Native smudging on schoolchildren a Charter breach

In September 2015, Port Alberni mother Candice Servatius was shocked to learn that her two elementary-aged children had been coerced to participate in an aboriginal “smudging” ceremony.

The school explained in a letter to parents that “everything has a spirit and energy” and “bad energy” must be “cleansed” from the furniture, classroom and children by fanning smoke from sage over “the body and spirit” of each child. Agree or disagree with these beliefs as you wish, but there is no denying that these aboriginal teachings are as religious as any that might be found in the Bible or Qur’an.

John Howitt Elementary School in Port Alberni eventually apologized to Servatius for failing to notify her of this religious ritual ahead of time. But the school district insists it will continue with these religious ceremonies in the classroom. Several months after the September “smudging,” the school held an assembly at which an aboriginal prayer was said.

The district claims that these are “cultural practices.” This is true, but misses the point. There is a world of difference between teaching children about Islam and requiring children to kneel on prayer rugs in the direction of Mecca and pray to Allah. Students can benefit from learning about aboriginal religious beliefs without being coerced to participate in religious rituals and ceremonies.

In spite of the cultural benefits that might flow from having children say the Lord’s Prayer in schools, courts have interpreted the Canadian Charter of Rights and Freedoms as including a right to be “free from” religion. That means not coercing children or adults to participate in any religious prayer, ritual, ceremony or practice.

The fact that a religious ritual like smudging might also be “cultural” is irrelevant, according to the Supreme Court of Canada. In Mouvement laique quebecois v. City of Saguenay, the court ruled that “the state must neither encourage nor discourage any form of religious conviction whatsoever. If the state adheres to a form of religious expression ... it breaches its duty of neutrality.”

In Saguenay, an atheist adult won the right to be spared the indignity of being present while city councillors said a non-denominational prayer that was opened and concluded with the words “in the name of the Father, the Son and the Holy Spirit.” He was not required to participate in the prayer, unlike Servatius’ children, one of whom was told by her teacher that it would be “rude” to refuse the “cleansing” of her spirit.

The Saguenay ruling rejected a compromise policy to have the atheist leave the council chambers during the prayer because this exacerbates discrimination: “If he chose to exclude himself from the prayer either by refusing to participate in it or by leaving the chamber, he would be forced to reveal that he is a non-believer. … Such interference constitutes an infringement of the complainant’s freedom of conscience and religion.”

In similar fashion, the Ontario Court of Appeal ruled that the recitation of Christian prayer and the reading of scriptures from the Christian Bible impose Christian observances upon non-Christian pupils and religious observances on non-believers. Further, “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, an exemption penalizes pupils who use it by stigmatizing them as nonconformists and setting them apart from their fellow students. The court ruled that it is an “insensitive approach” to claim that the religious exercises may be “good” because this “fails to take into account the feelings of young children.”

The school district argues that children benefit from learning about aboriginal cultures, including aboriginal religions. Yes, and one can teach kids about aboriginal religious beliefs without hosting religious rituals and ceremonies in the classroom.

Calgary lawyer John Carpay is president of the Justice Centre for Constitutional Freedoms, which represents Candice Servatius in her court action against School District 70.