius, an evangelical Christian, claimed that she and her children’s freedom of religion under section 2(a) of the Charter had been infringed when an Indigenous Elder visited a public elementary school (“School”) and demonstrated smudging, and when an Indigenous prayer was said during an Indigenous dance performance held at a School assembly. She argued that their belief system prohibited them from participating in any “religious, spiritual or supernatural ceremonies” outside of their faith, and that the smudging and prayer constituted “compelled participation in state-sponsored religious exercises.”

The court first considered the historical background of the residential schools that played a central role in the federal government’s assimilationist policy. Viewed in this context, the smudging and hoop dancing allowed Indigenous students to “see themselves and their culture reflected” in the school they attended, helped to make the school a “culturally safe space,” and increased the knowledge and understanding of Indigenous culture and history.

With regard to freedom of religion, the court indicated that the purpose of section 2(a) is to “prevent interference with profoundly held personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being.” Pursuant to Syndicat Northcrest v Amselem, Ms. Servatius had the burden of proving infringement by proving that (1) she or her children have a sincere belief that has a nexus with religion; and (2) the impugned events interfered, in a manner that was more than trivial or insubstantial, with their ability to act in accordance with their religious beliefs. It added that one method of establishing a section 2(a) infringement is to show that “state neutrality” with respect to religion had been breached.

As it was conceded that Ms. Servatius’ beliefs were sincere, the court considered whether she had proven objectively that the smudging or prayer interfered with her or her children’s ability to act in accordance with their religious beliefs. With regard to state neutrality, the court found that the defendant School District had not professed, adopted, or favoured Indigenous beliefs to the exclusion of all others. While schools must be neutral public spaces “free from coercion, pressure, and judgment on the part of public authorities in matters of spirituality,” the court found that this did not mean the “homogenization” of that space. It concluded that the School District’s intent was not to profess, adopt, or favour Indigenous spirituality, but to teach about the culture and to encourage the inclusion of Indigenous students.

In response to Ms. Servatius’ argument that her children were “compelled to participate” in the Indigenous practices and affirm their beliefs, the court indicated that teaching about other people’s spiritual beliefs and practices does not compel participation or affirmation of those beliefs. While mere presence before a spiritual practice has been found in other cases to be sufficient grounds to establish a non-trivial interference, the court distinguished this case on the basis that the practices at the School were teaching demonstrations, stating that “[i]n the context of children in school being taught about beliefs, […] mere presence does not constitute proof on an objective basis of interference with the ability to act in accordance with religious beliefs.” The court gave other examples that would not be problematic, such as a visit by students to a mosque to learn about Islam or a Catholic priest bringing candles and incense to school to acquaint students with Church rites. On the other hand, it would be problematic if the students were required to pray at the mosque or participate in a specific Catholic rite. The court therefore could not find proof on an objective basis that Ms. Servatius or her children’s beliefs had been interfered with, and dismissed her claim.

This case confirms that the teaching and demonstration of spiritual beliefs in schools is generally not a violation of freedom of religion under the Charter. In an educational environment, more than a student’s mere presence before a demonstration or explanation of spiritual beliefs would be required to establish a violation.

Read the February 2020 Issue

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-  CRA Charities and Information Sessions and Webinars
CAGP Provides Update on Gifts of Life Insurance in B.C.
Legislation Update 
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Tax Court of Canada Rejects Charitable Donation Scheme… Again
Ontario Court Rules on Trusts in Scouts Land Ownership Dispute
One Incident of Sexual Harassment Justified Termination for Cause
BC Court Finds Indigenous Ceremonies in School Did Not Violate Freedom of Religion
Ministry of Health Revokes its Hospital Naming Directive
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Anti-Terrorism/Money Laundering Update 
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Theresa L.M. Man Named to CRA Technical Issues Working Group