Constitutional lawyer Iain Benson, seen here speaking in Toronto last November, said parents shouldn’t be alarmed about a perception of growing anti-religious intolerance. Photo by Michael Swan

‘Surprising’ ERC decision in Quebec should not alarm parents - Benson

  • March 14, 2012

OTTAWA - Despite a “surprising” Supreme Court decision that won’t allow parents to exempt their children from Quebec’s mandatory Ethics and Religious Culture program (ERC), constitutional lawyer Iain Benson urges religious groups not to overreact to signs that parental rights are under threat.

On Feb. 17, Canada’s highest court ruled the ERC program doesn’t violate the religious freedom of Catholic parents because the parents — known as L and J in the decision — were unable to prove the course harms their children.

“The Drummondville test is unworkable in the long run,” Benson said. “(The justices) create a hurdle for parents who have an objection that’s too high to meet and too tightly narrows the scope for religious objections in relation to education.

“A parent should not have to prove they have difficulty in transmitting their faith before removing their child from the course. You are trying to prove a damage you don’t even want to consider.”

He said the decision is similar to saying that one must show a machine has cut your hand off before authorities will accept proof of its danger.

Benson represented two national coalitions, the Canadian Catholic School Trustees’ Association and the Canadian Council of Christian Charities, that intervened in the Drummondville decision along with a number of other Christian and civil liberties groups.

He found the Drummondville decision “surprising” because it seemed to go in the opposite direction of two other major Supreme Court decisions originating in Quebec: the Multani decision concerning the right of Sikhs to wear a kirpan or ceremonial dagger to school, and the Amselem decision recognizing the right of Jewish condo dwellers to build sukkahs or tent-like booths on their balconies in celebration of a religious holiday.

While those decisions went in a direction of greater accommodation to religions and didn’t seek proof of damage to religious practice beyond the say so of the claimants, the Drummondville decision “starts to turn to giving greater deference to provincial authorities,” Benson said.

Most of the interesting religious freedom cases are coming out of Quebec because “Quebec is seeming to want to model itself on the aggressive secularism” of France, Benson said, noting the French government has even forbidden Muslim women from wearing the veil in their own neighbourhoods and has used the wearing of a face covering as a reason to deny an application for French citizenship.

“That’s a very unCanadian way to approach religious accommodation,” he said.

“Quebec replaced what many consider an overly dominant sort of religion with an overly dominant atheistic or agnostic culture. Quebec has to learn the language of balance; it’s just going from one extreme to the next.”

The danger is a kind of “convergence pluralism” or one-size-fits-all approach that masquerades as diversity and uses the language of pluralism and equality to “create a society that squeezes those who disagree with them out,” he said.

“To construct the public as non-religious is a very big mistake,” he said. “Religious projects are part of the public and should have access to public funding. The anomaly is to have just non-religious education receive public funding.”

In the Drummondville case, Benson noted the Supreme Court justices did not deal directly with the issue of parental rights, even though parties to the case brought it up.

“Earlier decisions had held that parents delegate their prior right to educate to provincial authorities. That principle is not mentioned in the Drummondville decision.”

The ERC program is intended to promote tolerance and respect among different groups, but Benson noted he had argued before the court that a decision that did not respect the rights of parents to exempt their children could well have the opposite effect “of driving such objecting parents out of public education altogether — and that undercuts the rationale for the program in the first place.”

Should the province refuse to allow difference of opinions and belief in religious day cares, schools and home education Benson predicts that some parents will leave the schools or even the province. He noted that “history shows that people have a tendency to leave areas that they deem to have become religiously intolerant.”

Provinces and states that do so will lose their religious adherents, he said.

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