IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL)

Transcription

1 Court No BETWEEN: AND: AND: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE BRITISH COLUMBIA COURT OF APPEAL) JAMES CHAMBERLAIN, MURRAY WARREN, DIANE WILLCOTT, BLAINE COOK, by his Guardian Ad Litem, SUE COOK, and ROSAMUND ELWIN THE BOARD OF TRUSTEES OF SCHOOL DISTRICT #36 (SURREY) EGALE CANADA INC., ELEMENTARY TEACHERS FEDERATION OF ONTARIO, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, THE BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 34 (ABBOTSFORD), CANADIAN CIVIL LIBERTIES ASSOCIATION, FAMILIES IN PARTNERSHIP, THE EVANGELICAL FELLOWSHIP OF CANADA, THE ARCHDIOCESE OF VANCOUVER, THE CATHOLIC CIVIL RIGHTS LEAGUE and THE CANADIAN ALLIANCE FOR SOCIAL JUSTICE AND FAMILY VALUES ASSOCIATION APPELLANTS (Petitioners) RESPONDENT (Respondent) INTERVENERS FACTUM OF THE INTERVENERS THE EVANGELICAL FELLOWSHIP OF CANADA, THE ARCHDIOCESE OF VANCOUVER, THE CATHOLIC CIVIL RIGHTS LEAGUE and THE CANADIAN ALLIANCE FOR SOCIAL JUSTICE AND FAMILY VALUES ASSOCIATION

2 D. Geoffrey Cowper, Q.C. Cindy Silver, Co-Counsel FASKEN MARTINEAU DUMOULIN Barristers & Solicitors Suite, 75 W. Georgia Street Vancouver, B.C. V6E 3G2 Telephone: Fax: Counsel for the Interveners The Evangelical Fellowship of Canada, the Archdiocese of Vancouver, the Catholic Civil Rights League and the Canadian Alliance for Social Justice and Family Values Association Joseph J. Arvay, Q.C. ARVAY FINLAY 4 th Floor, 888 Fort Street Victoria, B.C. V8W 1H8 Tel: Fax: Counsel for the Appellants Kevin L. Boonstra KUHN & COMPANY Barristers & Solicitors Suite South Fraser Way Abbotsford, B.C. V2T 5N7 Tel: Fax: and Jeffrey W. Beedell LANG MICHENER Barristers & Solicitors Suite 0 50 O Connor Street Ottawa, Ontario K1P 6L2 Telephone: Fax: Agent for the Interveners The Evangelical Fellowship of Canada, the Archdiocese of Vancouver, the Catholic Civil Rights League and the Canadian Alliance for Social Justice and Family Values Association Robert E. Houston, Q.C. BURKE ROBERTSON 70 Gloucester Street Ottawa, Ontario K2P 0A2 Tel: Fax: Agent for the Appellants Colin S. Baxter McCARTHY TETRAULT Barristers & Solicitors Suite 10 - Elgin Street Ottawa, Ontario K1P 5K6 Tel: Fax: Agent for the Respondent John G. Dives DIVES GRAUER & HARPER Barristers & Solicitors Suite 10 - W. Georgia Street Vancouver, B.C. V6E 3Y3 Tel: Fax: Counsel for the Respondents

3 Cynthia Petersen SACK GOLDBLATT MITCHELL Dundas Street, West, Suite 11 Toronto, Ontario M5G 1G8 Tel: Fax: Counsel for the Intervener EGALE Canada Inc. Howard Goldblatt SACK GOLDBLATT MITCHELL Dundas Street, West, Suite 11 Toronto, Ontario M5G 1G8 Tel: Fax: Counsel for the Intervener Elementary Teachers Federation of Ontario Chris W. Sanderson, Q.C. LAWSON LUNDELL West Georgia Street Vancouver, B.C. V6C 3L2 Tel: Fax: Counsel for the Intervener British Columbia Civil Liberties Association Daniel R. Bennett BULL HOUSSER & TUPPER West Georgia Street Vancouver, B.C. V6E 3R3 Tel: Fax: Counsel for the Intervener The Board of Trustees of School District no. 34 (Abbotsford) Pam MacEachern NELLIGAN POWER LLP 66 Slater Street, Suite 1900 Ottawa, Ontario K1P 5H1 Tel: Fax: Agent for the Intervener EGALE Canada Inc. Pam MacEachern NELLIGAN POWER LLP 66 Slater Street, Suite 1900 Ottawa, Ontario K1P 5H1 Tel: Fax: Agent for the Intervener Elementary Teachers Federation of Ontario Sylvie Roussel NOEL & ASSOCIATES 111 rue Champlain Hull, Quebec J8X 3R1 Tel: Fax: Agent for the Intervener British Columbia Civil Liberties Association Eduard J. Van Bemmel GOWLING LAFLEUR HENDERSON 160 Elgin Street Ottawa, Ontario K2P 3C3 Tel: Fax: Agent for the Intervener The Board of Trustees of School District no. 34 (Abbotsford)

4 Andrew K. Lokan PALIARE ROLAND ROSENBERG ROTHSTEIN LLP 250 University Avenue, Suite 501 Toronto, ON M5H 3E5 Tel: Fax: Counsel for the Intervener Canadian Civil Liberties Association Susan Ursel GREEN & CHERCOVER St. Clair Avenue West, th Floor Toronto, ON M4V 3A1 Tel: Fax: Counsel for the Intervener Families In Partnership Eduard J. Van Bemmell GOWLING LAFLEUR HENERSON 160 Elgin Street Ottawa, Ontario K2P 3C3 Tel: Fax: Agent for the Intervener Canadian Civil Liberties Association Eugene M. Meehan, Q.C. LANG MICHENER 0-50 O Connor Street Ottawa, ON K1P 6L2 Tel: Fax: Agent for the Intervener Families in Partnership

5 TABLE OF CONTENTS PAGE PART I STATEMENT OF FACTS... 1 PART II POINTS IN ISSUE... 2 PART III ARGUMENT... 3 A. The School Act, s Legislative History and Historical Context Legislative Contextual Analysis The Charter and the School Act The Preamble to the Charter B. Balancing of Rights within the Charter of Rights and Freedoms PART IV NATURE OF ORDER SOUGHT PART V LIST OF AUTHORITIES... 22

6 - 1 - PART I STATEMENT OF FACTS 1. The Evangelical Fellowship of Canada ( EFC ) is a national association of Protestant denominations, churches, church-related organizations and educational institutions representing a constituency of 32 denominations and approximately 0 organizations and colleges. Through its member denominations and associate organizations, approximately 1.2 million Canadians are members or adherents of the EFC member denominations. 2. The Archdiocese of Vancouver consists of 76 Catholic parishes representing approximately 350,000 Catholics in the Greater Vancouver area. A substantial portion of the students attending the Surrey District schools are Roman Catholics. 3. The Catholic Civil Rights League ( CCRL ) is a national non-profit lay Catholic organization incorporated under federal legislation. The CCRL has operated since 1986 when it was incorporated by letters patent and has approximately 00 individual and family members. 4. The Canadian Alliance for Social Justice and Family Values (the Alliance ) is a non-profit organization of parents and citizens registered in British Columbia on October 1, The purposes of the Alliance are primarily to safeguard constitutional rights and social justice with an emphasis on protecting parental rights, traditional family structure and family autonomy in public education and social policies. 5. These Interveners focus their submissions on the religious liberty and parental right issues raised by this appeal.

7 - 2 - PART II POINTS IN ISSUE 6. These Interveners focus their submissions on the following particular issues: (a) (b) the proper interpretation of s. 76 of the School Act, R.S.B.C. 1996, c. 412 and the term secular as it relates to the conduct of public education, including the relationship between Charter values and public education; and the scope of freedom of religion as well as the existence and scope of parental rights and the proper balancing of Charter rights and freedoms in this case.

8 - 3 - PART III ARGUMENT A. The School Act, s The Court of Appeal, in construing s. 76 of the School Act held that strictly secular : can only mean pluralist in the sense that moral positions are to be accorded standing in the public square irrespective of whether the position flows out of a conscience that is religiously informed or not: Reasons for Judgment, C.A., para. 33; [AR, Vol. XVII, p. 3119]. 8. In establishing the meaning to be attributed to s. 76 of the School Act, the Court of Appeal considered: (a) (b) (c) the legislative history of the provision and the historical context existing at the time the legislation was first enacted; textual factors, including the immediate context provided by reference to the relationship between the terms secular and non-sectarian and the related provision of s. 76(2); and whether the interpretation of s. 76(1) by the trial judge accorded with the Charter and the values expressed in the Charter. 9. It is submitted that, on a review of each of these factors, the Court of Appeal s interpretation of s. 76 gives effect to the proper meaning of the term secular in this particular context. Legislative History and Historical Context. After a comprehensive review of the legislative history of s. 76(1), the Court of Appeal found that the addition of the term secular within s. 41 of the Public Schools Act, 1867, S.B.C. No. 2 (1876), was intended to reinforce the non-denominational character of

9 - 4 - the public schools thus concluding that the term secular is intended to mean pluralist in the sense that all moral values, flowing from religious conviction and otherwise, are relevant to the conduct of public school education. [Intervener s Book of Authorities Tab 5] 11. This interpretation is consistent with the social conditions and historical context existing in 1876 when the word secular was first included in what is now s. 76(1) of the School Act.[Respondent s Factum Tab 6] In this respect, the Court of Appeal held: In the social and political culture of the times, I have little doubt that the architects of the 1876 amendment would have been startled and dismayed at the suggestion that secular required religious unbelief: Reasons for Judgment, C.A., para. 26; [AR, Vol. XVII, p. 3115]. 12. Similarly, the Court of Appeal s interpretation is consistent with both the earlier history of the legislation and with the later amendment to the School Act which expressly permitted the use of the Lord s prayer and the reading of a passage of scripture. Legislative Contextual Analysis 13. These Interveners support the interpretation by the Court of Appeal that the term secular, in its legislative context, is intended to mean non-denominational and that it was not intended to exclude moral values flowing from religious conviction. Secular is intended to be categorical in character and distinguishes between conduct that is secular and conduct that inculcates a particular religious doctrine or dogma. 14. This view is amply supported by the New Shorter Oxford English Dictionary definition: Belonging to the world and its affairs as distinguished from the Church and religion; civil, lay; non-religious, non-sacred Not concerned with religious subjects or devoted to the service of religion; (of a school or education) excluding religious instruction; not promoting religious belief [Intervener s Book of Authorities Tab 7] 15. This definition is inconsistent with the view advocated by the Appellants that any moral concern flowing from religious conviction is prohibited from being taken into account by a school board on the basis that such a conviction would not be strictly secular.

10 - 5 - Rather, it is clear that the reference to secular was intended to distinguish the administration of the public school system from private school systems operated by denominations which then and now, include religious instruction and denominational participation as part of their core identity. 16. In s. 76(1) of the School Act, the term secular is used in company with the term non-sectarian. The Appellants submit (at para. 121) that if the Court of Appeal s interpretation of secular means non-denominational it adds nothing to the requirement that the principles upon which the school is conducted be non-sectarian. 17. The terms secular and non-sectarian serve an analogous purpose in s. 76(1) and should be read conjunctively as submitted by the Appellants. However, the two terms are still given distinct content on the interpretation found by the Court of Appeal. This is evident even from the Appellants (at para. 121) use of the definition of the term sectarian as meaning of or concerning a sect. The principle that public schools should be conducted on non-sectarian principles removed specific denominational or sectarian indoctrination from the schools. The provision that schools be conducted on secular principles broadened the requirement to ensure that the conduct of the public school system remain separate from any religious indoctrination. 18. The removal of religious indoctrination from the administration of public schools does not, however, equate with the removal of moral teaching in the schools, including moral teaching that may be informed by religion. Nor does the secularization of the public school system remove the question of morality from decisions concerning the conduct of the public school system or make religious unbelief a condition of participation in the setting of the moral agenda : Reasons for Judgment, C.A., para. 31; [AR, Vol. XVII, p. 3118]. 19. In a purely textual analysis, strictly secular in s. 76(1) cannot be read in isolation from the requirement in s. 76(2) that the highest morality must be inculcated. It is submitted that the legislature s concern, expressed through the specific insertion of a reference to the highest morality, was to ensure that the statute not be interpreted as excluding morality from what is taught or how the public school system is conducted. Thus,

11 - 6 - the manner in which public schools are conducted must (in order to comply with the provisions of the School Act) be undertaken on the basis of secular and non-sectarian principles but also in such a way that results in the inculcation of the highest morality.. There is no such thing as a value free or morally neutral education. This flows not only from the legislative pronouncement in s. 76(2) of the School Act that the highest morality must be inculcated but also from the very nature of human society. We all wish our children to receive a public education that is consistent with and advances the moral lives of our children. The Charter, to a certain extent, informs those morals by identifying compelling public values, however, it is not exhaustive. Indeed, as a society we seek to teach and instil in our children many virtues left unspoken by the Charter including honesty, wisdom, self-control, courage, civility, cooperation, humility, forgiveness and charity. 21. Only if s. 76 represented a legislative interference with constitutionally protected rights, does the Charter have clear and direct application. The Charter was never conceived of or approved by Canadians as a code of moral behaviour. The Charter enshrines (itself a term of religious origin) a number of rights and freedoms which are protected from governmental interference and in many cases does not even indirectly affirm or embrace the content of those rights once exercised. The fundamental freedoms of expression and conscience granted by s. 2(b) and protected from governmental interference do not dictate the content of desired expressions or the content of moral and religious choices made by Canadians. There are important differences between Charter values and delineating the "highest morality" referred to in s. 76(2) of the School Act. 22. The term "highest morality" in s. 76(2) (used in the first instance in 1869) was likely meant to refer to those goals of morality generally shared by the major religious faiths of Canada and upon which a civil order was regarded as being founded. Although the past century and a half has seen an increase in the portion of society which adheres to principles of morality for reasons unconnected with religious faith, that fact does not alter the nature of the category. These general goals of morality (most stemming from religious traditions) are indispensable to a civil society. The fact that many subscribe to them because of their

12 - 7 - correspondence in the principles of their faith is supportive rather than corrosive of democracy and a shared system of public education. 23. Historically most of these moral concerns were characterised as flowing from a Judeo-Christian morality broadly shared by all Protestants, Catholics and Jewish believers. As our society has come to include members of other faiths, the list of moral virtues has been supported by and supplemented by, similar moral standards prevailing in religions such as Islam, Sikh, Hinduism, Buddhism, and First Nations religions. The process has not been exclusively from religion into society; the non-religious philosophical concepts of virtue expressed by Aristotle and the Greek philosophers were embraced and included within the thinking of many Christian theologians. 24. A moral principle is 'religious' as opposed to secular if it requires for its acceptance, faith in the religion. The origin of a particular moral standard is unnecessary to determining whether that moral question may influence secular education. It need only be determined if the measure represents the inculcation of a religious practice or observance. 25. Simply because a moral concern originates in religious faith ought not to disentitle it from being advanced as a social good deserving of acceptance by Canadians generally. Such a moral value does not cease to have religious significance for members of the faith or faiths, but rather takes on acceptance by the community generally as an attractive social good worth pursuing: see, for example, the majority in Rodriguez v. B.C., [1993] 3 S.C.R. 519, at p. 585, speaking of the "sacred and inviolable" value of human life in the "non-religious sense." [Intervener s Book of Authorities Tab 2] Many of the great moral causes in Western history have been participated in by religious persons informed and motivated by their faith. Movements advocating the abolition of slavery, the advancement of civil rights, and the amelioration of the plight of the poor have all been argued for by religious people alongside those holding other beliefs, as well as those of no religious faith. 26. The position advanced by the Appellants proposes an unrealistic and false view of the nature of faith. Religious persons cannot, and should not be required to pretend to, compartamentalise their principles as if religion is confined to matters of ritual and observance.

13 The position advanced by the Appellants (at para. 128) that s. 76 requires decision makers to have reference to non-religious principles in making decisions about the conduct of the schools. is in direct contradiction to the Appellants earlier submissions and cannot be sustained on a proper interpretation of s. 76. As the Court of Appeal observed, such a requirement would have the effect of mandating established unbelief as a prerequisite to participation in public education and would effectively banish religion from the public square : Reasons for Judgment, C.A., para. ; [AR, Vol. XVII, p. 3118]. 28. That this is the intent of the Appellants is apparent from the fact that this case is not about the discussion with or education of students about same-sex relationships generally, but rather the use of the materials immediately upon the children joining the school system. 29. The requirement that public schools be conducted on strictly secular and nonsectarian principles means that decision makers cannot promote religious doctrine and should not be motivated to effect a religious purpose. Again, on this point, there seems to be substantial agreement between the parties. The Appellants err, however, in characterizing the Three Books Resolution as a decision that has a religious purpose. At para. 129, the Appellants liken the Three Books Resolution to the Sunday closing law at issue in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R Unlike the Lord s Day Act, which was found to have as its purpose the compulsion of religious observance, the purpose of the Three Books Resolution was not religious. These interveners submit that the Respondent s educational justification for the decision as well as its desire to accommodate parental concerns over interference with their right to raise their children in accordance with their own convictions is well supported and does not seek to advance a religious purpose.. The Three Books Resolution is an example of the proper functioning of the School Board in that decision makers are entitled, in fact mandated, by s. 76 to have regard to the common moral goals expressed by the community, irrespective of whether those goals are influenced by religion. The interpretation of the School Act as construed by the Court of Appeal allows for school boards to conduct public schools in British Columbia in a way which advances the common concerns of morality held by society, without artificially

14 - 9 - distinguishing between moral concerns influenced by religious faith or otherwise. It upholds the distinction between denominational or doctrinal education and public education and permits the participation of persons of many faiths in the public school system of British Columbia. The Charter and the Proper Interpretation of the School Act 31. The interpretation of the School Act adopted by the chambers judge and advocated by the Appellants would require a world in which morals only become relevant if they have been secularized in some mysterious fashion and shorn of any religious connection. Rather than permitting an open debate about what concerns of morality are jointly shared in a civil society, the public school system would become an arena in which only moral considerations divorced from faith can be advanced or even debated. 32. This interpretation would limit the right of religious parents, teachers and students to manifest their faith in the public arena in a manner inconsistent with the Charter. 33. The Court of Appeal recognized that such an interpretation would be a contradiction of Charter values in that it would deny access to the decision making process by which the content of school materials and the conduct of the public school system are determined to persons whose views are informed by their religious faith. The Court of Appeal held that: No society can be said to be truly free where only those whose morals are uninfluenced by religion are entitled to participate in deliberations related to moral issues of education in public schools. In my respectful view strictly secular so interpreted could not survive scrutiny in the light of the freedom of conscience and religion guaranteed by s. 2 of the Charter and the equality rights guaranteed by s. 15: Reasons for Judgment, C.A., para. 34; [AR, Vol. XVII, p. 31]. 34. Contrary to the submission of the Appellants, an interpretation of the School Act which prohibits public officials from taking into account certain moral views expressed by the community in setting the moral agenda for schools simply because they are informed by religion fails to take into account religious liberty interests and equality rights. A properly

15 - - functioning public education system must recognize the right of religious parents, teachers and students to participate in the system by ensuring that they have a voice in the debate. At the same time, the system must extend the same degree of concern, respect and consideration to the views of religious members of the community as are afforded to other members of the community. As Mackenzie J.A. wrote, a religiously informed conscience should not be accorded any privilege, but neither should it be placed under a disability : Reasons for Judgment, C.A., para. 28; [AR, Vol. XVII, p. 3116]. 35. The Appellants advocate an interpretation of the School Act that, while allowing parents to participate in the debate and put forward their views based on religion, effectively mandates that those views be disregarded or ignored. Excluding those with religious views from participating in the public debate as to the appropriate moral agenda for our schools runs contrary to the essence of the concept of freedom of religion identified by Dickson J., as he then was, writing for the majority in Big M, supra, at para. 94, as including: 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 religious belief by worship and practice or by teaching and dissemination. [Appellants Book of Authorities Tab 27] 36. In contrast, the Court of Appeal s interpretation of s. 76 permits broad and vigorous participation by all members of the community thereby enhancing the human dignity of individuals and groups, including those who adhere to a particular religious faith, by recognizing the full place of all individuals and groups within Canadian society : Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 53. [Appellants Book of Authorities Tab 19] To hold otherwise would be to marginalize and ignore religious groups and individuals, the consequence of which is an affront to the human dignity of those groups and individuals. The importance of a proper definition of secular in preserving a truly liberal relationship between Canada s various communities is considered in depth in I.T. Benson, Notes Towards a (Re) Definition of the Secular, 33 U.B.C. Law Review, 519. [Intervener s Book of Authorities Tab 9] 37. An interpretation of the School Act which does not recognize the full place of all individuals and groups in Canadian society has the further effect of withholding a distinct

16 benefit from religious groups; namely, the right to participate in the conduct of the public school system. Similarly, if participation in the debate over the content of public school materials and the conduct of public schools generally requires adherents of a religious faith to participate only at the expense of surrendering to the wishes of a hypothetically secular approach to education, the direct effect of such a requirement is to impose a disadvantage on groups of religious persons in the community. 38. It is respectfully submitted that the Court of Appeal s interpretation is not only proper but the only possible interpretation available in light of the principle that legislation should be interpreted in a manner that is consistent with the Charter. The Preamble to the Charter 39. One helpful feature of the Charter that has been overlooked is the existence in the Preamble of a positive affirmation of the relationship of civil society to the supremacy of God. The Preamble to the Charter states that: Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law [Intervener s Book of Authorities Tab 4]. The Preamble as worded was added in an amendment made by the House of Commons on April 23, 1981, and by the Senate on April 24, The amendment was demanded and required after the Charter had been drafted and presented to Parliament without any reference to the supremacy of God. 41. The Canadian Bill of Rights, S.C. 1960, c. 44 also refers to the supremacy of God in the following terms in its Preamble: The Parliament of Canada, affirming that the Canadian nation is founded upon principles that acknowledge the supremacy of God, the dignity and worth of the human person and the position of the family in a society of free men and free institutions; Affirming also that men in institutions remain free only when freedom is founded upon respect for moral and spiritual values and the rule of law; [Intervener s Book of Authorities Tab 3]

17 While reference to the supremacy of God in the Preamble to the Charter conveys no specific constitutional right, Dickson J. in Big M, supra, at para., held that it must be considered when analyzing the nature of the guarantee of freedom of religion contained in s. 2[Appellants Book of Authorities Tab 27]. Indeed, the Preamble is intended to reflect the original or founding principles of Canadian society. It is worth noting that the jurisdictions of the religious and secular are paralleled in the reference to the supremacy of God and the rule of law. 43. It is respectfully submitted that the Appellants submissions and the learned Chambers Judge's interpretation of Section 76 of the School Act view a public belief in the supremacy of God as incompatible with the Charter. To the contrary, the legislators of the Charter required an express acknowledgement of the supremacy of God in the very context of recognising the rights and freedoms enshrined in the Charter as a useful corrective to governmental authority and a progressive means of ensuring the freedom to pursue the moral and spiritual values we choose as individuals and communities. As Canadians we have chosen to live with the tensions that the recognition of these two principles create with a view to creating and fostering a truly pluralistic society. B. Balancing Rights within the Charter of Rights and Freedoms 44. Having concluded that in approving the Three Books Resolution the School Board conducted itself in accordance with strictly secular and non-sectarian principles as required by s. 76 of the School Act, the Court of Appeal went on to consider whether the decision of the School Board properly balanced the fundamental rights and freedoms raised by the case. The Court concluded that the liberty of parents to ensure the religious and moral education of their children was limited by the need to take reasonable measures to protect against discrimination. However, the Court was satisfied that any direction to the School Board to approve the three books as recommended learning resources was not aimed at protecting against discrimination on the basis of sexual orientation. Rather, the Court of Appeal recognized that the order sought by opponents of the School Board, and advocated by

18 the Appellants here, had as its purpose the promotion of a political and moral agenda that constituted an unjustified interference with parental rights and religious liberty interests. 45. The questions raised by the Appellants as to the constitutionality of the Three Books Resolution requires this Court to reconcile competing interests: the rights of parents in the Surrey community to guide the religious and moral education of their children and the need to ensure that the public schools are free from discrimination on the basis of sexual orientation. In this respect, the issues raised by this appeal are similar to those raised in Trinity Western University v. British Columbia College of Teachers, [01] 1 S.C.R. 772 in that the appeal involves a situation where the religious freedoms of certain individuals are claimed to interfere with the fundamental rights and freedoms of other individuals. The approach adopted by this Court in Trinity Western, supra, is instructive and, it is submitted, ought to be applied in this case. [Respondent s Book of Authorities Tab 32] 46. In considering how to reconcile religious freedoms with equality concerns in Trinity Western, supra, Bastarache and Iacobucci JJ., for the majority, wrote, at paras : In our opinion, this is a case where any potential conflict should be resolved through the proper delineation of the rights and values involved. In essence, properly defining the scope of the rights avoids a conflict in this case. [Respondent s Book of Authorities Tab 32] 47. It may not always be possible to resolve conflicts between protected rights through delineation of the rights involved, but in this case that approach is sufficient to the problem raised by the facts. It is submitted that the Three Books Resolution simply declined to introduce the issue of sexual orientation for debate at Kindergarten and Grade 1 levels, reserving the issue for debate later in the educational process and for society in general. This does not abridge the Appellants right to be free from discrimination on the basis of sexual orientation in that the Appellants equality rights do not require or justify a positive right to teach the morality of homosexual relationships in Kindergarten and Grade 1. Properly defined, s. 15 is concerned with discrimination in the sense of a denial of equal treatment by the law or by government action. As the Respondent notes, however, the Three Books Resolution does not amount to discrimination in a substantive sense; neither its purpose nor

19 its effect abridge the Appellants right to remain free from discrimination on the basis of sexual orientation. 48. The Appellants claim that the Three Books Resolution amounts to discrimination on the basis of sexual orientation because it excludes positive representations of same-sex parents from Surrey schools. They argue that the three books must be approved for use as recommended learning resources for Kindergarten and Grade 1 students to supplement the provincially approved curriculum in order to ensure that gay and lesbian parents and their children feel validated and accepted. What the Appellants seek, by means of a judicial order, is to inculcate moral acceptance and approval for same-sex relationships through the vehicle of early elementary education. The effect of the Appellants constitutional argument is to require that all groups and practices having the benefit of equal protection in the Charter must be represented in a positive and affirming way in educational materials. 49. With respect, the Appellants submissions are incompatible with the function of the Charter and the equality provisions contained therein. It must be recognized that the Charter is a document which represents the protection of certain specified rights. At its core, the Charter represents a statement of rights held by individuals or groups in society that cannot be infringed by government except in accordance with its provisions. It does not purport to state what Canadian individuals or communities should do with the rights and liberties enshrined in the constitution or what goals and objectives they ought to pursue separately or as communities. Thus, where a law is unconstitutional because it discriminates against a vulnerable group, the Court s action in striking down the law may also challenge society s attitudes to change. However, both the province and justification for that broader effect upon society of a constitutional finding requires a well-established legal foundation. In this case the proposed foundation is a measure initiated to promote a social, political and moral agenda as to the morality of homosexuality; however necessary that debate, it is not appropriate for the Courts to act in the absence of a proven governmental act of discrimination.

20 The Appellants urge this Court to accept that the School Board s silence or its failure to promote the validity of same-sex families is itself discriminatory. The circumstances in which silence is held to constitute discrimination must in all wisdom be few, and well proven. 51. Moreover, to extend the scope of s. 15 in the manner sought by the Appellants and to grant an order requiring the School Board to approve the three books for use as a recommended learning resource would be inconsistent with the Charter s concern for the preservation of freedom of conscience and religion, the right not to be discriminated against on religious grounds and the right of parents to guide the moral and religious education of their children. It is respectfully submitted that mandating a morally affirming position with respect to same-sex relationships in effect would utilize the analogous ground of same-sex relationships in s. 15 to trump the rights of persons not to be discriminated against on the basis of their religion in s. 15 and the freedom of conscience and religion protected by s. 2(a). 52. The proper and necessary role for parents in their childrens education is recognised both in law and social utility. Article 26(3) of the Universal Declaration of Human Rights [Intervener s Book of Authorities Tab 8] recognises the foundational importance of parental rights in relation to education in the following terms: Parents have a prior right to choose the kind of education that shall be given to their children. Parents of all faiths must be enlisted in the cause of preserving the pluralistic integrity of public schools; indeed, parents are the natural allies and not the enemies of genuine pluralism in the public school system. The fact that this is particularly so in the early years of education is explicitly recognised in the British Columbia Ministry of Education Personal Planning K-7 Integrated Resource Package which affirms that [t]he family is the primary educator in the development of children s attitudes and values : [AR, Vol. 1, pp ]. 53. As noted by the Respondent, s. 2(a) of the Charter includes the rights of parents to raise their children in accordance with their religious beliefs. A majority of this Court confirmed this aspect of the guarantee of freedom of religion in B.R. v. Children s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 wherein LaForest J. (per L Heureux- Dube, Sopinka, Gonthier and McLachlin JJ.) held, at para. 55:

21 In R. v. Jones, supra, I observed that freedom of religion encompassed the right of parents to educate their children according to their religious beliefs. In P.(D.) v. S.(C.), [1993] 4 S.C.R. 141, a case involving a custody dispute in which one of the parents was a Jehovah s Witness, L Heureux-Dube J. stated that custody rights included the right to decide the child s religious education. It seems to me that the right of parents to rear their children according to their religious beliefs, including that of choosing medical and other treatments, is an equally fundamental aspect of freedom of religion. [Respondent s Book of Authorities Tab 2] 54. In the same decision, the importance of the parental role in constitutional analysis was also noted, at para. 85: The state is now actively involved in a number of areas traditionally conceived of as properly belonging to the private sphere. Nonetheless, our society is far from having repudiated the privileged role parents exercise in the upbringing of their children. This role translates into a protected sphere of parental decision-making which is rooted in the presumption that parents should make important decisions affecting their children both because parents are more likely to appreciate the best interests of their children and because the state is illequipped to make such decisions itself. [ ] In other words, parental decision-making must receive the protection of the Charter in order for state interference to be properly monitored by the courts, and be permitted only when it conforms to the values underlying the Charter. [Respondent s Book of Authorities Tab 2] 55. While it is true that parents delegate their authority to teachers and entrust them with the responsibility of instilling in their children a large part of the store of learning they will acquire during their development (R. v Audet, [1996] 2 S.C.R. 171 at p. 196) [Respondent s Book of Authorities Tab 24], parental delegation in this regard is limited. These Interveners submit that parents retain the right to exercise an advisory role over the development and delivery of educational policy and curriculum. Not only is this submission consistent with Charter values but it gives effect to provisions of the School Act which give parents the right to participate in an advisory role over school-related matters through communication with the school board, principal and teacher and by involvement in parent

22 advisory councils: see School Act, supra, ss. 7 (a), (c), and 8 (5). [Intervener s Book of Authorities Tab 6] 56. Respect for the role of the family is important throughout the education system, but is all the more important in the elementary school setting. The risk that teachers may intentionally or unintentionally exploit the teaching role entrusted to them by parents is well recognized. In British Columbia, the most important safeguard against ideological exploitation is found in the British Columbia Teacher s Federation Code of Ethics: The teacher recognizes that a privileged relationship with students exists and refrains from exploiting that relationship for material, ideological or other advantage: [RR, Vol. III, p. 463]. [emphasis added] 57. The Court of Appeal s judgment in this case properly reflected this aspect of the guarantee of freedom of religion by recognizing that parental views on matters of sexual orientation are entitled to be respected : Reasons for Judgment, C.A., para. 60 [AR, Vol. XVII, p. 3137]. This approach conforms with the broader view expressed by Dickson J. in Big M., supra, at para. 94, that [a] truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. [Appellants Book of Authorities Tab 27] 58. Contrary to these basic and fundamental principles which form the foundation of the jurisprudence in respect of the guarantee of freedom of religion, the Appellants purpose in having the three books introduced as recommended learning resources at the Kindergarten and Grade 1 level is to counter or correct those values, imparted by parents in the exercise of their constitutional right to guide the moral and religious education of their children, that contradict the Appellants understanding of morality and truth. This purpose is reflected in the Appellants evidence in the affidavit of Sandra Bruneau: There are occasions, of course, that schools and teachers are required on moral grounds to counter what some parents are teaching their children Schools play an important role in the lives of children to help set them free, as much as they can, from sets of values : [AR, Vol. XII, p. 28].

23 On the same reasoning employed by the Appellants, the use of the materials at issue would carry a strong message that adherence to any religion which dissented from the view that same-sex relationships are morally identical to other relationships is regressive, wrong and immoral. Thus, the order sought by the Appellants, if granted, will adversely affect the members of many of Surrey s religious communities who will no longer feel free to express their religious beliefs regarding the morality of homosexual relationships and same-sex families without fear of contradiction and ostracism in the classroom. However difficult, genuine pluralism must embrace tolerance without requiring a celebration of all viewpoints and values. An order from this Court mandating the use of the three books in Surrey schools would endorse the Appellants purpose and would thereby endanger the s. 2(a) rights of parents in Surrey whose ability to teach their children according to their own moral and religious convictions would be subject to challenge upon their entry into the public schools. 60. This is not to say that religious and moral convictions should never be subject to challenge in our educational institutions or that schools should be prevented from discussing ideas or principles which are inconsistent with the religious convictions of their students. In fact, many religious traditions welcome the opportunity to engage in debate with respect to morally contentious issues (including the morality of homosexual conduct) and are not opposed to such debate in the later stages of the public education system when parents can be confident their children are mature enough to consider and learn from the variety of views present in a pluralistic society. 61. Contrary to the submission of the Appellants, neither the Respondent nor these Interveners take the position that the guarantee of freedom of religion includes the right to ensure one s own children be wholly protected from exposure to ideas which differ from one s own religious beliefs (at para. 80). This was not the purpose of the Three Books Resolution. Rather, as the Respondent sets out in its Factum, the decision not to approve the three books related to numerous factors including, inter alia: the right of persons to hold religious and moral convictions and to teach their young children in accordance with those views, the appropriateness of the materials to the age of the children involved, including the ability of five and six year old children to deal with conflicting messages from

24 home and school, and whether the materials were necessary to achieve the learning outcomes prescribed by the provincial government or even the purpose sought to be achieved by the Appellants in this appeal. It is respectfully submitted the School Board was entitled to consider each of these factors and that in doing so, the School Board managed to achieve a balance between the equality rights of the Appellants while affording the appropriate degree of deference to religious liberty interests and parental rights. 62. The suggestion advanced by the Appellants (at para. 82) that those offended by the use of materials promoting the morality of homosexuality remove their children from the classroom or educate their children at home or a separate school does not effect a proper balancing of the rights in issue in this appeal. To the contrary, this suggestion fails to accommodate religious freedom and imposes a disadvantage on religious groups in the community, effectively closing off the public school system to their children. In a publicly funded school system, it is unsatisfactory to force parents whose morality is offended by materials to be used in the education of five and six year old children to take their children out of school altogether or at all. 63. These Interveners agree that where the protected rights of two individuals come into conflict, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights : Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at p [Intervener s Book of Authorities Tab 1] Similarly, these Interveners agree that [n]either freedom of religion nor the guarantee against discrimination based on sexual orientation is absolute: Trinity Western, supra, at. para. 29 [Respondent s Book of Authorities Tab 32] However, as stated earlier, the Three Books Resolution does not pose a real risk to the Appellants right to remain free from discrimination based on sexual orientation. Rather, the relief sought by the Appellants is aimed at garnering social acceptance for homosexual conduct generally and as expressed in the context of same-sex headed families. To require materials be used which teach moral neutrality between these lifestyles is to convert a legitimate right not to be discriminated against into a constitutionally mandated interference with the freedom of conscience and religion of Canadian families.

25 It is respectfully submitted that the School Board s silence in the context of this appeal is not discriminatory to same-sex persons and does not have a discriminatory purpose or effect. Further, it is submitted that the right to be free of discrimination on the basis of an enumerated or analogous ground contained in s. 15 of the Charter does not guarantee the right to advance a political and moral agenda in the public schools. It follows that any contention that the guarantee of freedom of religion brought into issue in this appeal is inherently limited by reason of the rights and freedoms of the Appellants cannot be sustained in light of the analysis undertaken above, and in more detail by the Respondent, that the Three Books Resolution is incapable of being characterized as discriminatory, either in principle or in fact. 65. The Appellants characterize the Three Books Resolution as an attempt by certain citizens to impose their own views of religion and morality on the public school agenda. This is not a proper characterization of the Three Books Resolution. Rather, the Appellants seek to use the three books to inculcate children in a specific view as to the morality of homosexual relationships. It is the Appellants who seek to impose their own views of morality on the public school agenda. The Three Books Resolution does nothing more than preserve to the families in Surrey the authority of dealing with the issue of samesex relationships and families as they see fit as it relates to five and six year old children. It is respectfully submitted that the School Board's decision to defer to the community and its apprehension over exposing young children to this social controversy is not a decision which imposes one religious viewpoint over another; it is not a "religious decision" at all, but rather a decision as to how best to approach a socially controversial issue in light of the mix of views in the community as to the proper moral view of the issue and the fundamental rights and freedoms at stake.

26 PART IV NATURE OF ORDER SOUGHT 66. These Interveners support the Order sought by the Respondent in this appeal. ALL OF WHICH IS RESPECTFULLY SUBMITTED D. Geoffrey Cowper, Q.C. Cindy Silver COUNSEL FOR THE INTERVENERS

27 PART V LIST OF AUTHORITIES PAGE(S) Caselaw 1. B.R. v. Children s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R , Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R R. v Audet, [1996] 2 S.C.R R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R ,, 12, Rodriguez v. B.C. (A.G.), [1993] 3 S.C.R Trinity Western University v. British Columbia College of Teachers, [01] 1 S.C.R , 19 Legislation 8. Canadian Bill of Rights, S.C. 1960, c Public Schools Act, 1867, SBC No. 2 (1876) 3, 4. School Act, R.S.B.C. 1996, c. 412, s. 7(a)(c), 8(5), s. 76 2, 3, 4, 5, 6, 8, 9,, 12, 16, Universal Declaration of Human Rights, Article 26(3) 15

28 Secondary Sources 12. Brown, New Shorter Oxford English Dictionary on Historical Principles, Vol. 2, N-Z, Clarendon Press, Oxford 1993 Articles Benson, I.T., Notes Towards a Re(Definition) of the Secular, 33 U.B.C. Law Review 519