Indexed as:
                       Fancy v. Saskatoon School Division No. 13

                     IN THE MATTER OF the Hu...
Saskatchewan Act, R.S.C. 1985, App. II, No. 21., which
               incorporated s. 137 of The School Ordinance, O.N.W.T...
We are supporters of the Saskatoon Public Board of Education. We
                  are concerned with the present practice...
passed in the year 1901, or with respect to religious instruction in
             any public or separate school as provide...
only in detail. The evidence is not refuted. Generally, school assemblies, which occurred
at differing hours, would commen...
she chose not to be excluded from her class. She expressed to the Board of Inquiry her
feeling that it was "not right .......
with religion in a public school as this was the whole point of going public, rather than
separate.

¶ 20 Megan Williams w...
children exposed to prayers of other religions, and some did not want their prayers used
by non-believers.

¶ 25 Over the ...
1953 to persuade the Board of Education to delete the Lord's prayer and Bible readings
from public schools. He personally ...
¶ 36 Dr. Mock, also explained her views on Human Rights Code violations which arise
where freedom of religion is impinged ...
¶ 43 Code s. 31(7) expects the Board of Inquiry to make orders requiring compliance
by those who have been found in contra...
board may be given.

         (2) It shall however be permissible for the board of any district to
     direct that the sc...
Minister of Finance, W.S. Fielding;
"That authority for religious instruction is not confined to separate schools;
it appl...
Commons Hansard, March 24,1905, p 3103

     "This section preserves the right of the Protestant or Roman Catholic
     mi...
Commons Hansard, June 29, 1905, p. 8497

¶ 54 These political pronouncements leave no doubt the law makers were determined...
versions of s. 137. The Board of Inquiry acknowledges the research and preparation by
Counsel for the Attorney General for...
The School Ordinance, O.N.W.T. 1885, c. 3.

¶ 64 The 1885 Ordinance omitted the provision for prayer at the beginning of t...
not part of the section dealing with religious instruction. Nor was it used in the 1884
Ordinance, which did not have any ...
7. Section 85 of the said Ordinance is hereby amended by added thereto
     the following words;-- "It shall, however, be ...
assembly in the gym around 9; 15 am. If so, there will be no prayer in the classroom.
Instead, the assembly commences with...
advance of the students proceeding to the gym for assembly. This is so even when
assembly is around 9; 15 am. Assembly at ...
reciting without comment or explanation, of the Lord's Prayer or a
           passage selected from Bible readings that ha...
and operation of the "religious instruction" right, as contemplated by "living tree"
parameters. This approach sounds prac...
Religious activities which constitute acts of worship and/or the
     propagation of dogma are not the function of the pub...
Costs

¶ 102 All parties, save the Attorney General, have requested costs. For the Board of
Education it is contended that...
include use of any prayer or readings from any form of bible. If amendments are
requested to the Education Act to achieve ...
9)   The Board of Inquiry recommends that;

           a) the Legislature of Saskatchewan repeal s. 182(3) of the Educatio...
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Fancy V Saskatoon School Division No 13

  1. 1. Indexed as: Fancy v. Saskatoon School Division No. 13 IN THE MATTER OF the Human Rights Code AND IN THE MATTER OF complaints on December 21 and 22, 1993 By: Riaz Fancy and Irum Fancy, Larry Haiven, Rosanna Langer and Jeff Langer, Sharon McLachlan and David McLachlan and Carl L. von Baeyer and Deborah Lake, complainants, and Saskatchewan Human Rights Commission, against The Board of Education of Saskatoon School Division No. 13 of Saskatchewan, respondent, and The Attorney General for Saskatchewan, Congregation Agudas Israel, League for Human Rights of B'Nai Brith Canada, Unitarian Congregation of Saskatoon, and Saskatchewan School Trustees Association, intervenors Saskatchewan Human Rights Board of Inquiry K.R. Halvorson July 23, 1999. (33 pp.) Appearances: D. Moore, for the Saskatchewan Human Rights Commission. E. Holgate, for the complainants. L. Beriault, for the respondent and Saskatchewan School Trustees Association. T. Irvine, for the intervenors, Congregation Agudas Israel and League for Human Rights of B'Nai Brith Canada. Self-representation, Intervenor, Unitarian Congregation of Saskatoon. BOARD OF INQUIRY DECISION ¶ 1 This Board of Inquiry was constituted pursuant to the provisions of The Saskatchewan Human Rights Code, SS. 1979, c. S-24.1, for the purpose of adjudicating on the complaints of several parents against the use of Lord's prayer and Bible readings in Saskatoon public schools. ¶2 There are two issues to be resolved by this tribunal; a) Did the Board of Education of Saskatoon School Division No. 13 of Saskatchewan ("the Board of Education") interfere with the Complainants' right to freedom of religious practice and deny their childrens' right of education without discrimination because of religion, as guaranteed by ss. 4 and 13 of The Saskatchewan Human Rights Code, by sanctioning the use of the Lord's prayer and Bible readings in public schools? b) If there was discrimination, is it excused by s. 17 of the
  2. 2. Saskatchewan Act, R.S.C. 1985, App. II, No. 21., which incorporated s. 137 of The School Ordinance, O.N.W.T. 1901, c. 29? Jurisdiction ¶ 3 jurisdiction of the Board of Inquiry to embark on this hearing is challenged by the Board of Education. Reliance is placed on the Supreme Court of Canada decision in Cooper v. Canada (Human Rights Commission, [1996] 3. S.C.R. 854. There, the court ruled that the Human Rights Commission had no authority to determine the constitutional validity of its enabling statute. In effect, the court agreed the commission could not pursue an age discrimination complaint because to do so would require the commission to find that a Human Rights Code exemption from age discrimination was unconstitutional as it contravened the Charter protection against this form of discrimination. ¶ 4 The Board of Education contends this is the very dilemma confronting this Board of Inquiry. A ruling must be made that ss. 4 and 13 of the Code are unconstitutional insofar as they affect the Board of Education rights under s. 17 of the Saskatchewan Act, according to the Board of Education argument, and this is precisely what Cooper forbids. This analogy with Cooper is inappropriate because the underlining assumption is inaccurate. The Board of Inquiry will not be called upon to decide the validity of Code sections. Rather, the Board of Inquiry will be obliged to interpret the Saskatchewan Act and decide whether it provides an exemption from the Code. Support for this approach is found in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038. Moreover, in Cooper, the Code section was illegal for all purposes because it contravened the Charter; whereas, the Code sections in the instant case are not subject to a ruling of illegality, but only to a finding that they are unenforceable insofar as they conflict with the Saskatchewan Act. ¶5 The preliminary objection to the jurisdiction of the Board of Inquiry is dismissed. Complaints ¶ 6 Proceeding with the substantive case, the complaints of the parents are framed in these terms: "3. The complainants allege that children attending the Public School System do not enjoy the right to freedom of conscience, opinion and belief and freedom of religious association, teaching, practices and worship and that they have been discriminated against because of their creed and religion. 4. The particulars of the alleged violation are as follows;
  3. 3. We are supporters of the Saskatoon Public Board of Education. We are concerned with the present practice of the Saskatoon Board of Education's policy which encourages and supports Bible readings and the use of the Lord's Prayer in classrooms. We have reasonable grounds to believe, and we believe that this policy interferes with our right to freedom of conscience, opinion, and belief and freedom of religious association, teaching, practice and worship, contrary to Section 4 of The Saskatchewan Human Rights Code and that our children are being denied the right to enjoy an education without discrimination because of their Creed and Religion contrary to Section 13 of The Saskatchewan Human Rights Code." ¶7 Ss. 4 and 13 of the Code read as follows; "4 Every person and every class of persons shall enjoy the right to freedom of conscience, opinion and belief and freedom of religious association, teaching, practice and worship. 13 (1) Every person and every class of persons shall enjoy the right to education in any school, college, university or other institution or place of learning, vocational training or apprenticeship without discrimination because of his or their race, creed, religion, colour, sex, sexual orientation, family status, marital status, disability, nationality, ancestry, place of origin, or receipt of public assistance." (emphasis added) ¶ 8 It is the position of the Board of Education that discrimination arising from recitation of the Lord's prayer or reading from the Bible during the school day is protected from censure under the Code as a consequence of the constitutional legislation which brought Saskatchewan into Confederation in 1905. Particularly, s. 17 of the Saskatchewan Act, together with s. 137 of the 1901 School Ordinance, override the provisions of the Code on this issue. These sections read; "17. Section 93 of the Constitution Act, 1867 shall apply to the said province, with the substitution for paragraph (1) of the said section 93, of the following paragraph. (1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the North-west Territories,
  4. 4. passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances." (emphasis added) Religious Instruction 137. No religious instruction except as hereinafter provided shall be permitted in the school of any district from the opening of such school until one half hour previous to its closing in the afternoon after which time any such instruction permitted or desired by the board may be given. (2) It shall however be permissible for the board of any district to direct that the school be opened by the recitation of the Lord's prayer. 138. Any child shall have the privilege of leaving the school room at the time at which religious instruction is commenced as provided for in the next preceding section or of remaining without taking part in any religious instruction that may be given if the parents or guardians so desire. 139. No teacher, school trustee or inspector should, in any way attempt to deprive such child of any advantage that it might derive from the ordinary education given in such school and any such action on the part of any school trustee, inspector or teacher shall be held to be a disqualification for and voidance of the office held by him." The School Ordinance, O.N.W.T. 1901, c. 29 ¶9 The original s. 93 of the Constitution reads this way; "93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions;-- (1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union;" Facts Respecting Discrimination ¶ 10 Turning now to the factual foundation of religious discrimination embodied in the first question to be answered by the Board of Inquiry. Included among the witness who testified, were former public school students, current students, and parents of children who attended public schools. Their experiences were essentially the same with variations
  5. 5. only in detail. The evidence is not refuted. Generally, school assemblies, which occurred at differing hours, would commence with singing the national anthem followed immediately by recitation of the Lord's prayer. There was evidence as well, of teachers reading the Bible to pupils in the classroom. ¶ 11 Max Haiven, aged 17, attended Holliston School for grades two to six and Brunskill School for grades seven and eight. At Holliston he said, "assemblies were held about every three weeks and usually just before or after lunch break. Once the students had gathered in the gym, they were instructed to stand for O'Canada and remain standing for the Lord's prayer." Max, who is Jewish, would stand respectfully, but would not bow his head or repeat the prayer. On one occasion, a substitute teacher told him it was impolite not to bow. He complained to the principal who said Max could be exempted, but he was not informed until much later that he could leave the gym. Leaving caused confusion for him anyway, because he did not know where to go, or with whom, so he did not exercise the right. Instead, he put up with the coercion. At Brunskill School the assembly process was similar but rarely held in the mornings, according to Max. By this time, however, the assembly leaders were telling students to stand for the Lord's prayer "or the prayer of their choice." The Lord's prayer was read over a loud speaker. Max never said a prayer of choice, nor did he observe anyone else doing so. ¶ 12 Max explained to the Board of Inquiry why he was offended by this use of the Lord's prayer. Brunskill School was especially multicultural due to its proximity to the University of Saskatchewan. Max believed the school should not impose on him or others, a value system which was not theirs and which left them feeling segregated. ¶ 13 To say that Max and the other student witnesses were impressive, is an understatement. All expressed in an articulate and impassioned manner their objection to confronting the Lord's prayer at school. They may well have reflected the views of their parents, but there is no doubt they now adopt the views as their own. ¶ 14 Emma Langer is only eleven, but she was the equal of the older students. She is Jewish, but mostly non-practicing. Since grade two she has been attending College Park School. It was her testimony that in grade two a typical school day would start as follows; the bell would ring; children would go to their classroom; in her room the teacher would choose a student assistant; attendance would be taken; the Lord's prayer would be recited and the anthem sung. Emma chose to sit down during the prayer. No other option was offered despite the fact there were five minority group children in her class; Jews, a Muslim, an oriental and an aboriginal person. On one occasion a substitute teacher asked why Emma was not standing like the others. ¶ 15 Emma explained how assemblies operated in her school. After attendance was taken in the classroom, a student captain was selected by the teacher to head the lines to the gym. Emma was never chosen. If there was to be an assembly, the anthem and Lord's prayer did not occur in the classroom, but at the beginning of the assembly instead. Assemblies were held every two or three weeks, usually just after 9;00 am. Emma would stand for the Lord's prayer, but not bow. Although she was aware she could be exempted,
  6. 6. she chose not to be excluded from her class. She expressed to the Board of Inquiry her feeling that it was "not right .... with all the religions to exclude some ......... They would be looked down on." ¶ 16 Rebecca von Baeyer Lake, is seventeen and a member of the Unitarian Church. She attended Holliston School for grades one to seven, then Brunskill for grade eight. Her recollection of the Holliston assembly prayer ritual mirrors that of Max. There were no prayers in the classroom. In grade three she was a member of a group of pupils which met with the principal to request that the Lord's prayer cease at assemblies, but nothing changed; the principal informed the group that a majority was Christian. ¶ 17 Rebecca was aware that she could be exempted from participation by leaving the room, remaining silent, or in later years, by using a prayer of her choice. All of these three possibilities were problematic for her. Once in grade eight she voiced a prayer of her choice and was immediately reprimanded by a teacher. She considered it disrespectful to leave during the Lord's prayer; anyway, there was no time between the anthem and the prayer. Leaving the room was to her, akin to punishment. To stand silent was offensive too, because for her, prayer should not be a passive event. In the end, Rebecca sought no exemption, and simply stood in silence during the Lord's prayer without bowing. She indicated 14 different languages were spoken by various Brunskill pupils, and some took advantage of the exemption at the suggestion of their teachers. Rebecca testified eloquently to the Board of Inquiry respecting the hypocrisy of the Board of Education in its promotion of learning about cultural diversity but reflecting none of these values in the handling of the Lord's prayer issue. ¶ 18 Andrea Quinlan related her experience with the Lord's prayer at Brunskill school during grades two to eight. She is entering grade 10, and comes from a home which does not have a one-belief religious system. Assemblies were usually at 9;00 am, but some were at other times. This is somewhat different from Max's recollection. The Lord's prayer ritual was similar to that described by the other witnesses. Until grade eight she dutifully stood with head bowed; in that grade she sat down for the prayer, but her friends took offence. She did not feel comfortable talking to the teacher about an exemption. Andrea expressed the view that because Brunskill was a multicultural school, she felt it was unfair to focus on one religion. In her class of about 30, there was Muslims, Jews and Christians. ¶ 19 Mika Settee-Usiskin took grade seven and eight at Brunskill School. Her father is Jewish and her mother is part Cree. The family is not religious on either side, but celebrates Christmas. She said assemblies usually, but not always, began with the Lord's prayer. She confirmed too, that attendance was taken in the classroom before students went to the gym for assembly. Mika was not raised with the Lord's prayer and did not know the words. She sat down for its recitation. According to her, others gave her "looks" but said nothing. She was unaware of exemption rights, but asked a teacher if she could remain in the hall. In response, she was told to stay and say a prayer of choice. Mika expressed to the Board of Inquiry her conviction that she should not have to be involved
  7. 7. with religion in a public school as this was the whole point of going public, rather than separate. ¶ 20 Megan Williams was the final student witness. She is aged 17, and spent grades two to four at Brunskill School, and five to eight at Greystone School. In grade four, the teacher began the day with the Lord's prayer after taking attendance; then read Bible stories to the class around 10:30 am. For the readings, children had the option of standing in the hallway, which three to five did. To paraphrase Megan, "it struck me like punishment because this was the punishment for talking in class." Megan related an anecdote where a Muslim child in her class mispronounced the word "Christ" in a Christmas pageant and was informed by the teacher he would be taken out of the play if he did not have respect. ¶ 21 Megan also recalled an occasion in grade seven at a Greystone School assembly, held usually at 10;30 a;m, where Muslim students bowed their heads for the Lord's prayer. This struck Megan as something to which their parents might object. According to Megan, Greystone has a large number of children who are not Christian or West European, but has many who are Muslim, Jewish or other ethnic origin. She is of the opinion, from her observations, that the attitude of children from other backgrounds, to the Lord's prayers in school, is that it is merely an exercise, an automatic practice. ¶ 22 In addition to these students, five parents recounted their tribulations with schools on the discrimination issue. Rosanna Langer told of being a member of a group of parents who had been trying since 1992 to convince the Board of Education to discontinue the Lord's prayer in public schools. The group covered the spectrum of Jews, Muslims, atheists, Unitarians and Christians. Meetings with the Board of Education achieved no positive results. A Board of Education proposal to diffuse the situation by including multicultural teaching is seen by Langer as inappropriate as it continues discrimination. ¶ 23 Langer is of Jewish persuasion, and she learned first hand the conflict of standing at assemblies while the Lord's prayer was recited. She tried there to model behaviour for herself and her child which would be respectful, but without participating. Exemption from the assembly was not a reasonable alternative. Langer complained to a teacher at Sutherland School that the Lord's prayer in the classroom and assemblies was contrary to her beliefs. Again, exemption of her child was discussed, but rejected because the manner of exclusion was unclear. Similar complaints at College Park School met with similar options. ¶ 24 Karl von Baeyer had children at Brunskill and Holliston Schools from 1987 to 1993. He is a member of the Unitarian Church and had written to a school superintendent as early as 1982 expressing concern about discriminatory religious practices in the public school system. In 1986, he met with the Director of Education and provided to him a book of multi-faith readings then in use in Toronto, suggesting consideration be given to its distribution in public schools. Instead, the Board of Education reconfirmed its encouragement for the Lord's prayer in school. Von Baeyer has since learned that the book is no longer used in Toronto because of protests. Some parents did not want their
  8. 8. children exposed to prayers of other religions, and some did not want their prayers used by non-believers. ¶ 25 Over the years, von Baeyer communicated with school principals but the invariable response was they had a discretion and would exercise it in favour of the Lord's prayer because in their interpretation of surveys, that is what the majority of parents supported. These efforts by von Baeyer suggest to the Board of Inquiry that the faction he represented was at least trying to arrive at some compromise on the controversy. ¶ 26 Von Baeyer says he would welcome the teaching of comparative religion in public schools, but objects to the forced use of the Lord's prayer because it gives a bad impression of Christian tolerance. As well, he says that for children, it engenders split loyalties between teachers and minority parents. ¶ 27 Larry Haiven testified how his son, Max, had questioned him on whether he must say the Lord's prayer at assemblies. They asked the principal to use his discretion to suspend the use of the prayer, but he declined. Haiven recalled how he too, had to endure the Lord's prayer when he was a student, but his parents were recent immigrants, who felt that they should go along with the majority. He receives nasty phone calls for expressing his views and has suffered emotionally. ¶ 28 Pat Englund, described herself as an atheist but celebrates Christmas and Easter. She was upset when her grade two son reported his teacher was reading Bible stories to his class at Brunskill School. Englund was anxious over the effect the readings might have on the child who had not been exposed to religion. She asked that the Lord's prayer and the readings cease. The readings did. When she raised again the Lord's prayer objection, the principal informed her it was the teacher's right to give Bible readings to the class, and if Englund did not leave the Lord's prayer issue alone, the readings might be reinstated. It is her information that there were prayers in the classroom this past school term. She attended assemblies and tried self prayer, but this proved futile. She acknowledges awareness of exemption provisions but did not utilize them for her son because he would "stick out and be teased." ¶ 29 Sharon McLachlan attended most assemblies when her children went to Wildwood School. Assemblies were held mostly at 9;15 am and commenced with the Lord's prayer. She had no structured religious background, but felt obliged to stand for the Lord's prayer at assemblies because everyone else did. While she was reading to her son on an occasion, he got the Bible and asked her to read the names to see if he recognized the ones that his teacher read. This concerned her. She recalls her own feeling of being different in grade four when the resurrection was being discussed in class at Easter, and she knew nothing about it. Englund prefers to follow the golden rule and instructs her children according. Rather than seeking, exemption, her children comply. ¶ 30 Grant Scharfstein, a lawyer and member of the Congregation Agudas Israel, presented archival evidence of the unsuccessful efforts by the Jewish community since
  9. 9. 1953 to persuade the Board of Education to delete the Lord's prayer and Bible readings from public schools. He personally attended a 1992 Board of Education meeting where the advocate for the Jewish position endured cat calls and shouts to "sit down." A rousing ovation was given to the Board of Education when it announced a continuation of the existing practice. Scharfstein commented he did not feel good about being Jewish in that setting. He told as well, a story about when he was in public school in a small Saskatchewan town: a teacher informed him that he did not have to say the Lord's prayer, but he said he would. On his way home he was punched and called a "dirty Jew" ¶ 31 Scharfstein's children went to Silverwood Heights School. No option from saying the Lord's prayer was given at the numerous assemblies he attended. His children repeat the Lord's prayer so as not to be seen as different. In grade one the teacher read from both the Old and New Testaments, and in kindergarten all the children were taught the words to the Lord's prayer. When his daughter was in grade five, Gideon Bibles were duly distributed to the pupils. The teacher stated that two children in the class did not believe in the Bible, and so would not receive one. They were his daughter and a Jehovah's Witness. ¶ 32 Rabbi Roger Pavey laid to rest for the Board of Inquiry any notion that the Lord's prayer was generic or ecumenical. He underscored that the prayer was purely Christian and certainly not accepted by other religions. For example, he said some of the English translation words have different connotations in Jewish theology, and some phrases are meaningless to other faiths. He was also adamant that prayers are an act of worship, not academic exercises. For prayer to be meaningful, it must be free and voluntary, not coercive. He favours promoting spirituality in schools, but imposing the Lord's prayer does not attain that goal. ¶ 33 Dr. Karen Mock is the National Director of the League for Human Rights of B'Nai Brith Canada. She has considerable experience and knowledge on multicultural school issues. Not surprisingly, she condemned the Board of Education practice of encouraging the Lord's prayer and Bible readings in the public school system. Her observations were analytical and presented without rancor. She found the practice offensive from the point of view of an educator, a psychologist and from a human rights perspective. ¶ 34 Modern educators take the child centered approach that each child has an equal right to develop self esteem. If one group is dominant, its religion can be seen by the minority as more important, engendering a desire by the minority to be part of that group. An inclusive curriculum can combat this so every child thinks her group is equally valued. ¶ 35 There are also psychological effects from the emphasis on one dominant religion. The minority may feel a lack of self-esteem fostering identity crisis and rejection of their faith. Even the dominant group can suffer adversely. A feeling of superiority can lead to school yard bullying, demeaning of others, and later, even totalitarianism.
  10. 10. ¶ 36 Dr. Mock, also explained her views on Human Rights Code violations which arise where freedom of religion is impinged by expectations that everyone should say the Lord's prayer. Even exemptions she contends, raise issues of unequal treatment. The Board of Education owes a moral obligation to give each child an equal opportunity. ¶ 37 Dr. Mock had little patience for the position that a majority of parents favour the Lord's prayer in schools, so the democratic process is simply at work. She prefers to label this "the tyranny of the majority." It allows the majority to have a quality education, and ensuing damage to the minority is an acceptable loss. Those in the majority may feel that the minority seeks to undermine them, but the issue is really about extending the same rights to all, according to Dr. Mock. ¶ 38 This overwhelming evidence of discrimination should be tempered by the realization that the Board of Education elected to call no rebuttal and to severely restrict cross examination. One reason for this is the Board of Education scarcely disputed there was discrimination, although it pleaded otherwise, and preferred to advance its case as a question of constitutional law. Had the Board of Education played the usual adversarial role in the tendering of evidence, a more balanced impression might have been conveyed. ¶ 39 Be that as it may, the Board of Inquiry is satisfied the complaints of discrimination have been substantiated, far beyond the required burden of balance of probabilities. ¶ 40 In response to the first issue earlier stated, the Board of Inquiry finds that the Board of Education interfered with the complainants' right to freedom of religious practice and denied their childrens' right of education without discrimination because of religion, contrary to ss. 4 and 13 of the Code, by sanctioning the use of the Lord's prayer and Bible readings in public schools. ¶ 41 This is in keeping with the comments of Dickson C.J., in R. v. Big M Drug Mart Ltd (1985)1 S.C.R. 295 at page 336; "The essence of the concept of freedom of religion is 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 .... Freedom in a broad sense embraces both the absence of coercion and constraint." ¶ 42 And at page 347; "... equally protected.... are expressions and manifestations of religious non-belief and refusals to participate in religious practice." Constitutional Law
  11. 11. ¶ 43 Code s. 31(7) expects the Board of Inquiry to make orders requiring compliance by those who have been found in contravention of the Code. Can this Board of Inquiry order the Board of Education to cease its discriminatory practice of using the Lord's prayer and Bible readings in public schools? That raises the second issue before the Board of Inquiry as to whether the discrimination is excused by the 1905 Saskatchewan Act. ¶ 44 Several legal principles should be noted at this juncture. The Saskatchewan Act created the province and set the terms of its entry into Confederation. Accordingly, the Act forms part of the Canadian Constitution (see Constitution Act, 1982, R.S.C. 1985, App. II. No. 44). Constitutional status clothes the Saskatchewan Act with a priority over ordinary legislation. This paramountcy is prescribed in s. 52 (I) of the Constitution, in these words; "52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect." ¶ 45 In contrast, the Code contains s. 44 which asserts its priority in these terms: "44 Every law of Saskatchewan is inoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act unless it falls within an exemption provided by this Act, or unless it is expressly declared by an Act of the Legislature to operate notwithstanding this Act." ¶ 46 Clearly, s. 52 (1) trumps s. 44 where there is conflict. ¶ 47 But, ss. 2 and 15 of the Canadian Charter of Rights and Freedoms are similar in content to s. 4 and 13 of the Code. Therefore, a question arises, whether these subsequent Charter provisions could implicitly alter s. 17 of the Saskatchewan Act. That is, can one constitutional segment, namely the Charter, modify another segment, namely the Saskatchewan Act? The Supreme Court of Canada has responded declaring that one part of the Constitution cannot displace another; all provisions must be read together and given effect (see Reference re Bill 30, An Act to amend the Education Act, [1987] 1 S.C.R. 1148, and Adler v. Ontario, [1996] 3 S.C.R. 609). ¶ 48 In light of all this, Code ss. 4 and 13 could only supercede the Saskatchewan Act if it was established that s. 137 (2) of the 1901 Ordinance was not intended to have constitutional stature. For the sake of convenience, ss. 137, 137 (2) and 138 are repeated here; Religious Instruction 137. No religious instruction except as hereinafter provided shall be permitted in the school of any district from the opening of such school until one half hour previous to its closing in the afternoon after which time any such instruction permitted or desired by the
  12. 12. board may be given. (2) It shall however be permissible for the board of any district to direct that the school be opened by the recitation of the Lord's prayer. 138. Any child shall have the privilege of leaving the school room at the time at which religious instruction is commenced as provided for in the next preceding section or of remaining without taking part in any religious instruction that may be given if the parents or guardians so desire. (emphasis added) The Lord's prayer ¶ 49 To assist the Board of Inquiry in its endeavour to rectify the discriminatory situation, the Human Rights Commission advanced a submission which denies the constitutional status of the Lord's prayer s. 137 (2). It appears to be uncontested, that s. 137 enjoys full constitutional authority. ¶ 50 This submission adopts a study prepared for the Commission by scholars, R.W. Bauman, and D. Schneiderman, a revision of which is published in 1996, S.L.R. vol. 60(2), 265. The authors conclude 137 (2) does not immunize recitation of the Lord's prayer from the prohibitions in the Code. Interestingly, the Commission held the opposite view a few years earlier. According to the authors' analysis, the legislators in 1905 did not intend that the Lord's prayer should be included in the term "religious instruction" entrenched in s. 137. By placing the Lord's prayer in the separate clause s. 137(2), the legislators meant to bestow a less than entrenched status. ¶ 51 In addition to reviewing the legislative history of the sections, the authors considered parliamentary debates to ascertain what the legislators intended to entrench by s. 17 of the Saskatchewan Act. References to Hansard can be used in interpreting constitutional provisions (see Reference re Motor Vehicle Act, [1985] 2 S.C.R. 486). ¶ 52 S. 17 of the Saskatchewan Act was the subject of vigorous debate in the House of Commons and underwent several drafts before passage in the present form. An earlier version precipitated the resignation from cabinet, of a prominent western member who was not convinced the wording guaranteed the secular school system then in place in the North West Territories. Insertion of the clarifying phase at the end of s. 17 satisfied the member and a government crisis was averted. ¶ 53 According to the Commission, a reading of the debates during parliamentary deliberation on the Autonomy Bills creating Saskatchewan and Alberta, tends to show entrenchment of the Lord's prayer clause was never intended. The Attorney General for Saskatchewan refers to the same Hansard excerpts to draw precisely the opposite conclusion. So much for the weight to be given to debates!. Anyway, this is what influential politicians of the day had to say about s. 17;
  13. 13. Minister of Finance, W.S. Fielding; "That authority for religious instruction is not confined to separate schools; it applies to all schools in the Territories. It is provided that wherever the trustees so wish, wherever the local conditions permit, there shall be religious instruction in all schools in the Northwest Territories, not in the minority schools only. Then there is a further Provision that all schools may be opened with the reciting of the Lord's prayer. Does anybody object to that? I hope not; I trust that in any case where the trustees of a school authorized that, it is not objectionable. But then there is this half hour of religious education. From the hour at which these schools open in the morning up to half-past three in the afternoon they are absolutely alike; there is no difference; the teachers have the same duties, the same qualifications; the same examinations, the same course of study, the same books are prescribed by the government, the regulations are made by the government, the inspector is appointment by the government. I repeat that from the hour of opening in the morning up to half-past three in the afternoon there is no shade of difference in all these schools in the Northwest Territories." (emphasis added.) Commons Hansard, March 22, 1905, p. 3002. Minister of the Interior, C. Sifton; "Let me give what I conceive to be an accurate resume' of the principles which are enforced and carried out by these ordinances. We have one normal school with uniform normal training for all teachers, and when I say all teachers, I mean teachers of all schools, separate and public; uniform curricula and courses of study for all schools of the same grade; uniform text books for all schools; uniform qualification of teachers for all schools; complete and absolute control of all schools as to their government and conduct, by the central school authority set up by the legislature under the ordinances; complete secularization of all schools between 9 o'clock in the morning and 3;30 in the afternoon, except that any school, if the trustees so desire, may be opened with the Lord's prayer; distribution of the legislative grant to all schools according to educational efficiency on principles set out in chapter 3 I. They are absolutely similar save for one distinction; where the trustees are Protestant, there is Protestant teaching from half-past three to four, and where the trustees are Roman Catholic there is Roman Catholic teaching from half-past three to four. That is absolutely the only distinction between these schools." (emphasis added)
  14. 14. Commons Hansard, March 24,1905, p 3103 "This section preserves the right of the Protestant or Roman Catholic minority to have their school, a separate school in name, but a public school in fact, in a separate building if they wish. That is the right it preserves. It preserves, secondly, the right of the Protestant or Roman Catholic minority in such school to have religious teaching from 3.30 to 4 o'clock in the afternoon." Commons Hansard, March 24,1905, p. 3107. Minister of Justice, C. Fitzpatrick "My object was to make section 93 applicable, and my object was also to avoid a repetition of the Manitoba difficulty. I wanted to perpetuate the existing conditions, with which everybody in the Territories professes to be satisfied." Commons Hansard, May 3, 1905, p. 5344 "The rights and privileges which result from the right of effecting the separation, and which the proposed substituted clause 16 [later s. 17] preserves to the minority, whether Protestant or Roman Catholic, in a public school district, appear to be these;- (1) Right of separation - by the ordinance - common to Protestants and Roman Catholics alike; (2) Half-hour religious instruction - by ordinance - to Protestants and Roman Catholics alike; common to public and separate schools; (3) First and second Catholic readers - regulation; (4) Right to elect trustees, who choose the teacher - by ordinance; common to all schools." Commons Hansard, May 15, 1905, p. 5985 Prime Minister, Sir Wilfred Laurier; "What is the character of the religious instruction they may have? That is a question altogether for themselves to decide ... [w]e can at all events agree that it is not a bad thing in itself that opportunity should be given for religious instruction at a certain hour, if the parents so desire it. This is now the law of the Northwest Territories, it has been the law for nearly fourteen years, or more; I venture to think it has been the law since 1885, and this is the law which it is now sought to perpetuate in this amendment."
  15. 15. Commons Hansard, June 29, 1905, p. 8497 ¶ 54 These political pronouncements leave no doubt the law makers were determined to preserve in the new Saskatchewan, the secular system of education under which the Territories were then functioning. Great care was taken to ensure the Saskatchewan Act did not inadvertently permit a re-introduction of denominational schools. The only religious instruction permitted was as delineated in the 1901 Ordinance. ¶ 55 There is a ring of desperation to the argument which suggests the minimal reference to the Lord's prayer in the debates lends support for the proposition that the Lord's prayer section was never intended to be included in the definition of "religious instruction" which was thoroughly debated. It is more likely the scant reference to the Lord's prayer is simply indicative of wide consensus for its inclusion in the Constitution. ¶ 56 Applying the plain meaning of the words in ss. 137 and 137(2) furnishes a stronger footing than does parliamentary debate in the argument whether the Lord's prayer was meant to be included in the phrase "religious instruction." ¶ 57 The Commission would have it that "except as hereinafter provided" in s. 137 refers to the "one-half hour" of instruction but not to the Lord's prayer in s. 137(2). In effect, the Lord's prayer is hived off and can be treated differently for constitutional purposes. The Attorney General contends "except as hereinafter provided" refers to s. 137(2), so the Lord's prayer is meant to be part of the preceding phrase "religious instruction." The words "except as hereinafter provided" are unnecessary and could be omitted if they simply refer to the "one-half hour." In the view of the Attorney General, the purpose of "except as hereinafter provided" is to permit use of the Lord's prayer at the beginning of the school day because the prayer would otherwise be prohibited until the end of the day by s. 137. Furthermore, the word "however" in s. 137(2) would be superfluous if the Lord's prayer was not part of "religious instruction" and, therefore, forbidden by s. 137. "However," means that despite the prohibition against religious instruction before the last half-hour of the day, the Lord's prayer can be said at opening of the school. "However," and 'except as hereinafter provided" are interlocked. ¶ 58 Additionally, the Attorney General contends the use of the words "as provided for in the next preceding section" contained in the exemption clause, s. 138, is referable to the entirety of s. 137 without distinction for the Lord's prayer in s. 137(2). So, it may be said "religious instruction" includes the Lord's prayer. If the Lord's prayer is not part of "religious instruction," then the failure of s. 138 to specify an exemption for s. 137(2) would mean there is no exemption allowed for students who do not wish to participate in the Lord's prayer exercise, an unlikely intention. Finally, s. 137 through s. 139 have a heading "Religious Instruction," which suggests s. 137(2) is part of"religious instruction." Section headings may be used to help find the object of a statute (see Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357). ¶ 59 A more compelling reason to deduce that the legislators intended the Lord's prayer to be included in the phrase "religious instruction" is they clearly said so in prior
  16. 16. versions of s. 137. The Board of Inquiry acknowledges the research and preparation by Counsel for the Attorney General for the following analysis of the legislative history of precursors to s. 137. ¶ 60 The starting point for the legislative history is The North-West Territories Act of 1880. Section 10 of that Act authorized the Lieutenant Governor-in-Council to "pass all necessary ordinances in respect of education," subject to the proviso that the ordinances would provide for the right of the religious minority to establish separate schools. The North-West Territories Act, S.C. 1880, c. 25, s. 10. ¶ 61 In 1884, the Lieutenant Governor-in-Council exercised this legislative authority and enacted The Schools Ordinance. This Ordinance appears to have been the first comprehensive territorial legislation dealing with schools in the North-West Territories. The School Ordinance, O.N.W.T. 1884, c. 5. ¶ 62 Sections 83 and 84 of the Ordinance dealt with the issue of prayer and religious instruction in schools; 83. A form of prayer, adopted by the board of trustees, may be used by the teacher at the opening of the school each day. 84. No religious instruction, such as bible reading, or reciting, or reading or reciting prayers, or asking questions or giving answers from any catechism;, shall be permitted in any public or separate Protestant or Catholic school in the North-Wester Territories, from the opening of such school at nine o'clock in the forenoon until the hour of three o'clock in the afternoon, after which time any such instruction as may be allowed under this Ordinance and permitted or desired by the trustees of the district may be given. (emphasis added) The School Ordinance, O.N.W.T., 1884, c. 5 ¶ 63 In 1885, the Lieutenant Governor-in-Council repealed and replaced The School Ordinance of 1884 with a new revised Ordinance. The School Ordinance of 1885 similarly provided for religious instruction in the schools; 78. No religious instruction such as Bible reading or reciting, or reading or reciting prayers, or asking questions or giving answers from any catechism, shall be permitted in any public school in the North-West Territories from the opening of such school at nine o'clock in the forenoon, until the hour of three o'clock in the afternoon, alter which time any such instruction, permitted or desired by the,trustees of the district, may be given. (emphasis added)
  17. 17. The School Ordinance, O.N.W.T. 1885, c. 3. ¶ 64 The 1885 Ordinance omitted the provision for prayer at the beginning of the school day, found in section 83 of the 1884 Ordinance. However, both the 1884 and 1885 Ordinances provided that parents could have their children excluded from the religious instruction, which included the reading or reciting of prayers. The School Ordinance, O.N. W.T. 1884, c. 5, s. 85 The School Ordinance, O.N.W.T. 1885, c. 3, s. 79. ¶ 65 Two years later, in 1887, the Lieutenant Governor-in-Council repealed The School Ordinance of 1885 and replaced it with a new consolidated School Ordinance. Section 86 of the Ordinance of 1887 dealt with religious instruction. RELIGIOUS INSTRUCTION 86.No religious instruction. such as Bible reading, or reciting, or reading or reciting prayers (except as hereinafter provided), or asking questions or giving answers from any catechism, shall be permitted in any public school in the North-West Territories, from the opening of such school at nine o'clock in the forenoon, until the hour of three o'clock in the afternoon, after which time any such instruction, permitted or desired by the Trustees may be given. (I.) Schools may be opened each morning with prayer with the consent of the Trustees, who shall approve of the form of prayer to be used. (emphasis added) The School Ordinance Act, O.N.W.T. 1887, c. 2. ¶ 66 There are four points of interest about this provision. First, the reading and reciting of prayers continued to be included in the concept of"religious instruction." The legislation appears to have referred to the reading and reciting of prayers to illustrate what it meant by "religious instruction." Prayers, Bible reading, and catechism, were all part of the legislation's definition of religious instruction, for the purposes of the Ordinance. ¶ 67 Second, the 1887 Ordinance re-introduced the provision for prayers at the beginning of the day, which had been present in the 1884 Ordinance but omitted from the 1885 Ordinance. Significantly, the provision for opening prayers was set out as a proviso or exception from the general tenor of the provision, which only allowed religious instruction, such a prayers, at the end of the school day. ¶ 68 Third, the Legislature introduced the phrase, "except as hereinafter provided." This phrase was not present in the 1884 Ordinance, when the provision for prayers was
  18. 18. not part of the section dealing with religious instruction. Nor was it used in the 1884 Ordinance, which did not have any provision for prayer. The introduction of the phrase in section 86 of the 1887 Ordinance suggests that it referred to the new provisions for prayers, as a form of religious instruction that was not prohibited by section 86. ¶ 69 Fourth, while the equivalent provisions of the 1884 and 1885 Ordinance were included in a division of the Ordinance entitled "Conduct of Schools," section 86 of the 1887 Ordinance, including the opening prayers, is found in a division entitled "Religious Instruction." ¶ 70 In 1888, the territorial Legislature enacted the Revised Ordinances. Section 86 of The School Ordinance of 1887 was carried forward in essentially identical terms. The only change was that the proviso to former section 86, dealing with opening prayers, became a separate section, section 85. Both section 84 of the revised Ordinance, dealing with religious instruction, and section 85, dealing with opening prayers were included in the division of the Ordinance entitled "Religious Instruction." The School Ordinance, R.O.N.W.T. 1888, c. 59. ¶ 71 The territorial Legislature next dealt with the issue in 1892, when it enacted a new School Ordinance. There was a significant change; while the provision respecting religious instruction was carried forward, the provision for opening prayers was not; 85. No religious instruction such as Bible reading or reciting or reading or reciting prayers, (except as hereinafter provided), or asking questions or giving answers from any catechism, shall be permitted in any School in the Territories, from the opening of such School at nine o'clock in the forenoon, until one half-hour previous to the closing of such School in the afternoon, after which time any such instruction, permitted or desired by the Trustees, may be given. (emphasis added) The School Ordinance, O.N.W.T. 1892, c. 22. ¶ 72 In spite of the deletion of the provision for opening prayers in this Ordinance, section 85 continued to include reading and reciting prayers within the concept of"religious instruction." ¶ 73 Retention of the phrase "except as hereinafter provided" when no prayer section followed lends support for the argument that the phrase in s. 137 is not referable to the Lord's Prayer in s. 137(2) ¶ 74 Interestingly, two years later, the Legislature re-enacted the provision for opening prayers, in an amending Ordinance. This 1894 amendment specifically provided that the prayer to be used was the Lord's prayer;
  19. 19. 7. Section 85 of the said Ordinance is hereby amended by added thereto the following words;-- "It shall, however, be permissible for the Trustees of any School District to direct that the School be opened by the recitation of The Lord's Prayer." An Ordinance further to amend "The School Ordinance," O.N.W.T.1894, c. 9. ¶ 75 This legislative history does not bode well for the Commission position that the Lord's prayer is not "religious instruction." But there is a judicial interpretation avenue which seems more encouraging for the Commission's viewpoint. There is case law intimating that the practice of religion is not religious instruction (see Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641 (C.A.)). As well, both Rabbi Pavey and Dr. Mock testified that in their expert opinions, prayer was practice, not instruction. Probably contemporary thinking would agree that reciting the Lord's prayer is not religious instruction, but modern thinking is not particularly helpful in attempting to assess what was meant by "religious instruction," 100 years ago. ¶ 76 The Commission along with the complainants and supporting intervenors have fought the good fight to lay before the Board of Inquiry a legal basis upon which to strip the Board of Education of its authority to allow recitation of the Lord's prayer in public schools in breach of the Code. In the end, however, any interpretation technique applied reasonably to s. 17 of the Saskatchewan Act and the 1901 Ordinance, be it plain meaning construction, legislative analysis or historical reconstruction, leads to a conclusion that recitation of the Lord's prayer at the opening of the school day is a constitutionally entrenched right. ¶ 77 Courts in Ontario, Manitoba and British Columbia have decided that the discriminatory use of the Lord's prayer in public schools is illegal, but they were not faced with s 17 (see Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 65 D.L.R. (4th) 1 (Ont. C.A.), Manitoba Assn. for Rights and Liberties Inc. v. Manitoba, [1992] 5 W.W.R. 749 (Man. Q.B.), Russow v. British Columbia (Attorney General) (1989), 62 D.L.R. (4th) 98 (B.C.S.C.) and Zylberberg, supra). ¶ 78 Respecting the second issue before it, the Board of Inquiry finds that the discriminatory conduct of the Board of Education in allowing recitation of the Lord's prayer in public schools is excused by s. 17 of the Saskatchewan Act, incorporating s. 137 of the 1901 Ordinance, provided the recitation opens the school day. ¶ 79 On the facts before the Board of Inquiry, it is apparent, however, that the Board of Education has lost its constitutional immunity for use of the Lord's prayer because the requisites of s. 137(2) have not been met. ¶ 80 It is the evidence that the school day opens in this fashion; a bell sounds, children go to their classrooms, a form of attendance is taken, and then the Lord's prayer may be recited. The school day has been opened. Teaching begins. Sometimes there is an
  20. 20. assembly in the gym around 9; 15 am. If so, there will be no prayer in the classroom. Instead, the assembly commences with the anthem, followed immediately by the Lord's prayer. ¶ 81 A fundamental flaw invalidates the current practice respecting use of the Lord's prayer in public schools, either at assemblies or in the classroom. S. 137(2) permits the Board of Education to "direct" that the school be opened by the recitation of the Lords prayer. To date, the Board of Education has not made such a direction. Instead, it has delegated its responsibility to the discretion of teachers by a policy statement using these weasel words; "2. That the Saskatoon Board of Education continue to encourage and support the practice of Bible reading and the use of the Lord's Prayer in our schools in accordance with s. 181 of the Education Act. 3. That the Saskatoon Board of Education instruct the Director of Education to advise all staff members of its support for the practice of recitation of the Lord's Prayer and reading of selected passages from the Bible during school opening exercises or special assemblies of schools ... The Board approve in principle, the expansion of its current practice regarding opening exercises to include use of the Lord's Prayer, other prayers, or a moment of silence, and Bible readings, selected readings from other religions, and other inspirational literature." ¶ 82 The evidence before the Board of Inquiry demonstrates the evils of allowing individual teachers to decide whether the Lord's prayer will be said. Whim can play a role; so can personal bias, even from well meaning persons. Decision on prayers is too important to allow elected boards to delegate responsibility to unelected staff. These comments by H.W.R. Wade in his text, Administrative Law (5th ed), p. 329, are notable; "Closely akin to delegation, and scarcely distinguishable from it in some cases, is any arrangement by which a power conferred upon one authority is in substance exercised by another. The proper authority may share its power with someone else, or may allow someone else to dictate to it by declining to act without their consent or by submitting to their wishes or instructions. The effect then is that the discretion conferred by Parliament is exercised, at least in part, by the wrong authority, and the resulting decision is ultra vires and void. So strict are the courts in applying this principle that they condemn some administrative arrangements which must seem quite natural and proper to those who make them." ¶ 83 There is a further reason why recitation of the Lord's prayer at assemblies breaches s. 137(2). On the facts, the school day has already opened in the classroom in
  21. 21. advance of the students proceeding to the gym for assembly. This is so even when assembly is around 9; 15 am. Assembly at that hour is simply the first activity of the already opened school day. This breach is especially pronounced when assemblies are conducted at later hours. ¶ 84 It is the finding of the Board of Inquiry that use of the Lord's prayer to open the school day has not been directed by the Board of Education and therefore, it is not in compliance with s. 137(2) This applies equally to assemblies. That being so, the discriminatory practice is not constitutionally protected and must end because it violates ss. 4 and 13 of the Code. The Board of Inquiry orders that the Board of Education cease sanctioning recitation of the Lord's prayer to open public school days ¶ 85 It is the finding of the Board of Inquiry that recitation of the Lord's prayer at school assemblies further deviates from s. 137(2) because an assembly is not a school opening. Therefore, this discriminatory practice is not constitutionally excused and must yield to the Code. It is ordered that the Board of Education cease sanctioning the Lord's prayer at assemblies in public schools. Bible Reading ¶ 86 The complaints over Bible readings in public schools encounters fewer legal road blocks than was the case against the Lord's prayer. It is not disputed that Bible readings are part of "religious instruction" enshrined in s. 137. There is the proviso, however, that the activity is not to occur "until one-half hour previous to its closing in the afternoon." So, there can be Bible readings after 3;30 pm. ¶ 87 Discrimination respecting Bible readings in public schools is constitutionally excused by s. 137 of the 1901 Ordinance insofar as the readings form part of "religious instruction" in the school during the last half-hour of the day. ¶ 88 Bible readings were authorized by the School Act S.S. 1943, c. 42, s. 4, and now the Education Act SS 1995, c. E-0.2. S. 182 reads as follows; "182(1) Religious instruction as authorized by the board of trustees of a school district, or by the board of education of a school division that is not divided into school districts, with respect to any of the schools in its jurisdiction may be given in that school district or that school division for a period not exceeding two and one-half hours per week. (2) Where the board of education passes a resolution pursuant to subsection 180(2), the religious instruction mentioned in subsection (I) may be given in a language other than English. (3) Subject to subsection (4), a board of trustees, or the board of education in the case of a school division that is not divided into districts, may direct that the exercises preceding the regular daily program of instruction of the school be opened by the reading or
  22. 22. reciting without comment or explanation, of the Lord's Prayer or a passage selected from Bible readings that have been prescribed for the purpose by the minister. (4) Where a parent or guardian of a pupil so requests, the pupil is to be excused from participating in the opening exercises described in subsection (3). (5) where a pupil does not wish to participate in courses of religious instruction authorized pursuant to subsection (l), the pupil; (a) with the written consent of the pupil's parent or guardian, is exempt from attendance at those courses of religious instruction; (b) shall be provided with suitable alternative studies appropriate to the instructional program of his or her grade. (emphasis added) ¶ 89 Insofar as s. 182(3) allows Bible readings at the school opening, it is inconsistent with s. 137 of the 1901 Ordinance which allows religious instruction after 3;30 pm. The Attorney General advanced two reasons why the constitutional protection of s. 137 remains to shield s. 182(3) from the Code. Firstly, the Attorney General submits s. 182(3) can be justified under the plenary powers of the Legislature to legislate with respect to education under s. 93 of the Constitution, as recognized by the Supreme Court of Canada in Reference Bill 30, supra. Alternatively, it can be justified as an example of the "living tree" approach to progressive constitutional interpretation. As society evolves, the scope of a constitutional provision can evolve with it, as recognized in Edwards v. Attorney General for Canada, [1930] A.C. 124 (P.C.). ¶ 90 It is unnecessary for the Board of Inquiry to venture very far down the road of plenary power and "living tree" interpretation. The complainants neither dispute the right of the Board of Education to provide religious instruction, nor do they care that insofar as s. 182(1) of the Education Act permits two and one-half hours of religious instruction per week, it deviates from s. 137 of the 1901 Ordinance which confines religious instruction to the last half-hour of the school day. This being so, the Board of Inquiry would exceed its limited mandate by making rulings beyond those necessary to decide the complainants' case. ¶ 91 Although s 137 is not in issue, it must of course, be considered peripherally, by the Board of Inquiry The right to "religious instruction" in that section and in s. 182(i) cannot be used as a ruse for Bible readings at opening exercises stipulated in s. 182(3). That simply warps s. 137 beyond reasonable intent. ¶ 92 In 1901 religious instruction after 3;30 pm was probably workable. Apparently, this is not so today; therefore the Board of Education sanctions religious instruction not to exceed two and one-half hours per week. The Board of Education justifies this deviation from s. 137 by saying the divergence does not go to content, but rather to implementation
  23. 23. and operation of the "religious instruction" right, as contemplated by "living tree" parameters. This approach sounds practical, but the Board of Inquiry is not obliged to pass on its validity. ¶ 93 On the facts however, the current Board of Education Bible reading practice offends s. 137 and is open to challenge. While the evidence is skimpy, it was shown that some teachers read Bible passages to their pupils. This occurs at varying times of the school day, but there is no evidence of it happening after 3;30 pm. ¶ 94 It is the finding of the Board of Inquiry that the current Board of Education policy and practice of sanctioning Bible readings in public schools do not conform to s. 137 of the 1901 Ordinance; therefore, the discriminatory practice is not excused from the prohibitions in the Code. The practice of Bible readings in public schools must cease, and the Board of Inquiry so orders. ¶ 95 The Board of Inquiry has tried purposefully to confine its rulings and observations to the public school system in order to minimize disruption and anxiety to the separate school system. Many of the criticisms are not directed to separate schools because religious dogma is expected in those institutions. It is appreciated that both systems are included in s. I7 of the Saskatchewan Act. ¶ 96 If either school system wishes to offer curriculum classes in religious education before 3:00 pm, that is its prerogative, based on its interpretation of s. 137, until some tribunal rules otherwise ¶ 97 If separate schools wish to have recitation of the Lord's prayer at school openings, they can do so by direction, under s. 137(2) of the 1901 Ordinance. If separate schools wish to have Bible readings outside curriculum classes, the only impediment in practice would be a complaint by parents, an unlikely event considering children attending separate schools expect religious exercises. Who is to say how a tribunal would apply the "living tree" constitutional interpretation technique in a separate school case, where a strong factual basis was advanced. ¶ 98 It is significant that the Calgary Board of Education approved a multicultural approach to religion in public schools nearly 30 years ago, even before the advent of human rights codes and the Charter. Alberta entered Confederation under legislation identical to s. 17 of the Saskatchewan Act. To its credit, Calgary elected to not utilize the 1901 Ordinance to compel use of the Lord's prayer. Instead, the board implemented a policy of which the following is a part; "B. Religion in Learning Situations In the public schools, the emphasis on religion is as a subject for study, not as a public act of worship or a manifestation of faith. ... D. Specific Activities.
  24. 24. Religious activities which constitute acts of worship and/or the propagation of dogma are not the function of the public school. Such activities are not consistent with the Calgary Board of Education policy of tolerance and respect for differences in faith. 2. Opening exercises Opening exercises may include a song, a reading, a short discussion period or a thought for the day, which may be selected by teachers and students from a variety of sources, both religious (including Bible) and secular. (a) Opening exercises shall not be treated as acts of worship (b) Homeroom teachers shall use their own discretion, in accordance with the foregoing, as to the use and nature of opening exercises. (c) Frequent reading of any particular selection of religious literature, including the commonly used prayer of any religion, might be construed as indoctrination and should be avoided." ¶ 99 Ontario adopted in 1991 a multicultural approach to religion in public schools following the decision in the Canadian Civil Liberties case, supra. This is one of the policy statements: "3. Schools and programs, including programs in education about religion, under the jurisdiction of boards of education must meet both of the following condition, (a) they must not be indoctrinational (b) they must not give primacy to any particular religious faith." ¶ 100 A willing Board of Education could craft similar policies. Proposals revealed thus far are tainted with what Dr. Mock describes as "benevolent multiculturalism." This promotes Christianity and pays lip service to minority groups. The notion of exemption or exclusion for students exacerbates discrimination. The evidence of the students and of the experts as well as jurisprudence, all condemn this notion. ¶ 101 Elementary schools are a powerful environment in which to manipulate the minds of children. Derogatory or demeaning comments or attitudes by teachers may be accepted even where they conflict with family values. It is because of the vulnerability of these children that a fair and tolerant atmosphere must be maintained within thee public school system. Focusing on the dominant religion runs counter to this objective.
  25. 25. Costs ¶ 102 All parties, save the Attorney General, have requested costs. For the Board of Education it is contended that the protracted hearing was unnecessary as the salient facts were never disputed by it. Accordingly, the inquiry could have proceeded expeditiously on points of law only. As the complainants and others insisted on a full evidentiary hearing, they should pay the extra expense. ¶ 103 The Board of Inquiry does not accept this rationale. Testimony of witnesses proved essential. In the end, the Board of Education was the significant loser and ought to pay costs to the successful parties. Moreover, for more than 40 years, petitions to the Board of Education to abandon its discriminatory conduct have gone unheeded. ¶ 104 The complainants could have been represented at the hearing by counsel from the Commission at no charge. From 1993 until this spring, the complainants relied on the Commission to prosecute their case. Then, they felt obliged to hire separate counsel because they wanted a prompt, evidentiary inquiry, while the Commission was amenable to the Board of Education request for a hearing limited to legal issues. Considering all this, the Board of Inquiry orders pursuant to s. 30 of the Regulations to the Code, that the Board of Education pay costs of $5,000 to the complainants as a group. ¶ 105 The intervenors, Congregation Agudas Israel and League for Human Rights of B'Nai Brith Canada, also seek costs. They were responsible for adducing very cogent testimony. The Board of Education shall pay to them, one set of costs which the Board of Inquiry fixes at $7,000 inclusive of any expense incurred in bringing their expert witness from Toronto. ¶ 106 The Commission requests costs as well, and the Board of Inquiry exercises its discretion to fix these at $3,000. Recommendations ¶ 107 The Board of Inquiry recommends for several reasons, that the Legislature of Saskatchewan repeal s. 182(3) of the Education Act (and probably its Fransaskois twin s. 183(2)). Firstly, the subsection is inconsistent with constitutionally entrenched ss. 137 and 137(2) of the 1901 Ordinance. More importantly, repeal would convey the message that religious discrimination in public schools is not condoned. Without s. 182(3) the Board of Education would be obliged to rely on antiquated ss. 137 and 137(2) to support antiquated thinking. ¶ 108 The Board of Inquiry recommends as well, that the Board of Education shed its image as a backwater of religious tolerance by declining to direct under s. 137(2) of the 1901 Ordinance that the Lord's prayer be recited in public schools. ¶ 109 The Board of Inquiry recommends that the Board of Education move rapidly with its plan to develop a multicultural religious proposal. However, the plan should not
  26. 26. include use of any prayer or readings from any form of bible. If amendments are requested to the Education Act to achieve this objective, the Legislature should cooperate Summary ¶ 110 1) This Board of Inquiry has jurisdiction to rule on these complaints despite constitutional implications. 2) The Board of Education interfered with the complainants' right to freedom of religious practices and denied their children's right of education without discrimination because of religion, contrary to ss. 4 and 13 of The Saskatchewan Human Rights Code, by sanctioning recitation of the Lord's prayer and Bible readings in public schools. 3) Discrimination respecting use of the Lord's prayer is constitutionally excused, however, by s. 17 of the Saskatchewan Act 1905 which incorporates s. 137(2) of the School Ordinances 1901, allowing "that the school be opened by the recitation of the Lord's prayer. 4) The current Board of Education policy and practice sanctioning recitation of the Lord's prayer do not conform to s. 137(2); therefore, the discrimination is not protected from the prohibitions of the Code. This discriminatory practice must cease and the Board of Inquiry so orders. 5) a) The Board of Education policy encouraging the use of the Lord's prayer deviates from s. 137(2) because the Board of Education did not "direct" that the Lord's prayer be used as required by that section. Instead, the Board of Education delegated the discretion to teachers to decide if the Lord's prayer should be recited. b) The Board of Education policy encouraging the use of the Lord's prayer at assemblies deviates from s. 137(2) because assemblies do not open the school day. 6) Discrimination respecting Bible readings is also constitutionally excused by s. 137 of the School Ordinances 1901 insofar as the readings form part of "religious instruction" in the school during the "one-half hour previous to its closing in the afternoon." 7) The current Board of Education policy and practice sanctioning Bible readings in public schools do not conform to s. 137; therefore, the discrimination is not protected from the prohibitions in the Code. This discriminatory practice must cease, and the Board of Inquiry so orders. 8) School Board policy encouraging Bible readings deviates from s. 137 because the practice is to allow these readings before the last half-hour of the school day.
  27. 27. 9) The Board of Inquiry recommends that; a) the Legislature of Saskatchewan repeal s. 182(3) of the Education Act; b) the Board of Education decline to "direct" under s. 137(2) of the School Ordinance 1901, that the Lord's prayer be recited at openings of public schools; and c) the Board of Education develop a multicultural religious policy. 10) The Board of Education shall pay costs of $15,000. QL Update: 990909 qp/s/asl

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