Woman's court battle to ban Indigenous rituals denied
Court of Appeal upholds ruling against her
A B.C. woman's seven-year odyssey to get Indigenous rituals banished from classrooms has been slapped down yet again.
This week, the British Columbia Court of Appeal upheld a lower-court ruling finding that a B.C. school did not “impose” Indigenous spirituality on its student body by showcasing Indigenous spiritual practices. The appeals court took it a step further by requiring the litigant to pay the school district's legal costs.
If the case is appealed, the next stop is the Supreme Court of Canada.
Port Alberni's Candice Servatius first decided to take her local school district to court after a 2015 school event in which her two children were shown a traditional Indigenous ritual by an elder from the Nuu-chahnulth First Nation.
The elder demonstrated “smudging,” the ritual burning of sage in order to “cleanse” a space. A few months later, the school also hosted a performer exhibiting
an Indigenous hoop dance, whose performance included the uttering of a prayer.
The basic thrust of Servatius's lawsuit was that her children had been “compelled” to participate in a religious ceremony, and that the event was therefore no different from a priest, pastor or imam coming in to proselytize to the student body.
The case was a constitutional challenge; the district was accused of violating Servatius' charter-guaranteed right to “freedom of conscience and religion.”
The district was also accused of violating the B.C. School Act, which requires classes to follow “strictly secular and non-sectarian
principles.” This is obviously quite different from provinces such as Alberta or Ontario, where explicitly Catholic schools are a component of the public system.
Servatius's case was taken up in 2016 by the Justice Centre for Constitutional Freedoms, a civil liberties non-profit most famous in recent months for providing legal representation to the organizers of Freedom Convoy.
“The fact that a religious ritual like smudging might also be `cultural' is irrelevant to whether religious freedom has been violated, according to the Supreme Court of Canada,” wrote the Centre in a June statement.
The Centre cited a case out of Quebec in which an
atheist appellant was successful in obtaining a court order against Saguenay, Que., for opening its council meetings with a non-denominational prayer that included the line “in the name of the Father, the Son and the Holy Spirit.”
Given Quebec's deep Catholic roots, the ritual was defended on the grounds that it was merely a cultural practice which does not seek to impose religion. But a 2015 decision by the Supreme Court disagreed, with the result that pre-meeting prayers were soon abolished at city councils across the country.
In the B.C. case, Servatius's claim was rejected on the grounds that the school hadn't shown “favouritism”
toward Indigenous spirituality as a religion.
In the case of the hoop dancer's prayer, “nothing suggests that the dancer was trying to promote one set of religious beliefs over another.”
The decision also noted that cultures don't always draw a “bright line” distinction between religion and tradition. “If we know anything about traditions around the world, there is no bright line between culture and religion but, rather, there is a spectrum along which some practices are purely cultural, some are purely religious, and many have an amalgamation of both,” it read.
The court also noted that the hoop dancer (who actually wasn't Indigenous) and the Nuu-chah-nulth elder probably had vastly different belief systems themselves; hoop dancing is typically practised among Indigenous peoples several time zones away in the Great Lakes region. “Expecting all Indigenous people or admirers of Indigenous cultures to believe in the same thing is comparable to assuming that all theists belong to the same belief system,” it wrote.
The school attended by Servatius's children is not too far from Alberni Indian Residential School, a particularly notorious institution in which forced religious assimilation of First Nations children was not only explicit, but the school's founding mission.
It was in this context that B.C. attorney general David Eby — now B.C. premier — earlier submitted evidence to the court detailing why exposure to “Indigenous world views and knowledge” had been written into B.C. school curriculum in the first place.
The Nuu-chah-nulth, who acted as an intervener in the case but did not seek costs, similarly said their whole intention of sending elders into schools was to create “a culturally safe space” for Nuu-chah-nulth members who typically associated government schools with “abuse and trauma.”