Is school prayer protected by the Canadian Constitution? Conflicting interpretations raise the debate once again.

I am a bit late here, but there was an interesting story out of Alberta a few weeks back, which raises some tricky constitutional issues on which I’d like some feedback.  In brief, here’s the issue:

A parent in the agricultural community of Busby says she is “not surprised but disappointed” the local school board is directing the Lord’s Prayer be recited at a public school.(…)

Busby students have recited the Lord’s Prayer at the start of every school day for years. (…)

Children who do not want to be pray will be accommodated, by being permitted to leave the gym during the prayer or stay without reciting it.

Now, a number of Canadian courts have previously ruled that laws imposing religious prayers, exercises or practices in public schools are unconstitutional, even if persons are permitted to exempt themselves from those elements of class.  This was decided in Ontario soon after the Charter was enacted, in a case called Zylberberg v Sudbury Board of Education (1988) 65 OR (2d) 641 (CA).  There, the Court of Appeal expressly rejected the argument that there was no violation of freedom of religion because students had a right to claim exemption from Christian religious exercises, finding that this submission “does not reflect the reality of the situation faced by members of religious minorities… it imposes on religious minorities a compulsion to conform to the religious practices of the majority” (at 654-55).

The court also found that the imposition of religious practices in public schools violates freedom of conscience and religion “in a broader sense”, as the “requirement that pupils attend religious exercises, unless exempt, compels students and parents to make a religious statement”, adding that:

the right to be excused from class, or to be exempted from participating, does not overcome the infringement of the Charter freedom of conscience and religion by the mandated religious exercises. On the contrary, the exemption provision imposes 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. In our opinion, the conclusion is inescapable that the exemption provision fails to mitigate the infringement of freedom of conscience and religion by s. 28(1). [at 656]

Subsequently, the Ontario Court of Appeal struck down a provision permitting the schools to provide a “religious education” in Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 71 O.R. (2d) 341 (CA), relying on Zylberberg. Decisions in other provinces have followed Zylberberg on this point (see e.g. Manitoba Association for Rights and Liberties Inc. et al. v. Manitoba et al. (1992), 82 Man.R. (2d) 39 (Q.B.) and Russow v. B.C. (A.G.), 1989 CanLII 2688 (BC SC)), and the Supreme Court of Canada seems to have affirmed it (see S.L. v. Commission scolaire des Chênes, 2012 SCC 7  at paras 19-20).

In Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, for instance, the Court stated that « the state cannot by law directly compel religious belief or practice… if the purpose of a law is to interfere with religious practices, the law cannot be upheld », citing Zylberberg.  The Court added that “(t)o compel  religious  practice by force of law deprives the individual of the fundamental right to choose his or her mode of religious  experience, or lack thereof.  Such laws will fail at the first stage of Oakes and proportionality will not need to be considered.” (at para 92)

With the Supreme Court’s recent decision in Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, and its robust and relatively unqualified endorsement of the principal of religious neutrality owed by public actors (including school boards), the conclusion that a policy of requiring denominational religious prayers or exercises in public schools is inconsistent with the Charter would seem to be irresistible. (If that were not enough, a strong argument can be made that the imposition of denominational religious instruction, exercises or practices additionally violates section 15 by discriminating against individuals on the basis of religious belief or non-belief (see e.g. Saguenay (City), at paras 120-128)).

So, with respect to the Busby Lord’s Prayer, that would appear to be that.

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Except that is not that.  From the story:

“We have great local community schools and each one is unique. You have to look at the traditions and values of those local communities,” said Tuininga.

She also stressed the decision is in accordance with provincial legislation, which dates back more than a century and allows school boards to direct public schools to say the Christian prayer.

The legislation is unique to Alberta and Saskatchewan.

Of course, the fact that such a practice is permitted by legislation is no answer to the challenge that the statute itself is unconstitutional.  So I don’t think, say, section 50 of the School Act, RSA 2000, c S-3, is any answer standing alone.  However, the wrinkle is that the ‘statute’ referred to is actually constitutional in nature: The Alberta Act, 4-5 Edward VII, c. 3 (Canada).

The Alberta Act is listed in the Appendix of the Constitution, and section 52(2)(b) seems to suggest that the Alberta Act is just as much a part of the Constitution as the rest of the Constitution. Section 17 of the Alberta Act provides as follows:

17.  Section 93 of the Constitution Act, 1867 shall apply to the said province, with the substitution for paragraph (1) of the said section 93, of the following paragraph:

« (1) Nothing in any such law shall prejudicially affect any right or privilege with respect to separate schools which any class of persons have at the date of the passing of this Act, under the terms of chapters 29 and 30 of the Ordinances of the North-west Territories, passed in the year 1901, or with respect to religious instruction in any public or separate school as provided for in the said ordinances. »

Section 17 appears to incorporate the The School Ordinance, 1901, c. 29 (NWT), which provides:

Religious instruction

137         No religious instruction except as hereinafter provided shall be permitted in the school of any district from the opening of such school until one half hour previous to its closing in the afternoon after which time any such instruction permitted or desired by the board may be given.

(2) It shall however be permissible for the board of any district to direct that the school be opened by the recitation of the Lord’s prayer.

Attendance not compulsory during religious exercise

138         Any child shall have the privilege of leaving the school room at the time at which religious instruction is commenced as provided for in the next preceding section or on remaining without taking part in any religious instruction that may be given if the parents or guardians do desire.

This appears to expressly permit the Lord’s prayer in Alberta public schools, as well as religious instruction for a limited period.

Finally, there is a solid line of Supreme Court cases standing for the proposition that you cannot use one aspect of the constitution (in particular the Charter) to annul another (specifically other non-Charter provisions).  I will not get into the details, but some of the decisions are here:  Harvey v. New Brunswick (Attorney General), [1996] 2 S.C.R. 876 at paras 60-75, McLachlin J., concurring; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 at 373 and 390; Canada (House of Commons) v. Vaid, 2005 SCC 30 at paras 29-32.

Most relevant for our purposes is Reference re Bill 30, An Act to Amend the Education Act (Ont.), [1987] 1 SCR 1148, where the Court found that the Charter cannot be used to abrogate constitutional provisions for denominational schools generally – i.e. section 93 – which section 17 of the Alberta Act incorporates and modifies.  Such provisions, the Court found, are “immune” from Charter review, and that this principle extends to legislation enacted pursuant to such powers:

62. (…)  It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the Constitution, particularly a provision such as s. 93 which represented a fundamental part of the Confederation compromise. (…)

63. To put it another way, s. 29 is there to render immune from Charter review rights or privileges which would otherwise, i.e., but for s. 29 be subject to such review. The question then becomes: does s. 29 protect rights or privileges conferred by legislation passed under the province’s plenary power in relation to education under the opening words of s. 93? In my view, it does although again I do not believe it is required for this purpose. The Confederation compromise in relation to education is found in the whole of s. 93, not in its individual parts. The section 93(3) rights and privileges are not guaranteed in the sense that the s. 93(1) rights and privileges are guaranteed, i.e., in the sense that the legislature which gave them cannot later pass laws which prejudically affect them. But they are insulated from Charter attack as legislation enacted pursuant to the plenary power in relation to education granted to the provincial legislatures as part of the Confederation compromise. Their protection from Charter review lies not in the guaranteed nature of the rights and privileges conferred by the legislation but in the guaranteed nature of the province’s plenary power to enact that legislation. (…) This was the agreement at Confederation and, in my view, it was not displaced by the enactment of the Constitution Act, 1982. As the majority of the Court of Appeal concluded at pp. 575 76:

These educational rights, granted specifically to the Protestants in Quebec and the Roman Catholics in Ontario, make it impossible to treat all Canadians equally. The country was founded upon the recognition of special or unequal educational rights for specific religious groups in Ontario and Quebec. The incorporation of the Charter into the Constitution Act, 1982, does not change the original Confederation bargain. A specific constitutional amendment would be required to accomplish that.

64. I would conclude, therefore, that even if Bill 30 is supportable only under the province’s plenary power and s. 93(3) it is insulated from Charter review.

See also Adler v. Ontario, [1996] 3 SCR 609, at paras 30-50, which confirms that section 93 is immune from attacks founded in the Charter, in that case section 15.

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Although the Court has since attempted to recast this principle in more palatable terms – i.e.  “(o)ne part of the Constitution cannot abrogate another part of the Constitution” (Vaid, at para 30) – what they seem to be saying in these cases is that the Charter specifically cannot abrogate other parts of the constitution.  This conclusion is not self-evident.

The notion that the courts should not go about simply preferring one constitutional provision over another is perfectly understandable, but it is not immediately obvious why the Charter should give way to other parts of the constitution any more than the reverse. In other contexts, a more dynamic approach is preferred.  For instance, in the context of competing Charter rights, the Court purports to ‘read them together’, resolving any conflict through modifying the scope of the rights or freedoms themselves in a process of « internal balancing and delineation » (Reference re Same-Sex Marriage, 2004 SCC 79 at para 50-54).  In federalism cases, the courts adopt the similar principle of « mutual modification » (Ward v. Canada (Attorney General), 2002 SCC 17 at para 30).  On this point, see also McLachlin CJ’s comments in Harvey, at paras 68-71.

I am not sure the Court has clearly articulated its thinking in the Charter vs. Constitution cases, but I think there is a logic.  It seems to be based on some variation of the complicated-sounding but ultimately intuitive “Generalia specialibus non derogant” or “Lex specialis derogat legi generali’ principles of statutory interpretation – that the specific trumps the general.

To illustrate: if your spouse invites you to « have a great day, and don’t forget to take out the garbage », I can assure you they are not intending for you to independently weigh the impact of taking out the garbage on your having a great day, and possibly decide against it.  They want you to take out the garbage specifically, but to otherwise have a great day. My reading of the Court’s logic is roughly that; the framers could not have intended the general and abstract rights and principles in the Charter to operate in such a manner to render inoperative particular and specific licenses, privileges, or rights expressly provided elsewhere.

Moreover, immunizing specific constitutional provisions from Charter attack would arguably do less violence to the integrity of the constitutional documents as a whole.  Whereas applying the Charter in this circumstance would have the effect of nullifying entirely the license granted by section 17, permitting section 17 to operate would simply amount to a little carve out from (the Court’s interpretation) of the scope of sections 2(a) and 15. This is my best guess as to the Court’s logic in the above cases, and how it might be applied to the Busby circumstance, although I am open to other suggestions.

Finally, it is not obvious to me that this conflict can be resolved through some form of reconciliation or ‘mutual modification’. We are not talking about two broad, abstract principles here.  You can either have the school prayer, which the Alberta Act appears to permit, or you can not have it, which the Charter seems to require.

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In summary: my read is that courts are unanimous that the imposition of sectarian school prayers in public schools is contrary to the Charter. However, it seems that another constitutional document permits this very thing to occur. Supreme Court doctrine seems to break the deadlock in favour of the non-Charter instrument. The irresistible force of the Charter gives way to the immovable rock of the non-Charter constitution.

So, my questions: Am I reading the above wrong or missing something? Can this logic be gotten around?  Is the Alberta Act, although purportedly as much a part of “the supreme law of Canada” as the Charter, not actually equal, in the same sense as the ‘fundamental compromise’ embedded in section 93?  Or is this just an open and shut case, whereby the religious freedom and equality rights of public school attendees in Alberta are less rigorously protected by the constitution as a whole than those of students in other provinces?

I’ll be taking stock on twitter (@BenOliphant) so if any scholars, lawyers or interested persons have any ideas on how this issue might be resolved, or the logic above avoided, please let me know.  Follow up blog posts – I’m looking at you, Sirota, Daly and Macfarlane – would be most welcome, criticizing the logic above, or providing a different reading of the cases and principles.