Justice Thompson of the BC Supreme Court has released reasons in a freedom of religion case brought by a Port Alberni mother who objected to Indigenous cultural programming in a public school. Candice Servatius, an Evangelical Christian, claimed that her and her children’s freedom of religion was infringed when a Nuu-chah-nulth smudge demonstration took place in her children’s elementary school classrooms and an Ojibway hoop dancer said a prayer during a school assembly.
The Nuu-chah-nulth Tribal Council (“NTC”) intervened in this decision and took the position that smudging is a cultural practice, not a religious one, and that the constitution requires that Indigenous perspectives be considered when defining rights connected to Indigenous practices.
Ms. Servatius argued that the smudge and prayer constituted “compelled participation in state-sponsored religious exercises”, an argument that the judge rejected as wrong in law and not supported by the facts.
In his reasons, Justice Thompson referred to the NTC’s evidence showing the need to increase student awareness and understanding of Nuu-chah-nulth culture, history, and language in a school district in which one-third of the students are Indigenous. He took judicial notice of the “traumatic history and legacy of residential schools, and the pressing need for reconciliation efforts.” Justice Thompson reviewed social fact evidence on the history of European contact and colonization in British Columbia and the devastating effects of assimilationist policies, particularly mandatory residential schooling, on Indigenous people. He noted that there was some irony in Ms. Servatius’ position that the cultural demonstrations at her children’s school amounted to “religious indoctrination”, given this historical context.
The judge found that understanding this history was vital to assessing the efforts of the NTC to have schools reflect Nuu-chah-nulth culture. The purpose of experiential cultural programming like the smudge and hoop dance was to allow Indigenous students to finally “see themselves and their culture reflected” and have school become a “culturally safe space” rather than a place of assimilation, abuse, and shame. In this way, the NTC’s cultural programming is aimed at improving educational outcomes for Indigenous students and encouraging all students to respect and understand each other.
Justice Thompson concluded that Ms. Servatius had not established any infringement of religious freedom. He found that the mere presence of the children during the smudge and prayer was not proof of any interference with their ability to act in accordance with their religious beliefs.
Justice Thompson found that the Elder’s smudging was confined to the classroom’s perimeter walls and door frames, and that she spoke only about her own beliefs and those of the Nuu-chah-nulth people. He concluded that neither the students nor their belongings were smudged, and that their participation was limited to learning: observing, listening, and taking in the smell of the burning sage. He rejected Ms. Servatius’ evidence that her daughter was coerced to participate in the smudge.
Justice Thompson applied the law on religious freedom as protected by section 2(a) of the Charter, and found that the state has a duty to operate schools on a secular basis that respects state neutrality. He found that Ms. Servatius had not established that the school district had professed, adopted, or favoured Indigenous beliefs to the exclusion of all others. The law requires a neutral public space free from coercion, pressure, and judgment in spiritual matters, but not the “homogenization” of the space. Because Justice Thompson concluded that the children had been observers rather than participants in the Indigenous programming, he found it unnecessary to make a finding about whether the smudge was a religious ceremony or a cultural one.
In his findings on the school assembly, Justice Thompson concluded that the brief prayer said by the hoop dancer, which Ms. Servatius described as “strange and foreign to my children”, did not involve student participation in a spiritual or religious practice. He based these findings on the fact that the students observed the prayer and were not asked to participate in it. The state’s duty of neutrality in the context of a teaching environment is to encourage learning about religious practices, not direct engagement in them. For instance, it is consistent with state neutrality to bring schoolchildren to a mosque and have them observe Muslims at prayer and learn about the significance of specific Koran verses for believers. But it would compromise state neutrality to issue the students prayer rugs and instruct them to take part in the prayers.
This case confirms that religious freedom is not compromised when children are taught about Indigenous beliefs and cultural practices, and this teaching does not amount to coercing children to participate in religious ceremonies. Justice Thompson found that this is the case even when teaching is done by an Elder at close range and in a way that engages a student’s sense of smell, sight, and sound, and even when it results in “cognitive dissonance” because it exposes children to beliefs and cultures that are different from their own.
This is an important decision for the NTC and for Indigenous nations across Canada, as it upholds their ability to provide students with much-needed Indigenous cultural programming. It confirms that exposure to such programming is not in conflict with the rights of non-Indigenous students who may hold different religious or cultural beliefs, and is instead a laudable attempt to work towards reconciliation.
The judge’s recognition of the Truth and Reconciliation Commission’s recommendations and his emphasis on reconciliation as a proper goal of public education are a vital part of the work that must be done to heal some of the damage caused by residential schools. It is significant that the judge found that exposing students to an Elder setting sage alight and a dancer saying a prayer were “admirable and admissible efforts to teach, in a memorable way, about Indigenous beliefs,” and that it was “surely proper, and advisable in light of the historical circumstances, that the School District organize such events.” These findings send a strong message that Indigenous cultural programming and exposure to Indigenous beliefs and worldviews are to be encouraged in a public school context.