Bal Et Al And Attorney General For Ontario Et Al

Re Bal et al. and Attorney General for Ontario et al. *

[Indexed as: Bal v. Ontario (Attorney General)]

21 O.R. (3d) 681
[1994] O.J. No. 2814
Action No. RE 722/92

Ontario Court (General Division),
Winkler J.

December 5, 1994

* Note: An appeal from the following judgment of Winkler J. to the Ontario Court of
Appeal (McKinlay, Osborne and Austin JJ.A.) was dismissed on June 26, 1997. See 34
O.R. (3d) 484 in this database.

Charter of Rights and Freedoms — Freedom of expression — Secularization of public
schools — Policy Memorandum 112 of Ministry of Education and ss. 28 and 29 of Reg.
298 under Education Act provide that teaching about religion in public schools must be
non-indoctrinational and must not give primacy to any particular religious faith — No
infringement of expressive freedom — Canadian Charter of Rights and Freedoms, s. 2(b)
— Education Act, R.S.O. 1990, c. E.2 — R.R.O. 1990, Reg. 298, ss. 28, 29.

Charter of Rights and Freedoms — Freedom of religion — Secularization of public
schools — Policy Memorandum 112 of Ministry of Education and ss. 28 and 29 of Reg.
298 under Education Act provide that teaching about religion in public schools must be
non-indoctrinational and must not give primacy to any particular religious faith —
Failure to establish and fund religious minority schools within public school system does
not infringe freedom of religion — Canadian Charter of Rights and Freedoms, s. 2(a) —
Education Act, R.S.O. 1990, c. E.2 — R.R.O. 1990, Reg. 298, ss. 28, 29.

Charter of Rights and Freedoms — Equality rights — Policy Memorandum 112 of
Ministry of Education and ss. 28 and 29 of Reg. 298 under Education Act state that
teaching about religion in public schools must be non-indoctrinational and must not give
primacy to any particular religious faith — Policy memorandum and regulation does not
infringe s. 15 of Charter — Canadian Charter of Rights and Freedoms, s. 15 —
Education Act, R.S.O. 1990, c. E.2 — R.R.O. 1990, Reg. 298, ss. 28, 29.

In December 1990, the Ontario Ministry of Education issued Policy Memorandum 112
on the subject of "Education about Religion in the Public Elementary and Secondary
Schools", directed to boards of education throughout the province and stating that
teaching about religion must henceforth be non-indoctrinational and must not give
primacy to any particular religious faith. That policy was reflected in ss. 28 and 29 of
Reg. 298 under the Education Act. The applicants were a group of parents representing a

number of minority faith communities in Ontario, including the Sikh, Hindu, Muslim,
Mennonite and Christian Reform communities. They applied to have the memorandum
and the corresponding regulations struck on the grounds that they infringe ss. 2(a), (b)
and 15 of the Canadian Charter of Rights and Freedoms.

Held, the application should be dismissed.

The issue is whether the Charter gives applicants the right to require the Minister of
Education to provide and fund denominational religious schools for minority religious
groups within the public school system. The decisions of the Ontario Court of Appeal in
Zylberberg v. Sudbury Board of Education (Director), Canadian Civil Liberties Assn. v.
Ontario (Minister of Education) and Adler v. Ontario determine that issue against the
applicants.

The impugned policy memorandum and regulations do not infringe freedom of religion
contrary to s. 2(a) of the Charter. To found a breach of s. 2(a), there must be some state
coercion that denies or limits the exercise of one's religion. Secularism is not coercive, it
is neutral. Policy Memorandum 112 does not constitute a form of government action
which prefers one religion over another, nor does it represent majoritarian religious
views. The policy seeks to abolish distinctions in the public school system which are
based on religion. The central thrust of the applicants' position was to bring the religious
minority alternative schools under the aegis of the public school board to obtain financial
support from that system. The decision of the Court of Appeal in Adler that there is no
obligation on the government to fund minority religious schools is directly on point and
determinative of the issue.

The policy memorandum and ss. 28 and 29 of the regulation do not infringe freedom of
expression contrary to s. 2(b) of the Charter. Their purpose is to secularize the public
school system, not to restrict protected expression. Their effect is to promote secularism
in the public schools, not to restrict expressive activities. In reality, no restrictions were
placed on the expressive freedom of these applicants. A student is not prevented from
speaking his or her beliefs. Indoctrination is limited, but not expression. Though teachers
were not parties to the application, there is nothing to preclude a teacher from expressing
his or her beliefs outside the school curriculum. The only limitation is that teachers and
the school are not to indoctrinate or give primacy to any religion.

The policy memorandum and the regulation do not infringe s. 15 of the Charter. It is
not the policy memorandum and the regulation which impose obligations, penalties, or
restrictive conditions on the applicants and not on others. Rather, it is the applicants'
choice of education for their children. The public school system is secular and does not
present the opportunity for education in any particular denomination or faith. Should
parents desire that their children have a religious education they must assume the cost.

Adler v. Ontario (1994), 19 O.R. (3d) 1, 22 C.R.R. (2d) 205, 116 D.L.R. (4th) 1 (C.A.);
Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 71 O.R. (3d)
341, 46 C.R.R. 316, 65 D.L.R. (4th) 1, 37 O.A.C. 93 (C.A.); Zylberberg v. Sudbury

Board of Education (Director) (1988), 65 O.R. (2d) 641, 34 C.R.R. 1, 52 D.L.R. (4th)
577, 29 O.A.C. 23 (C.A.), folld

R. v. Keegstra, [1990] 3 S.C.R. 697, 3 C.R.R. (2d) 193, 61 C.C.C. (3d) 1, 1 C.R. (4th)
129, 77 Alta. L.R. (2d) 193, [1991] 2 W.W.R. 1, 117 N.R. 1, consd

Other cases referred to

Board of Education for the Borough of North York and Ministry of Education (Re)
(1978), 19 O.R. (2d) 547, 6 M.P.L.R. 249 sub nom. Toronto Hebrew Schools v. North
York Board of Education (H.C.J.), affd Ont. C.A., April 9, 1979; Brusca v. Missouri, 332
F. Supp. 275 (1971), affd 405 U.S. 1050, 92 S. Ct. 1493; Committee for the
Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, 4 C.R.R. (2d) 60, 77 D.L.R.
(34th) 385, 120 N.R. 241, 40 F.T.R. 240n; Edwards Books & Art Ltd. v. R., [1986] 2
S.C.R. 713, 28 C.R.R. 1, 30 C.C.C. (3d) 385, 55 C.R. (3d) 193, 35 D.L.R. (4th) 1, 87
C.L.L.C. 14,001, 19 O.A.C. 239, 71 N.R. 161, 58 O.R. (2d) 442n; Ford v. Quebec
(Attorney General), [1988] 2 S.C.R. 712, 36 C.R.R. 1, 54 D.L.R. (4th) 577, 19 Q.A.C. 69,
90 N.R. 84; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, 39
C.R.R. 193, 58 D.L.R. (4th) 577, 25 C.P.R. (3d) 417, 24 Q.A.C. 2, 94 N.R. 167;
Norwood v. Harrison, 413 U.S. 455 (1973); Ontario Human Rights Commission v.
Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321, 9 C.C.E.L. 185, 17
Admin. L.R. 89, 86 C.L.L.C. 17,002, 64 N.R. 161, 52 O.R. (2d) 799n; R. v. Big M Drug
Mart Ltd., [1985] 1 S.C.R. 295, 13 C.R.R. 64, 18 C.C.C. (3d) 385, 18 D.L.R. (4th) 321,
37 Alta. L.R. (2d) 97, [1985] 3 W.W.R. 481, 85 C.L.L.C. 14,023, 58 N.R. 81; R. v.
Oakes, [1986] 1 S.C.R. 103, 19 C.R.R. 308, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 26
D.L.R. (4th) 200, 14 O.A.C. 335, 65 N.R. 87, 53 O.R. (2d) 719n; Ramsden v.
Peterborough (City), [1993] 2 S.C.R. 1084, 16 C.R.R. (2d) 240, 106 D.L.R. (4th) 233, 23
C.R. (4th) 391, 16 M.P.L.R. (2d) 1, 156 N.R. 2, 15 O.R. (3d) 548n; Reference re Act to
Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148, 36 C.R.R. 305, 40 D.L.R.
(4th) 18, 22 O.A.C. 321, 77 N.R. 241

Statutes referred to

Canada Act 1982 (U.K.), c. 11
Canadian Charter of Rights and Freedoms, ss. 1, 2, 15, 23, 24(1)
Constitution Act, 1867, s. 93
Constitution Act, 1982, s. 52(1)
Education Act, R.S.O. 1980, c. 129, s. 50
Education Act, R.S.O. 1990, c. E.2, ss. 21, 51

Rules and regulations referred to

R.R.O. 1990, Reg. 298 (Education Act), ss. 28, 29

Authorities referred to

Religion in the Public Schools (American Association of School Administrators, 1986),
p. 33
Shapiro, Report of the Commission on Private Schools in Ontario (October 1985)

APPLICATION attacking the constitutionality of Policy Memorandum 112 of the
Ministry of Education and ss. 28 and 29 of R.R.O. 1990, Reg. 298 under the Education
Act, R.S.O. 1990, c. E.2.

Peter R. Jervis, for applicants.

Robert Charney, for respondents.

WINKLER J.: —

I. INTRODUCTION

In a landmark decision released by the Ontario Court of Appeal in January 1990 the
court struck down the curriculum for religious education of the Elgin County Board of
Education. The curriculum was set pursuant to the regulations under the Education Act,
R.S.O. 1980, c. 129, s. 50, which required two periods of religious education in public
schools each week. A student could be exempted, upon request, pursuant to an exemption
provision in the regulations. The curriculum and the regulations, which reflected
majoritarian Christian faith, were found to violate s. 2(a) of the Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the
Canada Act 1982 (U.K.), 1982, c. 11 ("Charter"), which guarantees freedom of
conscience and religion, by imposing majoritarian religious beliefs on minorities.

Almost a year and a half earlier, the court had struck down a related regulation
requiring opening exercises in schools in a proceeding involving the Sudbury Board of
Education. The opening exercises included the recitation of the Lord's Prayer, a Christian
prayer, and a reading from the Scriptures in the Christian Bible. This regulation, also, was
found to have infringed the Charter guarantee of freedom of conscience and religion.

On December 6, 1990 the Ministry of Education responded to the decision of the court
in Elgin County, infra, by issuing Policy Memorandum 112 on the subject of "Education
about Religion in the Public Elementary and Secondary Schools". This was directed to
boards of education throughout the province and stated the requirements to give effect to
the Elgin County decision. The memorandum stated that teaching about religion must
henceforth be non-indoctrinational and must not give primacy to any particular religious
faith. It stated further that the regulations under the Act would be amended to reflect his
policy.

It is this policy directive and the revised regulations which the applicants seek to
impugn in this proceeding.

The Elgin County decision and the ensuing policy memorandum and regulations signify
the end of an era of majoritarian Christian influence, and mark the beginning of a period
of secularism in education, based on an awareness of a changing societal fabric and
Charter protection for minority rights to freedom of religion. Notwithstanding this, the
applicants assert that the policy memorandum and regulations, when applied to them,
infringe the Charter.

The applicants are a group of parents representing a number of minority faith
communities in Ontario, including the Sikh, Hindu, Muslim, Mennonite and Christian
Reform communities.

Certain of the applicants are involved with existing alternative religious schools, which
they describe as "opt-in" schools, within the public school system. One such school, a
Christian day school, known as the Sturgeon Creek Alternative Program ("SCAP"), is
part of the Fort Frances-Rainy River Board of Education. The second is called the Eden
Christian School in Lincoln County ("Eden") which is exactly the same as SCAP. The
application of Policy Memorandum 112 and the regulations to these existing alternative
religious schools is that religious instruction and religious exercises at these schools is
now prohibited during regular school hours.

Also, the policy prohibits the establishment of other alternative religious schools within
the public school system because such schools would have the specific objective of
religious indoctrination through instruction and exercises.

It is asserted by the applicants that the preclusion of the establishment, funding, or
continuation of alternative religious schools as part of a public school board is
discriminatory and denies to the applicants the freedom of conscience and religion and
freedom of expression as members of minority faith communities and as such violates ss.
2(a), (b) and 15 of the Charter.

The respondents counter by pointing out that, during the period of majoritarian
Christian influence in the public school system in Ontario, accommodation for alternative
religious minority schools within the public school system was permitted. As a result of
the decisions of the Court of Appeal involving the Sudbury Board of Education and the
Elgin County Board of Education, religious instruction and exercises were not permitted
in the public school system. The upshot of all of this has been that the public school
system in Ontario has been secularized. In another Court of Appeal decision which was
released recently, Adler, infra, it was held that public funding of private religious schools
should not be imposed on the government.

The applicants seek to retain the right to minority religious school accommodation
within the public school system and thus have access to public funding. They object to
the application of the policy memorandum and the regulations by the Ministry of
Education to minority religious schools on Charter grounds, even though the policy and
regulations have been applied to eliminate majoritarian religious influence in the public

school system, also on Charter grounds. Herein, say the respondents, is the anomaly in
the applicants' position.

In my opinion, Policy Memorandum 112 and ss. 28 and 29 (R.R.O. 1990, Reg. 298) of
the regulations under the Education Act do not infringe the applicants' rights under the
Charter. My reasons follow.

II. BACKGROUND

This matter arises in the context of judicial pronouncement and governmental response.
At the outset, therefore, it is necessary to examine the decisions, Policy Memorandum
112 and the amended regulations. Policy Memorandum 112, which is at the vortex of this
dispute, was distributed after the decision in Canadian Civil Liberties Assn. v. Ontario
(Minister of Education) (1990), 71 O.R. (2d) 341, 46 C.R.R. 316 (C.A.) ("Elgin
County"). This decision in turn came after the decision in Zylberberg v. Sudbury Board
of Education (Director) (1988), 65 O.R. (2d) 641, 34 C.R.R. 1 (C.A.) ("Zylberberg"), the
first in what I will refer to as the "trilogy" of minority religious education cases in
Ontario. The last of these decisions, Adler v. Ontario, was released on July 6, 1994 by the
Ontario Court of Appeal and is reported at 19 O.R. (3d) 1, 22 C.R.R. (2d) 205 ("Adler").
It is within this framework that the present application must be determined.

A. The Zylberberg Decision

In Zylberberg, the appellants were parents of children enroled in the public elementary
school system in Sudbury. These parents sought a declaration that s. 28(1) of the
regulations to the Education Act was of no force and effect because it violated the
guarantee of freedom of conscience and religion in s. 2(a) of the Charter. The target of
the proceeding was the religious exercises which were required by the regulations to take
place at the beginning or end of every school day. These exercises included recitation of a
Christian prayer (the Lord's Prayer), and readings from the Scriptures or other readings
and, in some cases, the singing of hymns. There was a provision for students to be
exempt from the religious exercises, if requested. The schools of the Sudbury board
opened with the National Anthem, Lord's Prayer, and, in some schools, reading from
Scriptures.

In arriving at its decision, the Court of Appeal applied the analytical framework set
down by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103, 19 C.R.R.
308. That is, a court must first determine if the law, which is sought to be impugned,
constitutes a prima facie infringement of the Charter. Then, if this is so, a court must
determine if s. 1 of the Charter saves the legislation.

At p. 652 of the Zylberberg decision, the court considered the views of Supreme Court
of Canada concerning the freedom of conscience and religion, as stated in R. v. Big M
Drug Mart Ltd., [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321 ("Big M Drug Mart"):

Chief Justice Dickson (then Dickson J.), speaking for the court, eloquently

described the meaning of the words "freedom of conscience and religion". In
its most traditional sense, freedom of religion means the unimpeded freedom
to hold, profess and manifest religious beliefs as he said at . . . p. 336 S.C.R.:

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.

He continued by saying that "the concept means more than that" and stated
that the freedom can "be characterized by the absence of coercion or
restraint". He went on to say at . . . p. 336 S.C.R.:

Coercion includes not only such blatant forms of compulsion as direct
commands to act or refrain from acting on pain of sanction, coercion
includes indirect forms of control which determine or limit alternative
courses of conduct available to others. Freedom in a broad sense embraces
both the absence of coercion and constraint, and the right to manifest
beliefs and practices.

Another aspect of the Charter freedom of conscience and religion, which is
of particular significance in this case, is freedom from conformity. The
practices of majoritarian religion cannot be imposed on religious minorities.
The minorities should not be subject to the "tyranny of the majority", as Chief
Justice Dickson said at . . . p. 337 S.C.R.:

What may appear good and true to a majoritarian religious group, or the
State acting at their behest, may not, for religious reasons, be imposed upon
citizens who take a contrary view. The Charter safeguards religious
minorities from the threat of "the tyranny of the majority".

The court also referred to passages in which the Supreme Court emphasized that s. 2(a)
protects the freedom of non-believers as well as believers. The only limitation on one's
freedom of conscience and religion was identified by the court at p. 653:

The only limitation upon an individual's freedom of conscience or religion
recognized by the Supreme Court of Canada is that its manifestation must not
injure others or interfere with their right to manifest their own beliefs and
opinions. Dickson J. said at . . . p. 346 S.C.R.:

The values that underlie our political and philosophic traditions demand
that every individual be free to hold and to manifest whatever beliefs and
opinions his or her conscience dictates, provided, inter alia, only that such
manifestations do not injure his or her neighbours or their parallel rights to
hold and manifest beliefs and opinions of their own.

Finally, the court considered the Supreme Court's recognition of a changing society with
differing views of the education system. As the community's beliefs become more varied,
the place of the established Christian practices in the education system must be re-
evaluated.

It was conceded that s. 28(1) of the regulations was prima facie an infringement of s.
2(a) of the Charter. However, it was argued that the provision for exemption of a student
in the regulations eliminated the suggestion of pressure or compulsion on non-Christians
to participate in the exercises. In response to this argument the court said, at p. 654:

From the majoritarian standpoint, the respondent's argument is
understandable but, in our opinion, it does not reflect the reality of the
situation faced by members of religious minorities. Whether or not there is
pressure or compulsion must be assessed from their standpoint and, in
particular, from the standpoint of pupils in the sensitive setting of a public
school.

(Emphasis added)

In particular the court noted the following, at p. 655:

The peer pressure and the class-room norms to which children are acutely
sensitive, in our opinion, are real and pervasive and operate to compel
members of religious minorities to conform with majority religious practices.

It was held that the right to be excused from class or to be exempt from participation
does not overcome the infringement of s. 2(a) of the Charter. The court stated that the
exemption provisions impose a penalty on pupils from religious minorities who rely on
them by stigmatizing them as non-conformists and setting them apart from other students
who are members of the dominant religion. The exemption provisions, it was concluded,
fail to mitigate the infringement of freedom of conscience and religion by s. 28(1).

The court held that it is difficult to justify an infringement of this nature but,
nevertheless, applied the test from the R. v. Oakes decision to conduct a s. 1 analysis.
Rather than examine each step of the test, the most vulnerable element of the case was
considered. That is, whether the right is impaired "as little as possible". The court found
that s. 28 of the regulations does not impair the right "as little as possible" and, therefore,
s. 1 cannot be invoked to justify the infringement. Accordingly, s. 28(1) of the regulations
was held to be of no force and effect. The opening religious exercises were struck down
as infringing the Charter right to freedom of religion.

B. The Elgin County Decision

Pursuant to a requirement of s. 28(4) of the regulations which required two periods of
religious education each week, the Elgin County board provided religious instruction by
members of a county bible association. The instruction was largely from a fundamentalist

Christian perspective. Midway through the litigation, the board changed the policy so that
classroom religious instruction was provided by classroom teachers. Over 90 per cent of
the people residing in Elgin County were, at the time, of Christian background. The
appellant parents objected to the religious instruction but chose not to exempt their
children from this religious instruction because of a concern for stigmatization and,
instead, proceeded through the courts.

Thus the Court of Appeal, in Elgin County, was once again faced with s. 28 of the
regulations to the Education Act. The court's reasons in Zylberberg had been released
when the lower court decision in Elgin County was under appeal. The court considered
the constitutionality of s. 28(4) of the regulations and then turned to an examination of
the constitutionality of the curriculum offered in the schools.

The court framed the issue before it at p. 344:

The crucial issue in this appeal is whether the purpose and the effects of the
regulation and the curriculum are to indoctrinate school children in Ontario in
the Christian faith. If so, the rights to freedom of conscience and religion
under s. 2(a) of the Canadian Charter of Rights and Freedoms and the
equality rights guaranteed under s. 15 of the Charter may be infringed. On the
other hand, it is conceded that education designed to teach about religion and
to foster moral values without indoctrination in a particular relgious faith
would not be a breach of the Charter. It is indoctrination in a particular
religious faith that is alleged to be offensive.

(Emphasis in original)

The court summarized the decision in Zylberberg at p. 350:
The majority of this court (Brooke, Blair, Goodman and Robins JJ.A.)
concluded that s. 28(1), on its face, infringed the freedom of conscience and
religion guaranteed by s. 2(a) of the Charter. It imposed, in their opinion,
Christian observances upon non-Christian pupils and religious observances
on non-believers. They held that the regulation was not saved by the
exemption provision. This provision imposed on religious minorities a
compulsion to conform to the religious practices of the majority. It
discriminated against religious minorities by imposing a penalty on pupils
from religious minorities who utilize it by stigmatizing them as non-
conformists and setting them apart from their fellow students who are
members of the dominant religion. The majority of the court held that harm
to individual pupils did not need to be proved by those who objected to s.
28(1). Also, they found that the denigration of the freedoms of conscience
and religion of minorities by the operation of s. 28(1) resulted in an
infringement which was not insubstantial or trivial. Lastly, they held that the
infringement created by s. 28(1) was not capable of justification under s. 1 of
the Charter. Even if s. 1 were applicable, the regulation was not a reasonable
limit which could be demonstrably justified under s. 1 of the Charter.

The court referred to the decision of the Supreme Court of Canada in Big M Drug Mart
to assist in determining whether s. 28 infringed s. 2(a) of the Charter. Emphasis was
given to the words of Dickson J. (as he then was) and the direction contained therein to
consider the purpose and effect of the legislation, since either an unconstitutional purpose
or an unconstitutional effect can invalidate the legislation. Dickson J. explained at pp.
351-52 (D.L.R.):

[T]he legislation's purpose is the initial test of constitutional validity and its
effects are to be considered when the law under review has passed or, at least,
has purportedly passed the purpose test. . . . [T]he effects test will only be
necessary to defeat legislation with a valid purpose; effects can never be
relied upon to save legislation with an invalid purpose.

In determining the purpose of the legislation, the court considered its history. It was
noted that, traditionally, there have been two aspects to the role of religion in Ontario's
public schools: religious education and opening and closing religious exercises. There
was little resistance to the inclusion of these aspects of religion in the school system
because the population had been predominantly Christian. The use of religion in the
education system was seen as a method of teaching morality or as a form of
indoctrination. The court adopted the analysis of the evidence that the object of s. 28(4)
was the indoctrination of schoolchildren in the Christian faith.

Having identified this purpose, the court moved on to a determination of whether this
indoctrination violates s. 2(a) of the Charter. At p. 363 the court observed:

The short answer is that it must. State-authorized religious indoctrination
amounts to the imposition of majoritarian religious beliefs on minorities.
Although s. 2(a) of the Charter is not infringed merely because education
may be consistent with the religious beliefs of the majority of Canadians (see
Edwards Books, supra, p. 35), teaching students Christian doctrine as if it
were the exclusive means through which to develop moral thinking and
behaviour amounts to religious coercion in the class-room. It creates a direct
burden on religious minorities and non-believers who do not adhere to
majoritarian beliefs. That this amounts to violation of s. 2(a) of the Charter,
especially when viewed in the light of s. 27 of the Charter, becomes clear
from a review by this court in Zylberberg, supra (at pp. 652-3 O.R., pp. 588-9
D.L.R.), of those passages in Big M, supra, where Dickson J. dealt with the
nature of the Charter freedom of conscience and religion.

Given the conclusion with respect to the purpose of the legislation, there was no need
for the court to consider the effect. However, in obiter, the court stated that had the
finding regarding purpose been different, it nevertheless would have reached the same
conclusion based on the effects of the regulation. It was held that the effect of the
regulation was to provide for the use of curricula and materials which constituted the
basis for religious indoctrination. This was held to be unconstitutional.

The court considered the constitutionality of the curriculum separately. It was decided
that the curriculum should be considered government action rather than law. The result of
this finding is that the remedy falls to s. 24(1) of the Charter rather than s. 52(1) of the
Constitution Act, 1982 which, the court stated, was in accord with the relief sought by the
appellant, Corporation of the Canadian Civil Liberties Association. The relief sought was
an order declaring the curriculum to be a denial of certain rights and freedoms under the
Charter. The test to be applied is that s. 2(a) prohibits religious indoctrination but does
not prohibit education about religion. This distinction is described in an eight-part
statement originating from the Public Education Religion Center, Wright State
University, and quoted in Religion in the Public Schools (American Association of
School Administrators, 1986) at p. 33. This eight-part statement was subsequently
adopted in Policy Memorandum 112 and is excerpted in full below.

The court examined the curriculum and declared it to be inconsistent with s. 2(a) of the
Charter.

In addition to the s. 2(a) arguments, counsel argued that s. 15(1) of the Charter was
infringed. The court declined to express an opinion on this point given its conclusion with
respect to the s. 2(a) infringement. Further, it concluded that, as in Zylberberg, if the true
purpose of the impugned regulation is to indoctrinate children in the Christian faith, the
infringement of s. 2(a) cannot be justified under s. 1. In addition, the court found that,
even if there is a beneficial objective ascribed to the regulation, the measures adopted are
not rationally connected to that objective. That is, if teaching proper moral standards is
the objective, the indoctrination of children in the Christian religion, is not rationally
connected to that objective. Also, these measures failed to impair the appellants' freedoms
as little as possible.

In the result, s. 28(4) of the regulations was held to be of no force and effect. The
curriculum of religious studies prescribed by the Elgin County Board of Education was
said to deny the freedom of conscience and religion and the board was enjoined from
continuing to require or permit the curriculum to be offered in its schools.

C. Policy/Program Memorandum No. 112 and ss. 28 and 29 of R.R.O. 1990, Reg. 298

Key to the application at bar is a memorandum issued by the Ministry of Education on
December 6, 1990 which became effective on January 1, 1991 dealing with "Education
about Religion in the Public Elementary and Secondary Schools" and designated as
Policy/Program Memorandum No. 112. It is this memorandum and the corresponding
regulations that the applicants seek to have struck on the grounds that they infringe ss.
2(a), (b) and 15 of the Charter.

Policy Memorandum 112 and the new regulations were a response to the Ontario Court
of Appeal's decision in Elgin County and constituted an effort, on the part of the
government, to provide secular education in the public school system.

I reproduce the memorandum in whole given its significance to the determination of the
application:

[Ministry logo] Policy/Program
Memorandum
No. 112

Date of Issue December 6, 1990 Effective: January 1, 1991
Subject: EDUCATION ABOUT RELIGION IN THE PUBLIC
ELEMENTARY AND SECONDARY SCHOOLS
Applications: Chairpersons of Boards of Education Directors of
Education of Boards of Education, Principals of Public
Elementary and Secondary Schools

I. Background
On January 30, 1990, the Ontario Court of Appeal unanimously struck down
subsection 28(4) of Regulation 262 concerning religious education in the
public elementary schools. The court ruled that the subsection infringed on
the freedom of conscience and religion guaranteed by section 2(a) of the
Canadian Charter of Rights and Freedoms. Neither the subsection nor the
court decision applied to schools operated by the Roman Catholic separate
school boards.
Section 29 of Regulation 262, regarding provision of religious instruction by
clergy or designates in the public secondary schools, was not before the court,
and the court's ruling did not apply expressly to that section. However,
subsequent advice by legal counsel indicates that the principles outlined in
the decision make section 29 equally untenable.
In its decision, the court made it very clear that subsection 28(4) of the
regulation was invalid because it permitted the teaching of a single religious
tradition as if it were the exclusive means through which to develop moral
thinking and behaviour. The court also ruled that education designed to teach
about religion and to foster moral values without indoctrination in a particular
religious faith would not contravene the charter [sic].
In distinguishing between religious indoctrination and education about
religion, the court made the following statement:

While this is an easy test to state, the line between indoctrination and
education, in some instances, can be difficult to draw. With this in mind, it
may be of assistance to refer to the following more detailed statement of the
distinction:

-- The school may sponsor the study of religion, but may not sponsor the
practice of religion.
-- The school may expose students to all religious views, but may not
impose any particular view.

-- The school's approach to religion is one of
instruction, not one of indoctrination.

-- The function of the school is to educate about all religions, not to
convert to any one religion.

-- The school's approach is academic, not devotional.

-- The school should study what all people believe, but should not teach a
student what to believe.
-- The school should strive for student awareness of all religions, but
should not press for student acceptance of any one religion.
-- The school should seek to inform the student about various beliefs, but
should not seek to conform him or her to any one belief.

Subsequent to the court's ruling, an interim policy for public elementary
schools, dated February 28, 1990, was established, whereby boards were
permitted to provide programs in education about religion in the time
previously used during the school day, as long as these programs were in
accordance with the court's ruling. Boards of education were also advised that
they could continue to provide space outside the school day, as they do for
various community-related activities, if parents requested that their children
be taught religion by clergy or designates. This interim policy for elementary
schools was intended to remain in effect only until policy considerations
related to the public elementary and secondary schools were finalized.
II. Permanent Policy
The Ministry of Education will amend sections 28 and 29 of Regulation 262
to reflect the following permanent policy, which will apply to public
elementary and secondary schools:

1. Boards of education may provide programs in education about religion
in Grades 1 to 8 during the school day for up to 60 minutes per week.
2. Boards of education may continue to provide optional credit courses in
World Religions in secondary schools, as specified in the curriculum
guideline entitled History and Contemporary Studies, Part C: Senior
Division, Grades 11 and 12, 1987. The program described in the
guideline meets the court's definition of permissible education about
religion.
3. Schools and programs, including programs in education about religion,
under the jurisdiction of boards of education must meet both of the
following conditions:

a) They must not be indoctrinational.

b) They must not give primacy to any particular religious faith.
4. Boards of education may continue to provide space before the
beginning or after the close of the instructional program of the school
day for indoctrinational religious education. Given the provisions for
equality of treatment in the Canadian Charter of Rights and Freedoms,
boards choosing this option must make space available on an equitable
basis to all religious groups.

This policy will come into effect on January 1, 1991.

III. Purpose
The purpose of programs in education about religion is to enable students to
acquire knowledge and awareness of a variety of the religious traditions that
have shaped and continue to shape our world. The programs enable
individuals to understand, appreciate, and respect various types of religious
beliefs, attidues, and behaviour.
The purpose of these programs is not to instil the beliefs of any particular
religion. It is the prerogative of individual pupils and their families to decide
which religious beliefs they should hold. Indoctrinational religious education
has no place in the curriculum or programs of public elementary and
secondary schools of the province.
IV. Content
Since the world's religions are many and varied, a particular program in
education about religion cannot be expected to include every one of them. As
a minimum, programs in any grade should include a balanced consideration
of world religions that have continuing significance for the world's people.
Both content and method should be appropriate to the ages and levels of
maturity of the pupils. In developing programs of education about religion,
consideration may be given to various organizational frameworks.
V. Resources
The Ministry of Education will develop a resource document to assist boards
of education in developing programs in education about religion for
elementary schools.
Programs for the secondary schools will continue to be developed in
accordance with History and Contemporary Studies, Part C: Senior Division,
Grades 11 and 12, 1987.
VI. Context
This permanent policy and the forthcoming amendments to Regulation 262
are to be understood within the context of the long-established vision of the
public elementary and secondary schools as places where people of diverse
backgrounds can learn and grow together. The public schools are open and
accessible to all on an equal basis and founded upon the positive societal
values which, in general, Canadians hold and regard as essential to the well-
being of our society. These values transcend cultures and faiths, reinforce
democratic rights and responsibilities, and are founded on a fundamental

belief in the worth of all persons.

(Emphasis added)

The Education Act, R.S.O. 1990, c. E.2, addresses religious instruction in the schools as
follows:

51(1) Subject to the regulations, a pupil shall be allowed to receive such
religious instruction as the pupil's parent or guardian desires or, where the
pupil is an adult, as the pupil desires.
(2) No pupil in a public school shall be required to read or study in or from
a religious book, or to join in an exercise of devotion or religion, objected to
by the pupil's parent or guardian, or by the pupil, where the pupil is an adult.

The regulations which are being challenged, in addition to Policy Memorandum 112, are
ss. 28 and 29 of Reg. 298 which state:

28(1) A board may provide in grades one to eight and in its secondary
schools an optional program of education about religion.

(2) A program of education about religion shall,

(a) promote respect for the freedom of conscience and religion guaranteed
by the Canadian Charter of Rights and Freedoms; and
(b) provide for the study of different religions and religious beliefs in
Canada and the world, without giving primacy to, and without
indoctrination in, any particular religion or religious belief.

(3) A program of education about religion shall not exceed sixty minutes of
instruction per week in an elementary school.
29(1) Subject to subsections (2) and (3), a board shall not permit any person
to conduct religious exercises or to provide instruction that includes
indoctrination in a particular religion or religious belief in a school.
(2) A board may enter into an agreement with a separate school board or
the Roman Catholic sector of The Ottawa-Carleton French-Language School
Board that permits the separate school board or the Roman Catholic sector to
use space and facilities to conduct religious exercises or provide religious
instruction for the purposes of the separate school board or the Roman
Catholic sector.
(3) A board may permit a person to conduct religious exercises or to
provide instruction that includes indoctrination in a particular religion or
religious belief in a school if,

(a) the exercises are not conducted or the instruction is not provided by or
under the auspices of the board;

(b) the exercises are conducted or the instruction is provided on a school
day at a time that is before or after the school's instructional program, or
on a day that is not a school day;
(c) no person is required by the board to attend the exercises or instruction;
and
(d) the board provides space for the exercises or instruction on the same
basis as it provides space for other community activities.

(4) A board that permits religious exercises or instruction under subsection
(3) shall consider on an equitable basis all requests to conduct religious
exercises or to provide instruction under subsection (3).
D. The Adler Decision

The most recent case in the "trilogy" is the Adler decision which was released just prior
to the argument in this matter. Counsel agree that Adler is determinative of certain issues
of non-funding of independent minority religious schools raised in this proceeding which,
as a result, must be decided in favour of the respondent. Accordingly, this issue was not
argued here, it being understood that the applicants were preserving their position in the
event of a successful appeal in Adler at the Supreme Court of Canada. The claims for
relief being preserved are those requested in ss. 1(ii), (iii), and (iv) of the amended notice
of application. The application of Adler to the remaining issues was, however, hotly
disputed.

The issue in Adler was framed as follows, at pp. 5-6:

The principal issue in these appeals is whether, by reason of ss. 2(a) and 15
of the Canadian Charter of Rights and Freedoms, the Province of Ontario is
now mandated through public funding to foster and facilitate religious
education for all the diverse religious groups within Ontario.

The essence of the Court of Appeal's decision in Adler is that there is no obligation on
the government to fund private minority religious schools. By the time Adler was argued
secularization was in place in the public schools system. The public school system,
except for the public Roman Catholic schools which are specifically provided for in s. 93
of the Constitution Act, 1867, had a secular curriculum and there were no religious
exercises. Religious education was available but optional in accordance with Policy
Memorandum 112. If a parent or student wanted religious education, they had recourse to
the private school system, but had to pay for it.

The appellants in Adler were parents who sent their children to private religious-based
independent schools. Dubin C.J.O. held that s. 2(a) was not breached by the absence of
government funding of these independent religious schools. At the outset of his reasons
he emphasized that it is not the role of the court to make a policy decision on public
funding of religious-based independent schools, it is up to the legislature.

The motions judge, from whose decision the appeal lay, had held that s. 21 of the
Education Act made school attendance mandatory and compelled the appellants to pay
tuition fees for private religious education. This, he held, in the absence of provincial
funding, constituted a breach of s. 2(a) of the Charter. Dubin C.J.O. found that the
motions court judge had erred by so holding. Section 21 of the Act requires a child to
attend school. If the child is receiving satisfactory education elsewhere he or she is
excused from attendance. There is, therefore, no requirement that the child attend public
school or a separate school under the jurisdiction of the appropriate board as defined by
the Act. The section does not mandate compulsory attendance at a non-denominational
school.

Although no mention was made in Adler of the Elgin County case, Dubin C.J.O does
refer to Zylberberg. He reviewed the reasoning of the motions court judge that Big M
Drug Mart, Edwards Books & Art Ltd. v. R., [1986] 2 S.C.R. 713, 28 C.R.R. 1
("Edwards Books"), and Zylberberg support the proposition that non-funding to the
private religious-based independent schools constituted an infringement of s. 2(a). Dubin
C.J.O. disagreed. He stated, at p. 14, that the decisions of the Supreme Court of Canada
in Big M Drug Mart and Edwards Books do not support the proposition that the
government is under a duty to provide funding to "such institutions". In Zylberberg and
the cases relied on for its decision, it was government action that was held to be
offensive. Dubin C.J.O. distinguished the case before him at p. 18 as follows:

In this case, in my opinion, there was no government action that compelled
the appellants to send their children to private religious-based independent
schools. They were free to send their children to secular public schools
maintained at public expense. Their decision not to do so was solely a
response to their religious beliefs and not a result of any government action.

Dubin C.J.O. pointed out that what is being complained of is not government action but,
rather, government inaction. In these circumstances this cannot be the subject of a
Charter challenge. He commented at p. 18:

It is not necessary in this case to determine whether it would be open to the
government, in the absence of specific constitutional authority (such as s. 93
of the Constitution Act, 1982), to provide public funding for all private
religious-based independent schools. This will be dealt with by the courts in
the event that such a situation arises and is challenged.

It was key to the decision of the Court of Appeal that there was no support for the
proposition that a failure to fund private religious-based independent schools interfered
with one's freedom of religion.

Dealing with the s. 15(1) argument, Dubin C.J.O. stated that, with respect to religious
and language instruction, he was of the view that s. 93(1) of the Constitution Act, 1867,
and s. 23 of the Charter define the extent of the legislature's obligations under the
Constitution.

Chief Justice Dubin considered the analysis in the lower court to the effect that the Act
compels parents to send their children to school; because of their religion, they must go to
private school; thus they cannot attend public schools. Dubin C.J.O. disagreed with this
analysis.

The Chief Justice opined that if the absence of funding for private schools creates a
distinction, it is not one based on religion. The publicly funded school system is secular.
The Education Act does not provide funding for any private school regardless of whether
it is a religious school or not. The government funds the secular school system so as to
provide "universally accessible educational opportunities for all" (at pp. 23-24 of the
decision).

In order for a breach of s. 15(1) to be established, a two-part analysis is required. Chief
Justice Dubin explained that first, it is necessary to determine that the distinction is one
based on characteristics that are either enumerated in s. 15, or, analogous to those
enumerated. Second, it must be established that the distinction is discriminatory.
Discrimination occurs where legislation imposes a burden or obligation on the group that
is distinctive, and not on others, or that benefits are being withheld that are available to
others because of the distinction. The Chief Justice held that the Education Act does not
draw any distinction based on religion, nor does it impose obligations or deny benefits on
the basis of religion.

His Lordship went on to consider whether there was adverse effect discrimination. To
describe adverse effect discrimination, reference was made to the decision in Ontario
Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at p. 551, 23
D.L.R. (4th) 321, where it was explained that a rule or standard adopted by an employer
may, on its face be neutral but may have the effect of imposing obligations, penalties, and
restrictive conditions on one employee or group of employees because of a special
characteristic but not on others. It was reiterated that the children of the appellants were
sent to publicly funded schools because of their religion, not because of the statute. The
Act does not impose "obligations, penalties, or restrictive conditions not imposed on
others" based on a special characteristic.

Dubin C.J.O. referred to and agreed with two cases decided in the United States, Brusca
v. Missouri, 332 F. Supp 275 (1971), affirmed 405 U.S. 1050, 92 S. Ct. 1493, and
Norwood v. Harrison, 413 U.S. 455 (1973), which stand for the proposition that children
who could attend publicly funded schools regardless of their religion, but choose to
attend private schools, are not discriminated against.

In the result, Dubin C.J.O., speaking for the court, Weiler J.A. dissenting on an issue
not relevant to this proceeding, held that neither the appellants' freedom of religion, nor
their right to equal treatment under the law, were infringed by the Education Act by
reason of the failure of the government to fund private religious schools.

III. EVIDENCE

In order to better appreciate the application of the law to the circumstances underlying
this application, a review of the evidence is appropriate.

A. Manohar Singh Bal, Darshan Singh

Mr. Bal and Mr. Singh are both members of the Sikh community in Ontario. In Toronto
alone, there are approximately 100,000 Sikhs. The Sikh community has developed plans
to establish a Sikh school in Ontario but it is very difficult for the community to support
such a plan financially. Therefore, no such school exists. Both Mr. Bal and Mr. Singh
have children who attend public school. Both are devout Sikhs. The manner in which
secular education is provided in the public schools is not conducive to encouraging Sikh
children to develop and continue to practise their Sikh way of life. It was asserted that
many Sikhs believe that in order for their religion and culture to survive, flourish and
remain strong in Ontario, it is essential to establish schools for their community. They
would like to establish a Sikh school in Ontario and point to British Columbia as an
example of where a Sikh school exists that is partially funded by the government.

B. Dwarka Doobay, Deokaran Sharma

Mr. Doobay and Mr. Sharma are members of the Hindu community in Ontario. Both
have children. Mr. Doobay's two children attend Catholic separate school. Mr. Sharma's
children attend public schools.

Mr. Doobay and Mr. Sharma's concerns resulting in the support of this application are
stated in paras. 11 and 12 of the appellants' factum as follows:

11. It is important to the members of the Hindu community for their
children's lives to have a religious dimension. The relationship between
parent and child is very important and an essential feature of the
education in accordance with the Hindu faith. It is also essential to
emphasize the relationship between student and teacher as one with a
spiritual dimension. Hindus also have a strong code of moral and
religious behaviour which they feel compelled by the principles of their
religion to impart to their children. This is not possible through the
secular public educational system. It is also important to religious
Hindus that their children learn Hindi and Sandsribt [sic] and to also
learn the Hindu code of dress, code of morals and principles of
behaviour. The Hindus consider that Hindi is essential and that their
children learn these religious principles in school as well as learning
about Hindu religious festivals, dietary practices and other spiritual
matters.
12. Some members of the Hindu community do not believe that the secular
public eduational system meets the unique educational needs of the
members of their community. They are concerned that their children
who attend the public schools are losing their religious faith and that
there is a dissipation of Hindu religious practice and belief within their

children as a result of their exposure to a secular and materialistic culture
and teaching which is pervasive in the public secular educational system.
This is a case notwithstanding that over the past 15 to 20 years Hindu
temples have been established in various communities throughout the
province and there has been an attempt to provide teaching for the
children of Hindu families in the temples to preserve the religion and
culture of the Hindu community.

It was further explained that, because of the cost, the community has not been able to
establish a Hindu school. In addition, for many people the cost of tuition for a private
school is prohibitive.

C. Albert Dreise, Marian Heinen Kits

Mr. Dreise and Ms. Kits are members of minority Protestant religious communities.
Both these applicants are Christian Reformed. Mr. Dreise's five children attend both an
independent Christian school and public schools. Both of the Kits' children attend
independent Christian schools. For both applicants it has meant financial hardship to send
their children to independent Christian schools. The reason that they feel that this
hardship is necessary was explained in para. 15 of the applicant's factum:

15. Albert Dreise and his wife want their children to have an education
which integrates biblical Christian values with the curriculum and social
life at a school. They believe it essential that their children attend a
Christian school because it plays such a large part in the children's life
and they spend so many hours at school. They want their children to
have an education which recognizes God as creator, redeemer and
sustainer of life. This is not taught in the secular public schools. They
believe it essential that their children attend a school which has more
than simply religious opening exercises but in which all subjects are
taught from a particular Christian perspective. They also want their
children to learn their particular values and beliefs of their religious
faith. This cannot be accomplished through teaching at home or at
church on Sunday, one day a week. Rather, they believe it must be
taught on a regular basis if their children are to grow up into competent,
integrated citizens of Canada. They send their children to a Christian
school "for positive reasons".

Mr. Dreise alleges that when his children attended in the public school system for a
period of time, they did not receive an education consistent with their religious faith. It
was his experience that the public schools teach and espouse their own set of secular
principles and values, which are not only inconsistent with the Christian religious
principles and values, but violate and undermine the beliefs in which his family wished to
have their children educated.

The Kits want to send their children to an independent Christian school which promotes
tolerance and respect for a pluralistic and multicultural society and which promotes the
values of tolerance, respect, love and caring among the school staff and amongst others in
our society.

D. Sajjad Hanif and Zeyad Sakaa

Mr. Hanif and Mr. Sakaa are members of the Muslim community in Ontario. Mr.
Hanif's children have attended the Islamic community school in Mississauga which
provides education until grade 8. His oldest child now attends a public high school. Mr.
Zeyad, who has, since swearing his affidavit, returned to his native Syria, has five
children, three of whom attended the Islamic community school in Mississauga. In 1992
he was required to take his children out of the school due to financial difficulties.

These applicants' concerns are articulated in para. 25 of the factum:

25. Like other minority faith communities in Ontario, Ontario Muslims like
Mr. Hanif and Mr. Sakaa are concerned that, if their children are
exposed to the influences of the secular public school system for at least
40 hours a week, it will have a significant influence on their spiritual and
moral development both because of the teaching provided in the school
and also because of the peer pressure of other children who do not share
the Islamic faith. Although parents attend mosque regularly and do
everything they can to teach Islamic values to their children in the home,
they recognize that their children spend a more significant amount of
time at the school and that this has an impact on the preservation on their
Islamic faith and culture. They believe that it is essential according the
principles of their Islamic faith to have their children educated at an
Islamic school, especially during their formative elementary schools
[sic] years.

The Islamic Community School in Mississauga is operated by the Islamic Society of
North America, which also operates two other Islamic schools in Ontario, one in Québec,
one in British Columbia and a number of schools in the United States. The applicants
state that the schools have a non-discriminatory admission policy and promote tolerance
and a respect for other faiths and other citizens in a pluralistic society. They were
established to maintain and preserve the Islamic faith and culture in North America. The
schools maintain a curriculum and academic standards established by the Ministry of
Education. They offer fully accredited courses, in addition to Islamic religious teaching
and religious practices. The entire curriculum is infused with Islamic principles.
Attendance at the schools is voluntary and children who are not Muslim have attended
the school and are not required to participate in religious practices.

E. Philip Friesen, Marvin MacDonald -- The Sturgeon Creek Alternative Programme

The Friesens and the MacDonalds are devout Christians who believe it is essential for
their children to be educated in a religious school in which the entire curriculum is taught
from the perspective of their faith. They believe that they cannot fulfil their religious
obligations as parents by simply teaching their children about their religious faith in their
home and at their place of worship and by sending them to a secular school during the
week. They believe that it is vital for their children's religious growth and for the
continuation of their "faith community", that the children be educated by teachers who
share their religious principles and values in a school environment which encourages
their particular faith tradition.

In the 1970s Mennonite families in the Stratton area established a private Christian
school known as the Stratton Christian Day School. They paid all the costs associated
with establishing and running the school, notwithstanding that they were a small rural
farming community. In 1977, the school entered into an agreement with the Fort Frances-
Rainy River Board of Education to become an alternative Christian school operating
within the local school board. This was done at the invitation of the board. The school
became known as the Sturgeon Creek Alternative Program ("SCAP"). The school
functioned under the authority of the Education Act and provided religious education
classes and had religious exercises. Attendance was voluntary and the admission policy
non-discriminatory. There has been, according to the factum of the applicants, no history
or evidence of religious coercion with respect to the running of the school. Students are
not required to participate in religious exercises.

The Friesens and MacDonalds both have children who attend or have attended SCAP.
Both Mr. Friesen and Mr. MacDonald are members of the Parents Advisory Committee
of SCAP.

SCAP was functioning well within the school board until Policy Memorandum 112 was
issued which ordered the school boards to stop the provision of religious education within
publicly funded schools. The school had to cease its religious curriculum, stop using the
Bible as a teaching tool, stop engaging in opening religious exercises or prayer, and
remove any religious literature and posters from the classrooms. Notwithstanding its
establishment as an independent religious school and successful history as an alternative
religious school meeting a diversity of needs for the religious community in the Fort
Frances-Rainy River school district, by dictate of the Ministry of Education, SCAP was
required to operate as a secular public school.

III. ISSUES

There were divergent positions taken by counsel as to the appropriate characterization
of the issue before the court. Mr. Charney, on behalf of the respondents, asserted that the
decisions in the trilogy constitute a complete answer to the issue as framed by him. Mr.
Jervis, on the other hand, stated that the issue falls outside the ambit of those cases and is
a matter of first impression to be decided on principles elicited from various authorities.

Mr. Jervis submitted that the issue ought to be framed as follows: Should a board of
education be allowed to accommodate alternative religious schools? This is
distinguishable from Adler in that the applicants seek a statement that the boards are
permitted to accommodate religious minority education. There is no issue of funding, in
his submission. By applying Policy Memorandum 112 across the board thereby removing
from boards the discretion to allow alternative religious schools the applicants are being
denied their Charter rights to freedom of conscience and religion, freedom of expression
and their right to equality.

Mr. Charney pointed out that a fundamental flaw with this proposition is that boards of
education have no rights; they are creatures of statute and all their powers are those
derived from the provincial government. The only powers inherent in the boards of
education are those conferred upon them by the government. Determining what a board
may do, therefore, is irrelevant. It is the parents who are the applicants in this matter; not
the board or the teacher. The constitutional issue in this proceeding is as between the
provincial government and the parents; no board of education is a party. Mr. Charney,
therefore, submitted that the three possible issues are:

1. the government must establish publicly funded denominational public schools

2. the government may establish publicly funded denominational public schools

3. the government cannot establish publicly funded denominational public schools

Both options 1 and 3 require a determination of whether parents have a right to have
publicly funded denominational public schools established for their children. This, he
submits, is clearly disposed of by Elgin County and Adler. Since the decisions in Elgin
County and Zylberberg, the government cannot establish denominational public schools
because the public school system must be non-denominational. The government has no
obligation to fund alternative or denominational schools as a result of the decision in
Adler. Mr. Charney argued further that, if he is incorrect and the issue ought to be framed
as option 2, that is, the government has an option to establish denominational schools,
then, the government has chosen not to establish such schools, which is constitutional.

In my opinion, the issue is:
Does the Charter give to the applicant parents the right to require the Minister
of Education to provide and fund denominational religious schools for
minority religious groups within the public school system? Is it a Charter
infringement for the government to fail to do so?

Mr. Jervis was candid to concede that, if the issue were to be crafted as above, given
the decisions in the trilogy, his position could not prevail. I agree. Nevertheless, I will
deal with his arguments as they were advanced.

IV. ANALYSIS

Mr. Jervis, on behalf of the applicants, submitted that Policy Memorandum 112, and ss.
28 and 29 of the regulations constitute an infringement of ss. 2(a), (b) and 15(1) of the
Charter because they do not make provision for minority religious education. He argued
that since members of minority religious groups must pay for private religious education
for their children, there is a state-imposed burden on their religious practices. The
situation facing minority religious groups is analogous to the situation found to be
unconstitutional in Zylberberg and Elgin County. Adler, it was argued, is distinguishable
because it deals with government "inaction". In this case, Policy Memorandum 112 and
the regulations constitute government action. Also, in support of his argument, Mr. Jervis
referred to the report of Dr. Shapiro, a former Deputy Minister of Education, called The
Report of the Commission on Private Schools in Ontario (October 1985) ("Shapiro
Report") which recommended that independent minority religious schools be established
in "association" with the school boards with at least 85 per cent funding. The issue here,
he asserted, is not a funding issue, and therefore, the decision in Adler is inapplicable.

A. Freedom of Conscience and Religion

In the Adler decision, the court contemplated whether the appellants' freedom of
conscience and religion was infringed because they had to pay for private schools in
order for their children to obtain a religious education. At p. 10, Dubin C.J.O. explained
the meaning of s. 2(a) rights:

The right involves the freedom to pursue one's religion or beliefs without
government interference, and the entitlement to live one's life free of state-
imposed religions or beliefs. It does not provide, in my view, an entitlement
to state support for the exercise of one's religion. Thus, in order to found a
breach, there must be some state coercion that denies or limits the exercise of
one's religion.

(Emphasis added)

Mr. Jervis argued that secularism is coercion. He suggested that, just as state-mandated
majoritarian Christian beliefs were taught in the public schools prior to Elgin County,
secularization means minority religious groups still do not have the opportunity to put
their religious views forward as part of their education. This they ought to have a right to
do through alternative religious schools. Secularism, he argued, is not neutral because the
effect of the system is not value neutral when applied to minorities because it undermines
their values. The current law proscribes indoctrinational teaching in the public schools.
The policy states that a school is not to give primacy to any religion either in exercises or
indoctrinational instruction which is exactly what the applicants wish to do in pursuance
of their religious beliefs. He stressed that indoctrinational instruction is the very reason
for the existence or establishment of alternative religious schools. It pervades every
aspect of the school activities. Secularism is coercive, and not neutral, he submitted,
because it rules out the existence of alternative religious schools. In addition, Mr. Jervis
argued that neither the Act, regulations nor the policy memorandum contain a definition

of alternative schools. As a result, he claimed, the policy and regulations are excessively
broad and, therefore, unconstitutional.

Given the trilogy there is no support in law for Mr. Jervis' position. The decisions in
Zylberberg and Elgin County are clear as to when a person's freedom of conscience and
religion is infringed. As stated by Mr. Jervis, there must be some form of coercion.
However, in Zylberberg and Elgin County there was indirect coercion compelling those
children who held different beliefs from the majority to be indoctrinated with the
majoritarian views. The public school system is now secular. Its goal is to educate, not
indoctrinate. This is very different from the goal in place at the time that Zylberberg and
Elgin County were decided. Secularism is not coercive, it is neutral. The logic is lacking
to support Mr. Jervis' contention that the secularization is a form of coercion and is not
neutral.

Chief Justice Dubin stated, at p. 18 of Adler:

There is no provision in the Education Act which in any way interferes with
the freedom of conscience and religion of the appellants. The public schools
cannot accommodate the appellants because the religious instruction that they
are seeking is not permissible in such institutions. What is really complained
of in this case is not government action, but government inaction which in the
circumstances of this case cannot be the subject of a Charter challenge. The
absence of funding in the Education Act for private, religious-based
independent schools does not contravene s. 2(a) of the Charter.

Mr. Jervis argued that Policy Memorandum 112 constitutes government action thereby
distinguishing the Adler decision which dealt with government inaction. Policy
Memorandum 112 requires public schools to be secular. In my opinion, it does not
constitute a form of government action which prefers one religion over another, nor does
it represent majoritarian religious views. This policy seeks to abolish distinctions in the
public school system which are based on religion. It dictates what must be done to
secularize the public school system. There is no foundation for the argument that this
policy constitutes government action which infringes a person's right to freedom of
conscience and religion. Rather, it evolved from judicial pronouncement concerning
compliance with the Charter.

Relating to Mr. Jervis' submissions, Dubin C.J.O.'s reasons in Adler are of relevance.
His Lordship stated at p. 18:

In this case, in my opinion, there was no government action that compelled
the appellants to send their children to private, religious-based independent
schools. They were free to send their children to secular public schools
maintained at public expense. Their decision not to do so was solely a
response to their religious beliefs and not a result of any government action.

Mr. Jervis argued that the applicants, here, do not have the choice of sending their
children to private schools because such schools do not exist. The reason, he emphasized,
that they do not exist is that the communities are unable to financially support their own
private religious schools. This is said to constitute coercion. On the contrary, and in any
event, this argument is the equivalent of the non-funding argument put forward in Adler,
the decision in which is determinative. Moreover, as discussed further below, this
argument detracts from Mr. Jervis' submission that the applicants are not seeking relief
under the Charter because of non-funding.

Mr. Jervis sought to narrow the focus of Adler in an effort to distinguish the present
case from it, by urging that Adler only applies to funding of private religious minority
schools. He underlined that the applicants are seeking a declaration that they be permitted
to apply to a board of education for status as an alternative school within the public
school system. He states that the decision to admit the schools is discretionary and as
such, does not amount to a claim for public funding.

Mr. Jervis submitted that his purpose in striking down Policy Memorandum 112 and
the regulations as they pertain to the applicants is not to include religious alternative
schools in the public school system de facto. Rather it is only to permit individual boards
of education to receive applications from individual schools. In my opinion, this point is
tangential to the issue that is at the root of this matter. Boards of education are statutory
bodies which draw their jurisdiction from the empowering legislation, the Education Act,
as administered by the Ministry of Education.

In my opinion, this argument fails. The effect of allowing a minority religious
alternative school in the public school system is government funding of minority
religious schools. As the court stated in Adler, the government is not obliged to provide
such funding.

In recapitulation, Mr. Jervis stated that the public school system, elementary and
secondary, in the period preceding the trilogy of Court of Appeal decisions on religious
education, was oriented toward the Christian majoritarian religious faith. This was not
insidious but, rather, was specifically mandated by the regulations to the Education Act.
Minority alternative religious schools, such as SCAP and Eden, were accepted within the
public school system and carried on in furtherance of their religious beliefs and practice,
while complying with all of the requirements of the Education Act. The impact of
Zylberberg and Elgin County is only to remove the majoritarian Christian influence, he
urged.

He continued with reference to the Shapiro Report in support of the argument that
independent minority religious schools should be "associated" with the school board in
continuation of the prior government stance. However, in cross examination, Dr. Shapiro
conceded that he had not re-evaluated his opinion and recommendations since the Ontario
Court of Appeal's decisions in Zylberberg and Elgin County. Dr. Shapiro's views are,
therefore, irrelevant given the subsequent pronouncements of the court. The decision in
Zylberberg and Elgin County cannot be read as narrowly as Mr. Jervis suggested.

One reason advanced by Mr. Jervis in support of the claim that the applicants' situation
is different from Elgin County and Zylberberg is that, in those cases, the court was asked
to consider non-secular regulations which provided an "opt-out" provision. He claimed
that alternative religious schools in the public school system constitute an "opt-in"
system, thereby rendering them constitutionally sound. This argument is flawed. In my
opinion, the "opt-out" provision dealt with in Elgin County and Zylberberg meant that
students were able to obtain permission to be exempt from religious exercises and
instruction pursuant to an exemption provision in the regulation. The onus was upon the
parent or child to obtain the exemption and in doing so the child was set apart from his or
her peers. By contrast the "opt-in" at the alternative religious schools referred to a
student's choice of enrolment. That is, a student is free to enrol in an alternative religious
school or go to a public secular school. Once a student is enroled, however, they must
participate in the religious education and exercises that are part of the curriculum and
they are expected, upon admission, to respect the rules of the school. To the extent that
the court in Elgin County stated that it was not giving any opinion regarding "opt-in"
programs, it must be pointed out that the term, as it is used in Elgin County, has no
parallel to its usage in the present circumstances.

Mr. Charney illustrated that "opt in" was not the true converse of "opt out" and thus
lawful by the following example. If the only school, or most convenient school, in a
neighbourhood is an Islamic religious school and a Christian child wished to attend, that
child will be admitted but must abide by the policies of the school including religious
exercises and instruction which would be implicit in the school's every aspect. This
would give rise to the exact problem that the decisions in Elgin County and Zylberberg
sought to rectify. Mr. Jervis' only response to this postulation was that it would never
occur. In my view, this is not a satisfactory rebuttal.

Mr. Charney drew the court's attention to the decision in Re Board of Education for the
Borough of North York and Ministry of Education (1978), 19 O.R. (2d) 547, 6 M.P.L.R.
249 sub nom. Toronto Hebrew Schools v. North York Board of Education (H.C.J.),
affirmed April 9, 1979 (Ont. C.A.), in which an application was brought for a declaration
concerning a proposal to integrate Hebrew schools into the public school system. This
proposal would have the effect of establishing a school or schools within the school
district in which religious courses would be mandatory. At pp. 559-60 J. Holland J. said:

As the legislation presently stands the question propounded must be
answered in the negative. While a pupil may not have a right to attend a
particular school within a school district as found in Crawford, there is a clear
right in each and every student in each and every school within the district, to
claim exemption from any religious studies. To say that this could be
overcome by grouping students who are prepared to accept instruction in a
particular religion in one school within a school district is illusory. Students
or parents on behalf of students may elect to opt out of any religious
instruction at any time and not merely prior to the commencement of a school
year when under the proposal put forward the applicant board could assign
students to another school. If the applicant board was correct in its proposal

to overcome the problem which I have been called upon to consider, we
could be faced with the situation where, within any school district, one could
find denominational schools each teaching its own special mandatory course
in religion. This would be a clear departure from the intention of the
Legislature in my opinion. Counsel for the applicant, when this question was
posed during the course of argument, stated that this was conceivable under
the current legislation and that the school board would be required, if
necessary, to build additional schools to so accommodate the pupils in the
different groups. I am unable to accept that submission as having any
persuasive force.
No school board has the power under the present legislation, in my opinion,
to establish a mandatory course of religious instruction in any school within
the school district under the board's jurisdiction.

Mr. Charney submitted that this case stands for the proposition that "opt-in" schools are
unlawful. It is noteworthy, though, that this decision was rendered before the Charter was
in force.

I accept Mr. Charney's submission that the characterization of the minority religious
schools as "opt-in" schools, with a view to avoiding the decisions in Zylberberg and
Elgin County is a misnomer. Such schools are indistinguishable from majoritarian
schools except for the fact that they are described as minority schools. As such, no basis
exists for their exclusion from the application of Policy Memorandum 112 and the
regulations. The same principles which produced Policy Memorandum 112, that is, the
decisions of the Court of Appeal in Zylberberg and Elgin County are applicable to them.
These principles are the product of Charter infringement; how then can they be said,
when applied uniformly, to constitute a further Charter infringement? In my opinion,
such a contention is untenable.

Mr. Jervis, while he conceded that Adler is determinative of the funding issue,
submitted that this case cannot properly be characterized as a funding question.
Consequently, he asserted, Adler is not applicable.

On the other hand, Mr. Charney emphasized that the evidence before the court,
submissions of counsel and the remedy sought make it apparent that the central thrust of
the applicants' position is to bring the religious minority alternative schools under the
aegis of the public school board so as to obtain the financial support of the public school
system. Indeed, the relief requested is replete with references to funding. If there is any
question concerning this, he urged that the court draw an inference to this effect. I agree
with Mr. Charney's analysis. The evidence is conclusive and, in any event, I am prepared
to draw such an inference. Central to the thrust of the applicants' position is the objective
of government funding. Since this is integral to the issue, the decision in Adler is
determinative of this proceeding.

Chief Justice Dubin concluded his reasons on the issue regarding the non-funding of
private religious schools and the appellants' freedom of religion at p. 19:

Even if it was open to the government to provide funding for private,
religious-based independent schools, I find no support anywhere for the
proposition that the absence of such funding interferes with one's freedom of
religion.

In my view whether such schools are inside or outside of the public school system is
immaterial.

At pp. 6-7 of the Adler decision Dubin C.J.O. stated:
Before detailing my reasons for arriving at that conclusion, it is important
to stress that it is not the role of the court to determine whether, as a matter of
policy, public funding of private, religious-based independent schools is or is
not desirable. That is for the legislature to decide. The sole issue before us is
whether the absence of such funding is consistent with the Constitution of
Canada.

The sole issue, here, is whether the failure to establish and fund religious minority
schools within the public school system infringes the applicants' freedom of conscience
and religion. In my opinion, it does not.

B. Freedom of Expression

Mr. Jervis submitted that Policy Memorandum 112 and ss. 28 and 29 of Reg. 298
infringe s. 2(b) of the Charter. It was argued that the teachers and students are no longer,
with particular reference to existing schools, allowed to express their views on religion,
hang religious posters, and other forms of expression because Policy Memorandum 112
and the regulations limit what can be said in a classroom.

Mr. Jervis referred to decisions of the Supreme Court of Canada on the issue of
freedom of expression. He summarized a test he derived from that court's decisions in
Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, 39 C.R.R. 193;
Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, 4 C.R.R.
(2d) 60; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, 36 C.R.R. 1, and
Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084, 16 C.R.R. (2d) 240. In his factum
he stated the test as follows:

The First Step

(1) Does the Charter applicant's expressive activity convey or attempt to
convey meaning? [or]
(2) Does the expressive activity further one of the interests underlying the
right to freedom of expression being the pursuit of truth, the
encouragement of social, community and political activity, or the
fostering of the self-fulfilment of the speaker or the listener?

If either of these two questions is answered affirmatively, then the expressive

conduct is prima facie protected within s. 2(b), unless it falls within one of
the three narrow exclusions which exclude:

(1) forms of expression that involve rape, murder, or other similar
activities; and either
(2) expressive activity involving the use of or access to public property
that is incompatible with the "essential" or "primary" function of that
public property (per Lamer C.J.) or
(3) the use of or access to public property for expressive purposes that
does not promote the interests and principles underlying freedom of
expression (per McLaughlin J. [sic])

The Second Step

128. Once a Charter applicant establishes that his or her expressive activity
is protected under s. 2(b), the Court must consider in the second step of
the general analytical test the purpose and effect of the law and
determine:

(1) whether the purpose of the impugned legislation is to restrict protected
expression; or
(2) whether the effect of the impugned legislation or conduct is to restrict
his or her expressive activity which promotes one of the interests or
values underlying freedom of expression.

Without quarrelling with counsel's statement of the test, dealing with the First Step, it is
necessary to identify the applicant. In this case, the applicants are parents of children
attending school. Next, the "expressive activity" must be defined. This is said to be
teachers' and students' expression of their religious views. Since this expressive activity
does not fall within any of the three exclusions in the test, then it is necessary to consider
the second step. This step involves an analysis of the purpose and effect of the law. Mr.
Jervis submitted in his factum that:

129. . . . Furthermore, it is the intention of the Policy and Regulation to
specifically limit a form of expression with respect to religious matters
and, specifically to limit and preclude religious teaching of an
indoctrinational nature. As such, it is the intention of the Policy and
Regulation to limit freedom of expression.

In my opinion, the purpose of Policy Memorandum 112 and the regulations is to
secularize the public school system, not to restrict protected expression. Their effect is to
promote secularism in the public schools and not to restrict expressive activities which
promote the interests or values underlying the freedom of expression. The stated
objective is the protection of minority rights.

But, in reality none of the parties to this application have had their expression
restricted. A student is not prevented from speaking his or her beliefs. Indoctrination is
limited but not expression. Teachers are not parties to this application but, in any event,
there is nothing to preclude a teacher from expressing his or her beliefs outside of the
school curriculum. The only limitation is that teachers, and the school, are not to
indoctrinate or give primacy to any religion.

Mr. Jervis relied heavily on R. v. Keegstra, [1990] 3 S.C.R. 697, 3 C.R.R. (2d) 193, in
argument, for the proposition that a teacher's freedom of expression is infringed if they
are not able to depart from the school curriculum. This case has no application to the case
at bar. Mr. Keegstra was a teacher challenging a Criminal Code provision under which he
had been charged. The question before the court was whether a law which prohibited the
dissemination of hate propaganda infringed his Charter rights. The court held that the
section infringe Mr. Keegstra's right to freedom of expression but that the section is
justifiable under s. 1. In the present case, the teachers are not applicants, the parents'
rights are not infringed and the students are restricted only by the curriculum. In my
view, the Keegstra decision does not stand for the proposition which Mr. Jervis asserts:
that a teacher may teach whatever he or she desires and cannot be bound by any
particular curriculum.

Neither Policy Memorandum 112 nor ss. 28 and 29 of Reg. 298 infringe s. 2(b) of the
Charter.

C. Equality Rights

Mr. Jervis submitted that the applicants' right to equality pursuant to s. 15(1) of the
Charter has been breached. This claim, he urged, does not arise from the distinction
between the funding of Roman Catholic schools, as juxtaposed to other minority faith
communities. Rather, he argued, the distinction occurs because certain minority religious
groups cannot benefit from a secular public school system due to their religious beliefs.
Therefore, they are compelled by the regulations and Policy Memorandum 112 to fund
their own religious schools because they cannot, as a result of their religious beliefs, in
good faith, participate in the secular educational school system provided by the Ontario
government. This denial of public funding of education for religious minority education
means that minority religions must bear the costs of education compared with the
majority, who are able to enjoy the benefit of the secular public schools. This gives rise to
the s. 15 complaint.

In Adler, Dubin C.J.O. considered the decision of the Supreme Court of Canada in
Reference re Act to Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148, 36 C.R.R.
305 ("Bill 30 Reference"), to be "quite decisive of the discrimination issue in these
appeals." (at p. 20). The discrimination issue before the Court in Adler was framed by the
appellants as follows, at p. 19:

Counsel for the Adler appellants, although not seeking to attack the full
funding of Roman Catholic separate schools in the Province of Ontario,

submitted that by denying funding for Jewish Day Schools while funding
Roman Catholic separate schools, the Adler appellants were denied the equal
benefit of the law contrary to s. 15 of the Charter.

Mr. Jervis, argued that Adler is distinguishable from the case at bar in that Dubin C.J.O.
held that there was no discrimination since the appellant parents had access to private
religious schools. By contrast, Mr. Jervis said that for certain of the applicants here, there
are no private religious schools, and so, Adler has no application.

Dubin C.J.O. gave the decision in the Bill 30 Reference a broad interpretation when at
p. 23, he said:

In my opinion, s. 93(1) of the Constitution Act, 1867, and s. 23 of the
Constitution Act, 1982 define the extent of the constitutional obligations of
the legislature with respect to denominational and language instruction.
Under such circumstances, no claim based on alleged unequal treatment
under s. 15(1) may be asserted by an individual in the protected areas of
minority language education rights and denominational education rights.

(Emphasis added)

The applicants' argument overlooks the fact that there are those of the majority, in
circumstances like Elgin County, who are now denied access to their religious exercises
and instruction. As stated the public school system is secular. No one religion is
favoured. Fundamental to the educational system is teaching without religious
indoctrination.

Chief Justice Dubin described the public school system, in the context of a s. 15(1)
challenge at pp. 23-24:

The publicly funded educational system provides universally accessible
educational opportunities for all, regardless of their ethnic, racial or cultural
background, social or economic status, age or religious preferences. The
Education Act provides access to public education without regard to religious
beliefs or conviction. The public school system is solely secular and, in my
view, because it is secular, it cannot found a claim of discrimination because
it does not provide public funds for religious education under private
auspices. The Education Act does not provide for public funding of any
private school, be it denomination or otherwise.

This analysis is applicable to the matter at hand. Although the Adler decision dealt with a
quest to obtain public funding in private schools, the goal there was the same as it is here.
That is, by seeking to place alternative minority religious schools within the public school
system, the applicants are, directly or indirectly, seeking public funding for minority
religious schools. Despite Mr. Jervis' efforts to frame the question differently, that is the
clear sense of what is sought in the present application.

It was argued that the policy memorandum and the regulations constituted adverse
effect discrimination. That is, while the government action may be neutral on its face, the
effect is to discriminate against an enumerated group in s. 15(1). Hence, although the
purpose of the regulations and policy memorandum are not unconstitutional, the effects
of them are. Mr. Jervis submitted that the final test is whether the government prohibition
through Policy Memorandum 112 and the regulations is just, fair, and constitutional. He
submitted that it was not.

Dubin C.J.O. explained adverse effect discrimination and its application to the case
before that court at pages 24-25:

I recognize that a statute can on its face be neutral and yet can constitute
adverse effect discrimination.
In Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2
S.C.R. 536 at p. 551, 23 D.L.R. (4th) 321, McIntyre J. considered adverse
effect discrimination, as follows:

A distinction must be made between what I would describe as direct
discrimination and the concept already referred to as adverse effect
discrimination in connection with employment. Direct discrimination
occurs in this connection where an employer adopts a practice or rule which
on its face discriminates on a prohibited ground. For example, "No
Catholics or no women or no blacks employed here." . . . On the other hand,
there is the concept of adverse effect discrimination. It arises where an
employer for genuine business reasons adopts a rule or standard which is on
its face neutral, and which will apply equally to all employees, but which
has a discriminatory effect upon a prohibited ground on one employee or
group of employees in that it imposes, because of some special
characteristic of the employee or group, obligations, penalties, or restrictive
conditions not imposed on other members of the work force.

Again, the Education Act does not impose "obligations, penalties, or
restrictive conditions not imposed on others" based on some special
characteristic. As stated earlier, it was their religion, and not the statute, that
caused the appellants not to send their children to the publicly funded school
system.

(Emphasis added by Dubin C.J.O.) Similarly, in this case, it is not the policy
memorandum and regulations which impose obligations, penalties, restrictive conditions
on the applicants, and not on others. Instead, it is the applicants' choice of education for
their children. The public school system is secular, it does not present the opportunity for
education in any particular denomination or faith. The objective is to provide non-
denominational education. Should parents desire that their children have a religious
education they must assume the cost. This does not mean that there is adverse effect
discrimination. The government prohibition is just, fair and constitutional.

D. Section 1

Given the findings with respect to ss. 2(a), (b) and 15(1) there is no need to consider
whether the policy memorandum and ss. 28 and 29 of the regulations are justifiable under
s. 1 of the Charter.

V. CONCLUSION

The seminal decisions in the trilogy are binding on this court. Although the
circumstances of the applicants before the court in this case are varied, the principles in
those decisions bear directly on these factual circumstances so that, given those decisions,
the applicants cannot succeed. I therefore find that Policy Memorandum 112 and ss. 28
and 29 of the regulation do not infringe ss. 2(a), (b) and 15(1) of the Charter. To grant the
relief sought in this application would require that the court undo what the Ontario Court
of Appeal has decided in Zylberberg, Elgin County and Adler.

The parties may make submissions regarding costs.

Application dismissed.

Bal Et Al And Attorney General For Ontario Et Al

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