THE SCHOOL AND RELIGIOUS DIVERSITY IN CANADA AND QUÉBEC

Micheline Milot
Department of Sociology
Université du Québec à Montréal

1. The Canadian Legal Framework
2. Political Governance
3. Ancillary Notes

In this article, I examine the relationship between the school and religions in the context of the challenges it reveals for democracies in the management of diversity. This includes the legal and political dimensions of the challenges as well as the concept of citizenship which determines its management. I approach this question in the manner of a problematique capable of defining certain axis or lines of inquiry for a program of comparative research between Canada and France. I focus on the impact of the judicial system on political governance and the concept of citizenship. I begin by painting a broad picture of the Canadian situation with respect to the explicit legal framework as it relates to religious diversity. I then develop some examples capable of leading to comparative problematiques on the political governance of religious diversity, particularly in the educational milieu.

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THE CANADIAN LEGAL FRAMEWORK

Since Confederation in 1867, education has been under provincial jurisdiction. However, the Canadian Charter of Rights and Freedoms is an integral part of the 1982 federal Constitution and normative for the entire federation. Among other things, this means that any laws adopted by the provincial legislatures (as with those adopted by the Canadian Parliament) must comply with the Charter.

Contrary to American or French law, the state's duty of neutrality is not explicitly mentioned in the Constitution. There is no mention of separation or laïcité.¹ In accordance with common legal tradition, the “duty of neutrality” was established by nineteenth century jurisprudence and is closely linked to two fundamental rights: freedom of conscience and religion, and equality, which the Supreme Court of Canada has reaffirmed many times.

Even if some provinces upon entering the Canadian federation negotiated a constitutional guarantee to maintain religious education in their public school system for minority groups, these same provinces, namely Quebec and Newfoundland, are now facing growing religious diversity and have requested a revocation of these guarantees.

The rights that frame the management of diversity in order to avoid discrimination based on religion in the various institutions, including schools are:

1. The freedom of conscience and religion: This is set out in the Canadian (1982) and Quebec (1975) charters (the Quebec charter is of quasi-constitutional value to the province). This provision excludes any form of direct or indirect pressure to “conform” to dominant norms or values.

The courts (particularly R. v. Big M. Drug Mart Ltd. [1985] 1 S.C.R. 295) determined that freedom of conscience and religion in the broadest sense implies the absence of coercion and constraint, and the right to manifest one's beliefs and practices, subject to such limitations as are necessary to protect public safety, order, health, or morals, or the fundamental rights and freedoms of others. Coercion includes not only blatant forms of constraint exercised in the direct form of ordinances to act or refrain from acting under threat of penalty, but also indirect forms of control which determine or limit possibilities in the manifestations of beliefs.

2. Equality: Section 15 of the Canadian Charter (like section 10 in the Quebec Charter) guarantees the right to equality and lists grounds for which discrimination is explicitly prohibited: race, national or ethnic origin, colour, religion, sex, age and mental or physical disability (the Quebec Charter adds pregnancy, marital status, language, political beliefs and sexual orientation to the list).

Moreover, the R v. Big M. Drug Mart Ltd. [1985] 1 S.C.R. 295 landmark decision indicated that “the protection of one religion and the concomitant non-protection of others imports disparate impact destructive of the religious freedom of the collectivity,” (Justice Dickson). In other words, inequality brought on by an absence of neutrality is equivalent to denying religious freedom itself. For instance, the right to equality requires that support for all religions be the same. In the provinces that fund private denominational schools, for example, the right to equality requires that they do so without favouring any one religion.

3. The duty of reasonable accommodation: When a justified rule or regulation or an act adopted by the state, or an institution or company is indirectly discriminatory for one individual or a group of individuals, Canadian courts clearly established the duty to respect the right to accommodation.

This right can, for instance, involve exempting the individual who is indirectly the object of discrimination from the rule or providing that individual with a benefit to compensate for or mitigate the discriminatory effect. The right is asserted in matters of dress (wearing a scarf, a turban or a kirpan) and holidays for religious reasons in the workplace.

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POLITICAL GOVERNANCE

The guidelines for the type of political governance that Canada and France can exercise with respect to religion at school are set in fine by their respective constitutions, whatever legislative scheme governs the local school administration. In Canada, what guides the state in its conception of the management of diversity is reflected largely in the Canadian Charter of Rights and Freedoms, which, as I indicated earlier, is an integral part of the Constitution. In France, laïcité, which was included in the 1946 constitution, although not defined, constitutes the normative ideal of citizenship in a pluralistic society. The reference to human rights is part of the preamble of the French Constitution.

Despite the structural difference with respect to the status given to fundamental rights and the framework in which they must be interpreted, we can nevertheless put forward that the two modes of governance tend ideally to conform to what the spirit of constitutional law demands with respect to the freedom and equality of citizens.

However, it is interesting to examine the marked differences between the two countries and one can avoid setting the French “republican” model against the more “communitarian” Anglo-Saxon model in a simplistic opposition because this typification is misleading and even outdated when the social and political public debates on religious diversity are examined closely. However, the differences are evident, as much at the level of the state's understanding of its duty to manage religious diversity, as at the level of the dominant social representations of the degree of acceptance of it, of diversity's contribution to the ideal of shared citizenship, or its potentially adverse affect in it.

Through a few examples, I will show the problems that religious diversity raises in the school setting: teaching religion and support for denominational schools, wearing religious symbols by children, and the qualifications and beliefs of teachers.

The Status of Schools and the Teaching of Religions

In the school system, can parents demand that teaching be done in accordance with their beliefs? Is the teaching of religions, regardless of denomination, compatible with the Canadian Charter of Rights and Freedoms or laïcité?

As for the orientation of the schools' curriculum and the teaching of religion (from the perspective of the governance of religious diversity), the Canadian case presents a more asymmetric portrait than the French system. In Canada, one observes the existence of four main models of management between schools and religions: a completely laïcisé model in which any denominational reference is prohibited as far as schools and religious teaching are concerned (Prince Edward Island, New Brunswick and British Columbia); a second model that grants the constitutional right to non-denominational religious teaching (Newfoundland); a third model in which denominational rights per se are constitutionally recognized through a special provision drafted when entering the federation, but in which the application of such rights is left to the discretion of the school councils and translate into separate schools (Ontario, Nova Scotia, Alberta, Saskatchewan and Manitoba); and lastly, a laïcisé model that derogates from the Charters of Rights and Freedoms to maintain the denominational teaching of two traditions, Roman Catholic and Protestant (Quebec), a derogation that is being re-evaluated.

International instruments (such as the International Covenant on Civil and Political Rights signed by Canada) bind states to respect the rights of parents to ensure the moral and religious education of their children in accordance with their own beliefs and recognize the right to private education, but not the right to funding. In Canada, as a general rule, the financial support of provincial governments for denominational schools outside the public system is much less generous than what is offered to free schools in France.

The Ontario court decisions (to which other provinces can refer) as much as international precedents consider that the cultural teaching of religion or the history of religion does not adversely affect the freedom of conscience and religion of those receiving it, as long as it is done in an objective and neutral way. Public education including the teaching of a religion or a specific belief is incompatible with the statement of the International Covenant (article 18, paragraph 4) unless it provides for exemptions or the possibility of non-discriminatory choices that are in accordance with parents' wishes, which is very difficult to realize in practice, unless there are several religious groups that are quantitatively similar. For this reason, an exemption is considered (Court of Appeal for Ontario) to be contrary to freedom of conscience because such an exemption: 1) forces the child or his/her parents to pronounce their beliefs or their absence of belief, which the state cannot impose on anyone; and 2) has the effect of marginalizing the children who request it.

What happens to the content of teaching that is not directly religious but includes behavioural models that some citizens condemn due to their religious beliefs? What requirements with respect to citizen education can reasonably be expected in the governance of a diversity of moral and religious concepts?

In the Chamberlain vs. Surrey School District No. 36 affair of 2002, the Supreme Court of Canada (SCC) found that a school council's resolution that refused to approve three school books that showed same-sex parent families (because parents morally condemned the lifestyle), to be unreasonable and illegal. In a majority decision, the SCC found that the school council should not let any religious or moral opinion dictate its conduct and that it should act in compliance with the principles of the School Act of British Columbia that affirms the laïque character of schools, a laïcité that reflects the diversity of Canadian society and aims to foster a climate of tolerance and respect. laïcité is not only legally recognized but it is explicitly linked to diversity, tolerance and respect. Parents do not have to give up their personal beliefs or opinions concerning the “undesirable” character or behaviour of others, but they must accept that a whole range of family models be presented in the classroom to foster an understanding of others and that the teachers have the educational tools to do so.

In this case, as in several others, one can observe that laïcité is seen in a highly pragmatic manner as a framework that should foster tolerance and respect for diversity and does not stem from a political statement (even if the positive value given to diversity is recognized as such in many political statements). This pragmatism is not just procedural, it is part of a very broad “pluralistic” conception of freedom of conscience and religion.

Wearing Religious Symbols and the Equality of Treatment of Various Groups of Beliefs

The reactions surrounding the wearing of the headscarf at school is a symbolic indicator of the relationship between religious freedom and the concept of citizenship. Underlying these reactions of acceptance or prohibition are some fundamental questions that could be stated as follows: is the implicit definition that the political system gives to religion based on a Christian reference? Is religious diversity perceived as an obstacle to a citizenship conceived in terms of the autonomy of the individual, gender equality, and the ability of individuals to place distance between themselves and their community roots? In other words, can believers whose beliefs which determine their personal behaviour in public life but do not correspond to the liberal democratic ideal, be good citizens?

While it is politics in France that determines whether the wearing of the headscarf complies with school laïcité, in Canada, a statement supporting the wearing of the headscarf issued by a Human Rights Commission, which defended the action according to freedom of conscience and religion, the right to equality, and the duty of reasonable accommodation, was enough to quiet debate.

French political governance seems to recognize a duty on the part of the state to protect conscience from the influence of representations deemed radically contradictory to reason and autonomy: the argument of freedom of thought seems to outweigh that of freedom of religion, at least in political statements and public debates, as demonstrated by the creation of a list of sects, perceived as potentially dangerous because of their members or for social equilibrium, by an interdepartmental mission on the fight against sects (MILS—February 7, 2000).

In Canada, the release of such a list would undoubtedly be deemed contrary to the Constitution. The state would be accused of abandoning its position of neutrality if it ordered what is religiously correct or what complies with the most commonly shared values, because this distinction would be considered discriminatory.

The Religious Beliefs of Teachers and their Competency in Public Schools

In Canada, we make a distinction in matters of discrimination between the content of a belief and public behaviour in relation to others. The content of beliefs that discredits those of others or that disapprove of lawful behaviours do not necessarily imply a discriminatory behaviour toward others. One cannot reasonably or legally fear discriminatory behaviour on the part of individuals just because they hold beliefs that disapprove of the behaviour of others. In other words, the freedom of belief is broader than the freedom to act on the strength of a belief. On this point, the Supreme Court of Canada came to a conclusion only recently in a specific case (Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772).

Trinity Western University (TWU) is a private institution located in British Columbia and associated with the Evangelical Free Church of Canada. Trinity Western established a teacher-training program leading to an undergraduate teaching degree after five years, four of which are at TWU and the fifth under the aegis of Simon Fraser University. Trinity Western asked the British Columbia College of Teachers (charged with the accreditation of teacher training programs) for permission to take full responsibility for the teacher-training program to ensure that the program reflects its Christian vision of the world. The College of Teachers denied the request, because it feared the community standards of TWU, applicable to all students, teachers and staff, would discriminate against homosexuals. This fear stemmed more specifically from the list of “practices that the Bible condemns,” which includes “sexual sins, including...homosexual behaviour.” The members of the TWU community were required to sign a document in which they agreed to abstain from engaging in any such activity.

The Court found that “It cannot be reasonably concluded that private institutions are protected but that their graduates are de facto considered unworthy of fully participating in public activities...There is nothing in the TWU Community Standards, which are limited to prescribing conduct of members while at TWU, that indicates that graduates of TWU will not treat homosexuals fairly and respectfully.” In other words, the view is in keeping with the presumption of innocence in Canadian law. The TWU teacher who, in the public school system, would manifest a discriminatory behaviour, could then be subject to disciplinary or legal proceedings.

An infringement on the freedom of conscience and on religion must be appreciated in relation to the “facts” that prove this infringement. “Potential dangerousness” for the rights of others and social order cannot be presumed from religious doctrines, that is, on the basis of a hypothetical link between adhering to a system of beliefs and the feared restraint on the exercise of one's citizenship.

Many Avenues of Thought are Opening from the Standpoint of Comparative Analysis. To name only a few:

It can be theorized that the differences between Canada and France concerning the governance of diversity stem not from constitutional law but from the social practice of the law on the one hand and the influence afforded to politics in public debates (more so in France than in Canada). The social practice of the law and the weight given to politics significantly affect the social concepts of what is acceptable or not in terms of the leeway given to the expression of religious diversity in schools and in the interpretation of what constitutes discrimination.

How can political governance foster, in a context of religious diversity, a participatory conception of citizenship and the fulfilment of a social role by individuals with views of the world that reject, even partially, values fundamental to the ideal of liberal citizenship?

More specifically with regard to that melting pot for citizen integration, the school, by what method does the democratic tradition in each country come to terms with the diversification of conceptions of meanings.

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ANCILLARY NOTES

Religious exercises—Quebec legislation does not say anything about religious exercises. Once again, it is in Ontario that jurisprudence has established that religious exercises in public schools constitute an infringement on the freedom of religion, even if an exemption could be granted. In effect, by asking for an exemption, individuals have to express their beliefs and are marginalized, depending on circumstances, if they do not want to participate in the exercises. That is why the provisions in the rules and regulations of the Protestant committee that provide specifically for an exemption would infringe the on freedom of conscience and religion of those making such a request.

Denominational requirements of certain jobs—Only private denominational schools can use their religious nature to require religious qualities of all or some of their employees. However, public schools cannot avail themselves of their laïc nature to refuse to hire a candidate whose teacher training would have been entirely provided in a private denominational university that teaches, for instance, traditional Christian values according to which homosexuality is a sin (TWU vs. BCCT).

Religious teaching—The act provides that students or the parents of minor children have the right in any public school to choose either Roman Catholic religious teaching, Protestant religious teaching or laïque moral teaching, which schools are required to provide. As for the teaching of other religions, the commission can organize it on request from the school council.

From the standpoint of equality, the system is clearly discriminatory since it grants to the Catholics, Protestants and the non-religious a benefit that it does not grant to others. In addition, it is contrary to section 41 of the Quebec Charter that recognizes without distinction the parental right to demand religious teaching in public schools that is in accordance with their beliefs. In the eyes of section 10 of the Charter, discrimination appears even more evident. In the event that the objective of the chosen settlement should be neutral, such as favouring the moral training for citizens, this discrimination would not be justified given the provisions of section 1 of the Canadian Charter, because there is no rational link between the idea of favouring this moral training and that of reserving religious teaching to two religions.

In this regard, legal clarity is lacking. Indeed, given the dispensatory provisions that shelter the rights and privileges of the Catholic and Protestant religions from legal challenges, no one to this day has been able to legally verify whether or not religious teaching in public schools in Quebec infringes on the freedom of conscience and religion of individuals who do not practise these religions.

Note:

1 -Note from PCH: In France, laïcité refers to the separation of church and state, especially the absence of religious interference into government affairs (as well as the converse independence of religious practice). Although the concept is related to secularism, theoretically it does not imply hostility toward religious beliefs as can be perceived of secular societies. Rather, it implies the neutrality of the state concerning religious practice. There is no special status given to religion; religious activities are not considered above the law. Further, this neutrality does not protect any religions; the state's position is one of ambivalence. As such, the government refrains from taking positions on religious doctrine and only considers religious subjects for their practical consequences on the lives of French citizens.

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