By Derek Ross & Deina Warren
Who should decide which beliefs will — and will not — be inculcated in children? Their parents or the State?
This is a central question underlying several recent education-related disputes.1
The general rule, from a legal perspective, is clear. As the Ontario Court of Appeal (ONCA) recently affirmed, parents, not the state, have primary authority to determine the moral education of their children: “the right of parents to care for their children and make decisions for their well-being, including decisions about education, is primary, and the state’s authority is secondary to that parental right. This has been recognized in many different cases, statutes, and international instruments.”2
Public education is not an authority inherent to the State, but an authority delegated to the government by parents. As Supreme Court Justice La Forest described it: “Parents delegate their parental 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.”3
That said, parental authority is not absolute. While the law presumes that “parents are in the best position to take care of their children and make all the decisions necessary to ensure their well-being,” this presumption can be rebutted if there is evidence of harm to the child’s welfare and best interests.4 Otherwise, the parental right to direct the moral education of their children is paramount and “those who administer the Province's educational requirements may not do so in a manner that unreasonably infringes on the right of the parents to teach their children in accordance with their religious convictions.”5
Education is Not Morally Neutral
It is widely accepted that compelling students to participate in religious exercises, or teaching religion itself in certain ways, can engage s. 2(a) of the Charter, but some argue that religious freedom is not implicated in other contexts.
Here it is important to recognize, as the majority did in ET v Hamilton-Wentworth District School Board (ONCA), that “[p]ublic education has never been morally neutral.”6 Rather, “teachers play a critical role in inculcating beliefs in school children.”7 Much of education is inherently ‘religious’ — not necessarily in a deistic or theological sense, but in the sense that it is promoting a particular and authoritative vision of what is good and true. When students are taught certain virtues and ethics, educators necessarily adopt a normative position which prioritizes certain moral beliefs, judgments, and ideas above others. It is not accurate to describe such a framework as religiously-neutral. As lawyer John Sikkema has observed: “In a sense, all morality is religious, because all determinations of right and wrong are rooted in a view of the ultimate source and meaning of life.”8 This was reflected in the Report of the Ministerial Inquiry on Religious Education in Ontario Public Elementary Schools (cited by the majority in ET):
An educational system cannot be neutral. If there is no religious education or any form of religion in the schools, then secular humanism, by default, becomes the basic belief system. Secular humanism does not represent a neutral position. […]
In every relationship, and especially in that between a teacher and a student, there is something that can be referred to as religious education. It is the transmission of ideas, or answers to significant life-related questions, or it is the exemplification of values by "precept and example."9
This reality does not, in itself, violate the Charter rights of families,10 but it is important to recognize the value-laden nature of education in order to understand how the teaching of subjects considered “non-religious” can and does engage families’ fundamental freedoms — particularly in relation to topics such as sexual ethics and marriage, on which reasonable people may hold diverse views “based on decent and honourable religious or philosophical premises.”11
In ET, for example, the majority recognized that promoting certain moral positions without accommodation for families who wish to ‘opt-out,’ or at least be informed in advance, of such activities could, in some contexts, violate the Charter:
“The mores contained in the [educational] program can conflict with parental religious views, particularly if it is premised on the proposition that true acceptance of another person can only be achieved by embracing all of their self-understandings […] It would not be hard to imagine that a tweak to the program would pose a problem, or to imagine a teacher actively using both the force of personality and approved curriculum materials to undermine the faith commitments of students, which could make the provision of accommodation necessary.”12
Religious Accommodation and Equality
Some argue, however, that while families may have a right to religious freedom, school authorities also have an interest in countering ‘non-egalitarian’ beliefs, and that the State, in the words of Justice Abella, “always has a legitimate interest in promoting and protecting” the “shared values” of “equality, human rights and democracy.”13
School boards, for example, have sought to justify limits on religious freedom to advance such objectives as “encouraging a positive school climate.”14 But this goal “must reflect a two-way street.”15 Schools must provide positive environments for all families, not just those whose beliefs align with prevailing social mores. Further, the authority to promote a ‘positive school environment’ is not unlimited, and schools must “[m]aintain an environment that is free of pressure or compulsion in matters of religion and belief.”16
It is also important to recognize that Justice Abella’s comments above were made in the context of a decision which affirmed families’ autonomy to determine their own moral and religious education for their children. Furthermore, freedom of thought, religion, and belief are themselves fundamental human rights. Allowing families with minority beliefs to preserve and maintain their own moral commitments does promote human rights, democracy, and equality.
Minority Communities and the New ‘Majoritarian Sexual Morality’
Supreme Court Justice Russell Brown recently referred to the idea of a “majoritarian sexual morality.”17 While made in a different context, his caution against negatively treating those whose conceptions of sexual relationships are deemed “the ‘wrong’ kind” resonates here.18
Families who adhere to traditional conceptions of marriage and human sexuality are no longer aligned with ‘majoritarian sexual morality’ — to the contrary, they represent a new minority,19 and their conception of sexual ethics is increasingly seen as “the ‘wrong’ kind.” But their views are not necessarily harmful or contrary to the public interest, as Parliament affirmed in the Civil Marriage Act and the Supreme Court of the United States recently emphasized in Obergefell v Hodges.20
While many educational initiatives are well-meaning, there is danger in the government presuming to know better than a child’s own family and community what they should believe and think, by trying to extinguish the ‘wrong’ kind of ideas in favour of the state’s own moral ideology. Accommodating families with minority views is one way to safeguard against such dangers.
Human history has shown why it is harmful for the state to “interfere in the family to help children it consider[s] to be ‘backward’ and ‘delinquent”21 — many are extreme examples and distinguishable from the present context, but we would be remiss to ignore the historical context which led to international law’s recognition of “a foundational principle of family integrity and a resulting commitment to parental control over education.”22 The Universal Declaration of Human Rights, for example, affirms that the “family is the natural and fundamental group unit of society and is entitled to protection” and that “parents have a prior right to choose the kind of education that shall be given to their children.”23 These protections, like others in the UDHR, were in response “to wrongs that had been committed, most dramatically in the wartime contexts to which [the UDHR] immediately responded, but to other wrongs as well.”24
Canada has undergone a societal shift away from the previous ‘dominant’ morality in the name of autonomy and freedom. The true test of its liberal commitments, however, will be whether it allows space for all, or merely allows a new ideology to seize power and impose a ‘tyranny of the majority’ on those who think differently.25
1 One such recent case was ET v Hamilton-Wentworth District School Board, 2017 ONCA 893 [“ET”] which involved a parent who requested that the School Board “provide him with advance notice of any classroom instruction or discussion” of certain issues which he believed would contradict his family’s religious beliefs, including classes which promoted certain conceptions of marriage and human sexuality. The Board refused his request in part because of “the concern that if ET’s children were required to leave the classroom every time one of these topics came up for discussion, the Board’s policy of providing an inclusive and non-discriminatory program would be undermined” (para 3). The ONCA dismissed the claim for evidentiary reasons, with the majority (Lauwers and Miller JJ.A.) making a number of important observations about the relationship between provincial education, freedom of religion, and parental autonomy (as discussed further in this article). The authors were co-counsel for Christian Legal Fellowship's intervention in ET.
2 Ibid, at para 65 per Lauwers and Miller JJ.A.
3 R v Audet,  2 SCR 171, at p196, cited with approval in ET at para 67.
4 B(R) v Children’s Aid Society of Metropolitan Toronto,  1 SCR 315 at p 370. See also Chamberlain v Surrey School District No. 36, 2002 SCC 86 per Gonthier J (dissenting but not on this point) at paras 102-103 and 108.
5 R v Jones,  2 SCR 284 at para 63 per La Forest J; cited with approval in ET at para 69 per Lauwers and Miller JJ.A.
6 ET at para 51.
7 ET at paras 46 and 64 (emphasis added).
8 John Sikkema, “Ontario’s Highest Court: Public Education is Not Neutral”, ARPA Canada, online: https://arpacanada.ca/news/2017/11/28/ontarios-highest-court-public-education-is-not-neutral/
9 Dr. Glenn Watson, Report of the Ministerial Inquiry on Religious Education in Ontario Public Elementary Schools (January, 1990) at p 57 and 50, cited in ET at paras 62-63 (emphasis added).
10 See, for example, SL v Commission scolaire des Chênes, 2012 SCC 7.
11 Obergefell v. Hodges, 135 S. Ct. 2584 (2015) per Kennedy J. for a majority of the Supreme Court of the United States. See further discussion in Ryan Anderson, “Disagreement Is Not Always Discrimination: On Masterpiece Cakeshop and the Analogy to Interracial Marriage” (2018) 16 Georgetown J. Law & Pub. Pol’y 123. See also Canada’s Civil Marriage Act, SC 2005, c 33 which affirms that “it is not against the public interest to hold and publicly express diverse views on marriage.”
12 ET at paras 92 and 100.
13 Loyola High School v Quebec (Attorney General), 2015 SCC 12, at para 47.
14 See ET, supra.
15 Chamberlain v Surrey School District No. 36, 2002 SCC 86, dissent at para 134: “Language appealing to “respect,” “tolerance,” “recognition,” or “dignity,” however, must reflect a two-way street in the context of conflicting beliefs, as to do otherwise fails to appreciate and respect the dignity of each person involved in any disagreement, and runs the risk of escaping the collision of dignities by saying “pick one.” But this cannot be the answer.”
16 Ontario Human Rights Commission, “Policy statement on religious accommodation in schools,” online: http://www.ohrc.on.ca/en/policy-statement-religious-accommodation-schools
17 R v Goldfinch, 2019 SCC 38 at para 186, citing E. Craig, “Capacity to Consent to Sexual Risk” (2014), 17 New Crim. L. Rev. 103; J. Sealy-Harrington, “Tied Hands? A Doctrinal and Policy Argument for the Validity of Advance Consent” (2014), 18 C.C.L.R. 119, at p 145.
18 R v Goldfinch, 2019 SCC 38 at para 185
19 See Trinity Western University v The Law Society of British Columbia, 2016 BCCA 423 where the BC Court of Appeal observed that, in the context of their views regarding marriage, “the members of the TWU community constitute a minority” (para 178).
20 Supra note 11.
21 Amy Anderson, Dallas K. Miller, Dwight Newman, “Canada’s Residential Schools and the Right to Family Integrity” (2018) 41 Dalhousie L.J. 301 at 320. The authors trace the development of legal and social perspectives of the state toward the parent-child relationship. They also point to international law treaties and declarations that help to inform a robust understanding of family integrity and its associated parental choice concerning education. While the authors go on to apply that framework to Indigenous communities in the context of residential schools, the “inherent human right to family integrity” they delineate recognizes important independent principles that can be applied to other contexts as well.
22 Ibid. at 321.
23 Article 16(3), 26(3) (emphasis added).
24 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948) 71 [“UDHR”].
25 R v Big M Drug Mart Ltd.,  1 SCR 295 at para 96.
Derek Ross, LL.B., LL.M., is Executive Director and General Counsel for Christian Legal Fellowship. He is a member of the Ontario Bar and serves on the executive of the CBA and OBA Constitutional and Human Rights sections.
Deina Warren, LL.B., LL.M., earned her Bachelor of Laws degree from the University of Ottawa and articled as a law clerk in the Superior Court of Justice. Her practice has focused on Constitutional and Administrative Law as well as legal research and writing; she now practices in the charitable law sector.