R.C. v. District School Board of Niagara, 2013 HRTO 1382

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.C. and S.C. by her next friend R.C.

Applicants

-and-

District School Board of Niagara

Respondent

-and-

Ontario Human Rights Commission and Canadian Civil Liberties Association

Intervenors

DECISION

Adjudicator: David A. Wright

Date: August 13, 2013

Citation: 2013 HRTO 1382

Indexed as: R.C. v. District School Board of Niagara

APPEARANCES

R.C. and S.C. by her next friend R.C., Applicants

Self-represented

District School Board of Niagara, Respondent

Derek Bell and Ranjan Agarwal, Counsel and Jessica Mathewson, Student-at-Law

Ontario Human Rights Commission, Intervenor

Cathy Pike and Sunil Gurmukh, Counsel

Canadian Civil Liberties Association, Intervenor

Stuart Svonkin and Sarah Whitmore, Counsel

Introduction

1This Application relates to events that occurred when S.C. was in grade five at a school in the respondent District School Board of Niagara (the “Board”). Under Board policy at the time, the Gideons International In Canada (the “Gideons”) were permitted to distribute their version of the New Testament to grade five students in a Board school, if the principal in consultation with the school council agreed. The Gideons were the only religious group permitted to do so. Parental consent forms were distributed to the class, and the distribution to students whose parents had agreed took place outside class time. When S. was in grade five, she brought home a consent form, although the distribution to her class never in fact happened. The School Council subsequently decided not to approve the distribution.

2The C. family identifies as atheist. S.C. and her father, R.C., each of whom has made an Application, allege that the Board policy discriminated against them with respect to services because of creed, contrary to s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). After the events in question, the Board changed its policy to allow other religious organizations to also distribute religious texts in the schools in certain circumstances, although no materials other than the Gideon Bible have been distributed. The applicants assert that the policy change has not addressed the discrimination and that the new policy is also discriminatory. They seek no financial compensation, but ask that the Tribunal order that the policy be rescinded and that no religious literature of any kind be distributed in the schools.

3These facts and the parties’ thoughtful arguments on all sides raise various significant issues, including whether atheism falls within the meaning of “creed” in the Code and whether optional creed-related activities may take place in a public school outside school hours. For the reasons that follow, I find that discrimination because a person is atheist falls within the definition of creed, that the Board discriminated against the applicants through its policy permitting only the Gideons to distribute religious literature in schools, and that the new policy does not comply with the Code. The Code does not require, however, that the public schools be free of optional religious activities outside classroom hours, so long as all creeds are treated with substantive equality. I leave to the elected Board trustees in Niagara to decide whether to continue to permit distribution of literature from creeds in their schools and if so, to design a new policy that complies with the Code. I remain seized to deal with any disputes that may arise over the next year about whether any new policy complies with the Code.

FACTUAL BACKGROUND

4The procedural history of this matter, including the granting of intervenor status to the Ontario Human Rights Commission (“Commission”) and the Canadian Civil Liberties Association (“CCLA”), is set out in two previous Interim Decisions: 2012 HRTO 583 and 2012 HRTO 1591. The hearing was held on February 5 and 6, 2013.

5At the hearing, R.C. testified on behalf of the applicants and Warren Hoshizaki, Director of Education, testified on behalf of the respondent. The parties do not disagree about the relevant facts.

R.C. and S.C.

6The C. family has three children; S. is the youngest. She is now in grade eight. R. describes himself as an atheist or non-theist. He rejects the idea that there is a deity of any kind and believes that the suggestion there is one is false. When asked whether his daughter is an atheist, R. noted that there is some debate about whether children are capable of having religious views, and testified that he is hesitant to label a child by her parents’ beliefs. However, R. says that anyone discussing the issue with her would conclude that S. is a non-believer.

Board Policies

7When the Board was formed in 1998, it adopted the approach to religious publications of one of its predecessor boards, the Lincoln County Board of Education, which allowed only the Gideons to distribute religious materials in the schools. Board Policy G-22, Religious Publications, dated October 1998, read as follows:

It is the policy of the District School Board of Niagara to accept the offer of the Gideon’s [sic] International in Canada to present New Testaments to all Grade 5 pupils who wish to have them, in schools where the Principal, in consultation with the School Council, agrees.

8Administrative Procedure 1-12, The Distribution of Religious Publications/ Presentations as Authorized by Board Policy, dated November 1998, reads as follows:

1. No student should receive a religious publication without a signed parent permission slip.

2. Any religious presentation should be held outside of instructional time and preferably after school hours (this may not be practicable in bused schools).

3. Attendance by students at the religious presentations must be optional. It is advisable for elementary school Principals to seek parental permission in these circumstances. Secondary Principals are to use their discretion.

4. A staff member, preferably the Principal or Vice-Principal, should be in attendance when the religious publications are being presented.

5. NO religious instruction or indoctrination is to be allowed during the presentation.

The “New Testament Answer Book”

9The Gideon Bibles are small pocket-size books, covered with portraits of diverse young people, with the title “The New Testament Answer Book” on the front and “the little red answer book” on the back. Before the Biblical text, which includes the New Testament, Psalms and Proverbs, there are various preliminary sections. These include indexes of specific passages of the Bible including those that assist with “life’s big questions”, “where to find help” for specific types of situations, “Christian Virtues”, and various Bible stories. The Ten Commandments are included, as is the text of John 3:16 in multiple languages.

10The first two pages are called “Directions for Your Journey”. This section begins and ends as follows:

No matter where you are on your personal journey, we’re glad you’re holding this book. It will help you navigate the twists and turns of your life and point you to the only One who can truly help you find your way Home.

Hang onto this book and draw from it regularly. The key message you’ll discover is that God loves you. No matter what you’ve done or who you’ve become today, He loves you and forgives you. All He’s asking is that you surrender your old life to Him and begin a brand new one.

Are you ready to start a new journey in your life?

11The section called “Reading Daily” states that the “Book is given to you with only one request – that you read it every day”. It tells the reader:

Read prayerfully. Pray before you read and afterwards. Ask God to open your mind to understand His Word. Ask Him to reveal to you Jesus Christ as Saviour and Lord.

The November 2009 Distribution and the First Request to Distribute “Just Pretend”

12In 2004, when his oldest child was in grade 5, R.C. decided to attend the Gideons’ presentation to see how it unfolded. In the library after class, the Gideons’ representative made a short verbal presentation that included encouraging the children to read the Bible each day. There was a new principal when the family’s middle child was in grade five, and the issue did not arise because that principal did not allow the distribution.

13In November of 2009, after another new principal took over, the following note was sent home with grade five students, including S.C.:

Dear Parents/Guardian of Grade 5 Pupil:

Each year around this time, the Gideons International offer a copy of the New Testament (part of the Bible) to all students in Grade 5. This presentation will be made in this school in the near future. It will be done in compliance with the policies of the District School Board of Niagara. The book is free of charge, participation is voluntary, and the presentation is made without religious instruction.

Board policy requires that in order for a child to receive the book, signed permission must be provided by the parent or guardian. If you permit your child to receive it, please sign the attached permission form and return it to the school before Tuesday November, 24, 2009. [sic]

14The applicant contacted the principal and proposed that he be permitted to distribute a book called “Just Pretend: A Freethought Book for Children”, which promotes atheism. It is published by the “Freedom From Religion Foundation”. The book compares God to Santa Claus as something that is “just pretend”. It portrays God as a myth that some people believe in but that is demonstrably not true. It suggests that “the Bible, the Koran and the Vedas are filled with mistakes and wild stories”. It concludes as follows:

No one can tell you what to think. Not your teachers. Not your parents. Not your minister, priest or rabbi. Not your friends or relatives. Not this book.

You are the boss of your own mind. If you have used your mind to find out what is true, then you should be proud. Your thoughts are free.

If you are an atheist, then you know that God Is Just Pretend.

15Although the book reflects his beliefs, R.C.’s purpose in making this request was not to promote atheism among the school’s grade five children. He believed that other parents might be upset about being asked to consent to their children receiving such materials in the same way he felt offended in being asked to consent to his children receiving the Gideons’ materials, and it would encourage a change in policy to eliminate the distribution of religious texts. As he stated in a subsequent letter to the school council:

We believe that if non-theistic materials were distributed in an Ontario Public School that fact would set off an enormous controversy. People would insist that the Public School system is not the place for people with a religious agenda; and that is exactly our point! Gideon’s [sic] are a group with a religious agenda, and the DSBN, and this Principal, are actively acting to allow them access to the schools to forward that agenda.

16At the meeting of the School Council (made up of parents) on November 30, 2009, it decided that neither the Gideon Bible nor Just Pretend should be distributed in the school. On December 3, 2009, the principal wrote to the parents who had consented advising them that the distribution would not be taking place.

Changes to the Policy

17R.C. continued advocating for changes to the Board’s practices, and a lawyer sent a letter on his behalf in December 2009 alleging that Policy G-22 violated the Code and asking that it be rescinded. This Application was filed in January 2010 and delivered to the respondent in March 2010.

18The Board’s Policy Advisory Committee considered the issue and decided between three options: (i) rescinding Policy G-22; (ii) expanding it to make it more inclusive; or (iii) revising it to reflect that there be no distribution of religious publications during instructional time or before or after school hours. A change intended to implement the second option was approved by the Policy Advisory Committee and the Board in February 2010. Although it was reviewed, there were no changes to Administrative Procedure 1-12.

19Policy G-22 now reads as follows:

Any requests for the distribution of religious publications in schools must be approved by the Director or designate and subsequently by the Principal, in consultation with the School Council and with pre-approved parental consent.

Application of the Policy

20R.C. made a second request to distribute “Just Pretend” in early 2010 after Policy G-22 was amended. In a letter signed by Mr. Hoshizaki, the Board refused the request for two reasons. First, the Board took the position that pursuant to Canadian Civil Liberties Assn. v. Ontario (1990), 1990 CanLII 6881 (ON CA), 71 O.R. (2d) 341 (“CCLA”) school boards are “entitled to sponsor the study of all religions without imposing the view of any particular religion”. It stated that atheism is not a religion pursuant to the criteria set out in Syndicat Northwest v. Amselem, 2004 SCC 47, [2004] 2 S.C.R. 551. Second, the letter stated that “Just Pretend” is a “secondary publication as opposed to a globally recognized sacred text or authoritative source of any religion (or even any belief)” and not listed in the Multifaith Information Manual (“MIM”) created by the Ontario Multifaith Council. The letter stated that decisions about which materials to approve are based on this manual, which “lists the recognized sacred texts of which there is global association and recognition”.

21After receiving this letter, R.C. contacted representatives of various organizations listed in the MIM and encouraged them to submit a request to the Board to distribute religious materials. The only request made in response was submitted on May 31, 2010 to the Board’s general inquiries e-mail by the Secretary of the Canadian Council of Imams (“Council of Imams”) and reads in relevant part as follows:

We at the Canadian Council of Imams extend gratitude for opening your schools to receive and distribute MultiFaith literature. How can we send some books and brochures on the Islamic Faith?

22The response was sent by e-mail on July 27, 2010 by the Board’s Consultant: Cultural and Linguistic Diversity and reads as follows:

Thank you for your request surrounding distribution of religious materials. Here is a link to the DSBN Policy: [internet link omitted]

Also, I am pleased to let you know that our school libraries and classrooms have a very wide and inclusive collection of books, including books about Ramadan and other aspects of Islamic culture, as well as other faith groups. We also recognize and value multifaith celebrations in schools.

If you would like further information, please feel free to contact me.

23In late 2010, the applicant asked what groups had been approved to distribute religious material in public schools. The Board’s in-house lawyer replied in December 2010, advising that the Board had received one request to distribute Gideon Bibles, which was approved because the text was listed in the MIM. The letter stated that this was the only request the Board had received other than his.

24The MIM is produced by the Ontario Multifaith Council on Spiritual and Religious Care, which works in support of chaplains and spiritual caregivers. It appears to be meant primarily as a resource for individuals providing spiritual care to individuals of multiple faiths. It has chapters on Bahá’í, Buddhism, Christianity and 23 Christian denominations, Hare Krishna, Hinduism, Islam, Jainism, Judaism, Native Spiritual Traditions, Rastafari, Sikhism, Wiccan Church of Canada, and Zoroastrianism. For each, the MIM provides information about religious practices, including the titles of any scriptures and sacred writings required. The chapters are typically prepared by adherents of that faith.

25In the December 2010 correspondence with R.C., the Board suggested that the MIM allows it to objectively determine whether a text falls within its policy “by reference to an accepted list of religious texts”. Mr. Hoshizaki’s testimony made clear, however, that this is not the case. First, the MIM does not include every creed. Falun Gong (Huang v. 1233065 Ontario, 2011 HRTO 825) has been found to be a creed under the Code, but is not referred to in the MIM. Mr. Hoshizaki stated that if someone sought to distribute Falun Gong literature, he or his staff would have to do further research. Second, the MIM does not always clearly set out what are sacred as opposed to secondary texts. For example, the first chapter, on Bahá’í, lists as scriptures “Works by the Báb (forerunner), Baháu’liáh, and His son Abdu’l-Baháí. The works of Shoghi Effendi (grandson of Abdu’l-Bahá’) are considered authoritative, but not sacred”. When asked in cross-examination by Commission counsel what he would do if someone wanted to distribute a work of Shoghi Effendi, Mr. Hoshizaki stated that Board staff would have to do research to assist in making a decision.

26The absence of clear guidance in the MIM about a proposed text is not limited to Bahá’í. The section on the Catholic Church states as follows under the heading, “Scriptures and Religious Books”:

• The authorized translations of the bible used by Roman Catholics include the New Jerusalem, New American and New Revised Standard Version (Catholic edition).

• Other religious books include lectionaries and sacramentaries used in the celebration of Mass (also called the Eucharist), Sunday and daily missals for general use, the Roman Ritual (now ordinarily divided into separate liturgical books for the celebration of each sacrament) and hymnals (e.g. Catholic Book of Worship, Glory and Praise).

Books and booklets of traditional and modern prayers for private use are available in a variety of forms.

It is not clear whether a book of modern Catholic prayers, for example, would be considered a globally recognized sacred text or authoritative source, or instead secondary materials.

ANALYSIS

Does Atheism Fall Under the Ground of “Creed” In the Code?

27s. 1 of the Human Rights Code reads as follows:

Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

“Creed” is translated in the French version of s. 1 as “la croyance”.

28The respondent submits that atheism is a not a creed, and that the Application should be dismissed on the basis that the Code does not protect against discrimination because a person is atheist. The applicant and the CCLA take the position that atheism is a creed. The Commission takes the position that the issue need not be decided, because even if atheism is not a creed, discrimination against a person who does not have a creed is included in the protection against discrimination because of creed. The Commission notes that it is revising its policy on creed and does not ask that the Tribunal adopt the definition of creed in its 1996 Policy on creed and the accommodation of religious observances.

29As I wrote in Landau v. Ontario (Finance), 2011 HRTO 1521 at para. 12:

While it may be helpful to refer to particular rules of statutory interpretation, the fundamental principle in interpreting any statute, including the Code, is to take a purposive and contextual approach. Statutes are interpreted in “their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 1; Rizzo v. Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21; Ontario Human Rights Commission v. Christian Horizons, 2010 ONSC 2105 at para. 42. In applying this principle in the context of the Code, rights are to be interpreted broadly and exceptions narrowly.

30In my view, a purposive interpretation of the prohibition on discrimination because of “creed” in the Code includes a prohibition on discrimination because a person is atheist. To accept the respondent’s submissions would be to find that the Code only protects core beliefs about oneself, humankind and nature linked to one’s self-definition when they accept the existence of a deity or have particular practices. The purpose of prohibiting discrimination because of creed includes ensuring that individuals do not experience discrimination in employment, services and the other social areas in the Code because one rejects one, many or all religions’ beliefs and practices or believes there is no deity.

31It is well-established that creed in the Code encompasses, at least, discrimination because of religion: Loomba v. Home Depot Canada, 2010 HRTO 1434 at para. 96; Ataellahi v. Lambton County (EMS), 2011 HRTO 1758 at paras. 6-8. Protection against discrimination because of religion, in my view, must include protection of the applicants’ belief that there is no deity, a profoundly personal belief about the lack of existence of a divine or higher order of being that governs their perception of themselves, humankind and the world. The applicants’ beliefs relate to religion, and engage the purpose of ensuring that people are treated equally regardless of their views and practices on religious matters. It is not necessary in this case to decide whether creed may in some cases encompass core beliefs about fundamental matters other than religion.

32In defining what is included within the ground of creed, the Tribunal has often relied on freedom of religion jurisprudence under s. 2(a) of the Canadian Charter of Rights and Freedoms and to Charter values. Indeed, the Tribunal is required to consider Charter values when interpreting statutes, particularly those that are ambiguous. See Doré v. Barreau du Québec, 2012 SCC 12 at para. 35; Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42; Taylor-Baptiste v. Ontario Public Service Employees Union, 2013 HRTO 180 at paras. 32-36. Because freedom of religion under s. 2(a) of the Charter encompasses both the freedom to practice religion and a requirement of non-discrimination as between religions, this jurisprudence can be particularly useful in dealing with creed claims: Dallaire v. Les Chevaliers de Colomb, 2011 HRTO 639 and Huang, above at para. 29.

33In R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295, the seminal case on freedom of religion, the Supreme Court held that protection of freedom of religion and conscience under the Charter includes both belief and non-belief. At paras. 94 and 123, Dickson C.J. wrote:

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. But the concept means more than that…

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 injury his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own. Religious belief and practice are historically prototypical and, in many ways, paradigmatic of conscientiously-held beliefs and manifestations and are therefore protected by the Charter. Equally protected, and for the same reasons, are expressions and manifestations of religious non-belief and refusals to participate in religious practice.

[emphasis added]

34In R. v. Edwards Books and Art, 1986 CanLII 12 (SCC), [1986] 2 SCR 713, the Court stated as follows at para. 97:

The purpose of s. 2(a) is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being. These beliefs in turn govern one’s conduct and practices.

[emphasis added]

35In S.L. v. Commission scolaire des Chênes, 2012 SCC 7, the Court held that the protection against discrimination because of religion within s. 2(a) includes protection of the absence of religious beliefs. The Court held as follows, at para. 32:

Therefore, following a realistic and non-absolutist approach, state neutrality is assured when the state neither favours nor hinders any particular religious belief, that is, when it shows respect for all postures towards religion, including that of having no religious beliefs whatsoever, while taking into account the competing constitutional rights of the individuals affected.

[emphasis added]

36The respondent relies on the following passage from Amselem, above, which it says precludes the finding that atheism falls under the protection against discrimination because of creed:

In order to define religious freedom, we must first ask ourselves what we mean by “religion”. While it is perhaps not possible to define religion precisely, some outer definition is useful since only beliefs, convictions and practices rooted in religion, as opposed to those that are secular, socially based or conscientiously held, are protected by the guarantee of freedom of religion. Defined broadly, religion typically involves a particular and comprehensive system of faith and worship. Religion also tends to involve the belief in a divine, superhuman or controlling power. In essence, religion is about freely and deeply held personal convictions or beliefs connected to an individual’s spiritual faith and integrally linked to one’s self-definition and spiritual fulfilment, the practices of which allow the individuals to foster a connection with the divine or with the subject or object of that spiritual faith.

37This passage does not suggest that the Court now requires, contrary to its clear statement in Big M, that a belief system accept the existence of a deity and/or have an organized set of practices to fall within the protection of freedom of religion or against discrimination because of creed. The belief that there is no deity, superhuman or controlling power is equally connected to “spiritual faith, self-definition and spiritual fulfilment” as a belief that one exists. The Court in Amselem notes that religion tends to involve a belief in such a power, and typically involves a particular and comprehensive system and faith and worship, but it does not state that these are requirements for a set of beliefs about the nature of the world and the divine to fall within freedom of religion. Amselem also relies upon the above quotation from Edwards Books, and in no way repudiates the statement in Big M that non-belief falls within freedom of religion. Finally, the more recent decision in S.L. makes clear that non-belief is protected under freedom of religion.

38The interpretation proposed by the respondent would lead to results that are clearly inconsistent with the purpose of protecting against creed-based discrimination. It would allow discrimination against persons because they do not accept a particular religion, so long as they are not adherents of another set of beliefs and practices. The Tribunal recently recognized, in Freitag v. Penetanguishene (Town), 2013 HRTO 893 at paras. 19-23, that the protection against creed-based discrimination can be engaged by the fact that a person does not share the religious beliefs of others, and the respondent’s position is inconsistent with that analysis.

39The difficulty with the respondent’s position is illustrated by the following example of its consequences. If an employer decided to dismiss all employees who did not share the religious faith of the president of the company, those who belonged to other religions would have a claim, but not those who are atheist, agnostic or who do not have a view on religion. It would allow the province, a service provider or an employer to enforce particular views and practices on those with atheist views or no clear views about such matters, but not on those who actively believe in a different religion. This is not a purposive interpretation of the Code.

40I also rely on the fact that international human rights law includes protections for atheism as part of freedom of religion. As the Supreme Court held in Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 SCR 817, at para. 70, “the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review”. Article 18(1) of the International Covenant on Civil and Political Rights, which has been ratified by Canada, reads as follows:

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.

41Although the wording includes “religion or belief”, Article 18 in my view has the same purposes as the protection of creed in the Code. Article 2 of the 1993 General Comment on this article by The Office of the High Commissioner for Human Rights, General Comment No. 22, UN Doc. CCPC/C/21/Rev.1/Add/4L makes clear that atheistic beliefs and non-belief are protected in this fundamental international human rights treaty:

Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief. The terms “belief” and “religion” are to be broadly construed. Article 18 is not limited in its application to traditional religions or to religions and beliefs with institutional characteristics or practices analogous to those of traditional religions.

42Finally, I rely upon the French translation of “creed” in the Code, croyance. This reflects a broader understanding of creed that reflects beliefs rather than only identification with a formal set of religious views.

43For all these reasons, I conclude that a liberal and purposive interpretation of the prohibition on discrimination because of “creed” includes atheism and that discrimination because a person is atheist is prohibited by the Code.

Did the Respondent Discriminate Against the Applicants when its Policy Permitted Only the Gideons to Distribute Religious Literature in Schools?

44Allowing only the Gideons, a Christian group, to distribute religious literature in the Board’s schools under the version of the policy in place when S.C. was in grade five discriminated against the applicants. S.C. was a student and R.C. was a parent in a school board where, pursuant to policy, representatives of one creed and no others, including atheists, were permitted to distribute religious texts to students in the schools. They were asked to consent to S.C. receiving the text of one creed with which she did not identify and there was no opportunity for her to receive literature from any other creed that wished to provide it.

45There was considerable argument about the appropriate legal analysis to determine whether there is substantive discrimination following the Supreme Court’s decision in Quebec (Attorney General) v. A., 2013 SCC 5. There is no need for an extensive discussion of the test in this Decision. I assume, for the purposes of this case, that the Charter jurisprudence on the approach to discrimination applies in these circumstances, as argued by the respondent. The majority of the Supreme Court’s analysis in A. of the approach to discrimination is set out in the reasons of Abella J., since Deschamps J., speaking on behalf of three judges, expressed her agreement with that analysis (see para. 385) as did McLachlin C.J. (see para. 418), although the Chief Justice added some additional comments.

46The analysis involves one key question: whether there has been a violation of the norm of substantive equality (para. 325). This involves looking at whether the conduct is discriminatory, focusing on the impact on those affected and does not include a consideration of the motives for, reasonableness of, or attitude behind the distinction (paras. 328-330, 335). There is no particular formula; it is a flexible and contextual inquiry that, depending on the case, may involve consideration of factors such as historical disadvantage, correspondence with actual characteristics, impact on other groups and the nature of the interest affected (paras. 418, 531).

47In this case, there is no question that the first version of the policy, permitting students to receive literature in the public schools from one creed, but not others, violated the norm of substantive equality. It promoted prejudice and stereotyping by suggesting that non-Christians, including atheists, are less worthy and valuable than others of having their creed included in the public school system. It perpetuated historical disadvantage of non-Christians, including atheists, in public institutions.

Historical Disadvantage

48The historical disadvantage of non-Christians is shown in reported decisions. For example, prior to litigation under the Charter, Canadian law prohibited sale of goods on Sunday for Christian religious purposes (Big M, above). Disadvantage of non-Christians was also present in the Ontario public school system, which included Christian prayer as part of opening or closing of the school day (Zylberberg v. Sudbury Board of Education (Director) (1988), 1988 CanLII 189 (ON CA), 65 OR (2d) 641) and Christian religious indoctrination in its curriculum (Canadian Civil Liberties Assn. v. Ontario (1990), 1990 CanLII 6881 (ON CA), 71 OR (2d) 341 (“CCLA”)).

Interest Affected

49The interest affected, the education of children, is particularly important and the impact on others is significant when one creed only is given priority and public recognition in a school setting. As set out in Ross v. New Brunswick School District No. 15, 1996 CanLII 237 (SCC), [1996] 1 SCR 825 at para. 42:

A school is a communication centre for a whole range of values and aspirations of a society. In large part, it defines the values that transcend society through the educational medium. The school is an arena for the exchange of ideas and must, therefore, be premised upon principles of tolerance and impartiality so that all persons within the school environment feel equally free to participate.

50I also take into account that the selective granting of permission to one creed to distribute religious materials was to grade five students. Children may be particularly vulnerable at such an age to the message sent when their school formalizes the delivery of religious views by one faith that does not include the creed with which they or their family identify. In Baker, above, the Supreme Court emphasized the importance of giving particular consideration to children’s interests, needs and rights (para. 73).

51Important interests of both R.C. and S.C. were affected. S.C. experienced discrimination with respect to educational services provided to her. R.C. also experienced discrimination with regard to a significant interest. As recognized by the Supreme Court of Canada, the interest in raising a child according to one’s own religious beliefs is constitutionally protected. See B.(R.) v. Children’s Aid Society of Metropolitan Toronto, 1995 CanLII 115 (SCC), [1995] 1 SCR 315. When a public school is not neutral with respect to creed, it discriminates with respect to services against both parents and children whose creed is marginalized.

Other Contextual Factors

52There is no basis on which to suggest that giving priority to Christians in distribution of religious materials in schools corresponds with their needs or promotes equality.

53For these reasons, I conclude that both R.C. and S.C. experienced discrimination with respect to services under the pre-2010 policy. The respondents have articulated no valid education-related purpose for restricting the distribution of religious literature to representatives of one creed, and the policy as it stood when S.C. was in grade five cannot be justified pursuant to s. 11 of the Code.

REMEDY

54Section 45.2 (1) of the Code reads as follows:

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

55The applicants seek no monetary compensation for the discrimination they experienced in 2009. They seek an order that the new policy be rescinded and no religious literature be permitted. I agree with the respondent that in the circumstances, there is no need to make an order about the old policy that has now been repealed. In order to decide whether to grant a remedy that the new policy be changed, I must consider whether it complies with the Code and is sufficient to promote compliance with the Code in the future in light of the 2009 discrimination. Put differently, if the Board’s own changes have remedied the discrimination, there is no need for the Tribunal to provide a remedy. If they have not, the Tribunal should order changes, under the third paragraph of s. 45.2 (1).

Does the Code prohibit Distribution of Religious Materials in Public Schools outside the School Day?

56The first issue is whether the Tribunal’s remedial order must prohibit the distribution of any religious materials in the public school system outside classroom time, even if the policy is neutral and ensures that there is no coercion or perception by a reasonable person that the Board favours one creed.

57The respondent emphasizes that a school does not provide only formal learning during the classroom day. There are numerous optional extra-curricular activities within a school building before and after school and during breaks in which students can participate, and the respondent argues they should be evaluated differently than what happens within the classroom. In the respondent’s view, the distribution of religious literature under the new policy facilitates parents’ and students’ access to materials they may wish to receive, and is a valid and important part of the school’s role in the community.

58The CCLA and the applicant suggest that as soon as schools go beyond neutral religious education and facilitate any religious message from a creed, there is discrimination. They suggest that religion should be in the schools only through the academic study of religions. They argue that the act of sending home and returning a permission slip identifies those students who do not attend a distribution and singles out those who do not share the creed whose materials are distributed. The distribution of the forms and the presence of the principal or vice-principal at the distribution, they say, subtly identifies the school with the religious message being sent by those distributing the text. The CCLA argues that because religious indoctrination by the school is prohibited under s. 2(a) of the Charter (see CCLA, above at para. 7) optional religious activities in the school are also prohibited. It equates the distribution and return of permission forms to the requirement to opt out of Christian religious exercises discussed in Zylberberg, above.

59In my view, optional religious activities outside the instructional day are permitted under the Code if all creeds are treated equally, there is no subtle or formal coercion to participate, and the school makes clear that it is not favouring any of them. Equal treatment without discrimination because of creed does not require that all activities relating to creed other than education about diverse religions be banished from the public schools. I agree with the respondent that, under a carefully developed policy that ensures equality between all creeds, it can permit distribution of religious and creed literature outside the school day with parental consent.

60To find that there can be no promotion of religious ideas or practices in public schools for those who want to participate in them would be to prohibit activities like optional religious clubs in high schools or the provision of prayer rooms. In my view, the Code ensures equality because of creed, but does not ban creed from all public spaces. Indeed, such a policy could be contrary to Code values of diversity and inclusion. Creed-based activities outside the classroom need not be eliminated, so long as participation is optional, no pressure is applied on students to participate, the school is neutral and it makes clear that it is facilitating such optional activities for all creeds, not promoting any particular creed.

61I do not agree with the CCLA that the distribution of permission forms and the return of those forms to participate in optional activities outside the school day is equivalent to requiring students to self-identify to receive an exemption from mandatory religious opening exercises during the school day, found to violate freedom of religion in Zylberberg, above. The Supreme Court has recognized that children can understand that others have different views on matters of religion and faith without being unduly influenced. See S.L., above at para. 40; Chamberlain v. Surrey School District No. 36, 2002 SCC 86 at paras. 65-66. Allowing students to opt into an activity outside the classroom, given the large number of such activities in which students may or may not participate, is not discriminatory if it is made clear that all creeds may engage in such activities in an equal manner in the school and the school is not endorsing any of them. This is fundamentally different from including formal worship during the school day and requiring students to opt out if they do not want to participate.

Does the Revised Policy Ensure Neutrality and Non-Discrimination?

62I find that that the new policy does not conform with the above principles. Neither the text of the new policy nor the manner in which it has been applied complies with the Code.

The Text of the Policy

63The new Policy G-22 is merely a grant of discretion to approve distribution of religious materials. Any such distribution must be approved by the Director of Education, then by the principal in consultation with the school council. There are no written guidelines about what will be approved, and nothing to ensure that creeds are treated equally across the Board’s schools in relation to requests to distribute materials. While I accept based on his testimony that Mr. Hoshizaki takes seriously the need to treat requests based on consistent criteria, there is no guidance to principals or school councils as to how to carry out their functions. This poses the serious risk that requests to distribute materials from different creeds will be treated differently. The lack of consistency, even before the new policy, is demonstrated by the fact that different principals at S.C.’s school took different approaches to whether the Gideon Bible would be distributed.

64The lack of clarity in the policy has placed the Board in the position of deciding on a case-by-case basis which pieces of literature may be distributed, and the criteria for doing so have been inconsistent. Although the Board’s letter to Mr. C. when he asked to distribute “Just Pretend” suggested that only materials in the MIM could be distributed, Mr. Hoshizaki’s testimony made clear that in light of the fact that some creeds are not included in the MIM, he may need to have staff research the issue if a request is made. He also acknowledged that staff may have to do research to determine whether some of the diverse books listed in the MIM can be distributed. The Board cannot be in a position of making such choices in individual cases without being seen to judge the validity of particular religions and religious texts and lose its neutral stance.

65Second, I agree with the applicant that merely changing the policy to permit the distribution of materials of other creeds was not sufficient, in particular in light of the previous discriminatory practice. The most important equality rights at issue in this case are those of the students and their parents to equal treatment in education, not those of persons who wish to distribute materials in the schools. From the perspective of grade five children, the effect of having only the Gideon Bible distributed in their school under the new policy is similar that under the old policy. To ensure compliance with the Code under an amended policy, the Board had the responsibility to make at least some efforts to encourage a diversity of literature and awareness of the policy under which the materials could be distributed.

66Third, the policy failed to ensure that a clear statement was included in the communication with parents about any distribution confirming that all creeds are permitted to distribute materials to students with parental consent. This would have avoided any impression that the Board was favouring a particular creed by allowing the distribution.

The Application of the Policy post-2010

67I also find that the manner in which the discretion was exercised was discriminatory. The respondent in its letter to R.C. relied upon the MIM. As Mr. Hoshizaki acknowledged, the MIM does not include information about every creed, including some recognized in this Tribunal’s jurisprudence, and the information about each religion is prepared by that religion. It is intended to assist in pastoral care and multifaith understanding, not in judging texts according to a consistent standard. In particular, it left out any material about the applicant’s creed.

68There was also discrimination in the attempted restriction of the policy to “recognized sacred texts of which there is global association and recognition” and not secondary materials. The MIM itself makes clear that not every creed is text-based or has “sacred texts”; for example it states that Native Spiritual Beliefs “have no written scriptures but ceremonies and beliefs are learned by word of mouth and actual experience”. As the applicant testified, atheists have no such “sacred text” so providing materials that reflect the creed of atheism means distributing publications like “Just Pretend”. The policy was discriminatory because its definition of acceptable materials violated substantive equality by excluding the kinds of materials central to many creeds. The restriction to sacred or foundational texts excludes some creeds and is therefore discriminatory. The requirement that there be “global recognition” may also have the effect of excluding emerging or non-traditional creeds.

69Moreover, the standard was not consistently applied. The Gideon Bible includes what appears to be “secondary material” in addition to biblical text. A standard that was relied upon to reject “Just Pretend” was not applied to the Gideon Bible.

70The Board made no efforts to publicize the policy or to ensure that other creeds were aware that they could provide materials. Indeed, when it received the request by the Council of Imams to distribute materials on Islam, the Board’s response was inconsistent with a policy of substantive equality between creeds. The Council of Imams asked, during the school year, to send religious material to be distributed in the schools. The Board responded two months later, in the summer, with a link to the policy, which is itself vague, and no information as to how to actually provide the materials as requested. Whether intentional or not, a reasonable reading of the e-mail would lead a reader to believe that the Board was not interested in encouraging or even facilitating the distribution of materials other than the Gideon Bible and the Board did not take the opportunity to ensure that there was more than one creed’s materials distributed in the schools.

Justification

71The Board suggests that if the new policy is discriminatory, it is justified under s. 11 of the Code as a reasonable and bona fide requirement in order to promote the objective of giving students and their families access to seminal texts from religions. The Board argues that it would undermine its objective if the Board had to distribute materials that were not seminal texts such as “Just Pretend”. The Board argues that the new policy therefore complies with the Code and remedies the 2009 discrimination, and that the Tribunal should therefore not order that it be changed.

72I need not engage in an extensive analysis of whether the respondent has met each aspect of the test for justification under British Columbia (Public Service Employee Relations Commission) v. BCGSEU¸ 1999 CanLII 652 (SCC), [1999] 3 S.C.R. 3 (“Meiorin”). The third step of that test requires that the requirement be reasonably necessary to accomplish its purpose or goal, and that the respondent could not accommodate the differences without experiencing undue hardship. Assuming that the other steps in the test are met, there is no evidence or reason why the respondent’s objective of giving students access to texts of creeds would be undermined by permitting optional attendance, with parental permission, at a distribution of atheist literature or materials that discuss traditional native spirituality. The desire to restrict the policy to the manner in which some creeds convey their core beliefs (seminal or authoritative texts) cannot justify an exclusion of creeds that convey their core message in other ways.

73I understand that some parents and students may not agree with some of the content of atheist literature like “Just Pretend”. However, the applicant and others do not agree with some of the content of the Gideon Bible. If the Board decides to have a policy permitting distribution of religious literature, it must be prepared to accept that some parents and students might object to materials that others, with parental permission, are receiving. If it is prepared to distribute permission forms proposing the distribution of Christian texts to committed atheists, it must also be prepared to distribute permission forms proposing the distribution of atheist texts to religious Christians. It cannot design its criteria in a way that would permit communication of materials setting out their beliefs by some, but not all creeds.

The Role of the Board

74For these reasons, I find that the Board’s 2010 policy is also contrary to the Code, and will order a remedy to promote compliance with the Code. The decision about whether and how to redesign the policy should be that of the Board, the elected body that decides upon educational policy in Niagara. It is the Board’s choice whether to end the practice of distributing religious literature or to design a new policy that complies with this Decision and to decide upon the details of the policy.

75In view of the discrimination found in this Decision, policy G-22 will be declared invalid. The Tribunal’s Order will provide that no distribution of religious materials shall take place in the Board’s schools unless the Board designs a new policy consistent with the Code principles set out in this Decision. In order to ensure that any new policy complies with the Code, the Order will provide the Board with six months to develop any new policy and provide it to the applicants and intervenors. I will remain seized for one year to deal with any disputes about whether any new policy complies with the Code. This will facilitate and promote the primary place of local democratically elected representatives while ensuring that a remedy at the Tribunal is available in an expeditious manner if any party believes there continues to be discrimination.

76I want to conclude by thanking all counsel and R.C., who was self-represented, for their helpful and thoughtful arguments and the collegial and highly respectful approach they all took to the argument of the case.

ORDER

77The Tribunal orders as follows:

1. Both Applications are allowed.

2. Board policy G-22 as it now reads cannot be relied upon by the Board.

3. Unless it develops a new policy consistent with the Code principles set out in this Decision, the Board shall not permit the distribution of religious publications in its schools.

4. If the Board intends to develop a new policy permitting distribution of creed and religious publications in its schools, it shall finalize the policy within six months, and provide a copy of the new policy to the applicants and intervenors.

5. If any party to this case believes that the new policy or practices under it are inconsistent with the Code, it may write to the Registrar no later than one year from the date of this Decision and request that I decide the issue.

6. I shall remain seized of these Applications for the purpose of dealing with disputes about any new Board policy raised with the Registrar within one year of today’s date.