Re Bal et al. and Attorney General for Ontario et al. *

[Indexed as: Bal v. Ontario (Attorney General)]

21 O.R. (3d) 681 [1994] O.J. No. 2814

Action No. RE 722/92

Ontario Court (General Division), Winkler J.

December 5, 1994

   * Note:  An appeal from the following judgment of Winkler J. to the Ontario Court of Appeal (McKinlay, Osborne and Austin JJ.A.) was dismissed on June 26, 1997.  See 34 O.R. (3d) 484 in this database.

   Charter of Rights and Freedoms — Freedom of expression — Secularization of public schools — Policy Memorandum 112 of Ministry of Education and ss. 28 and 29 of Reg. 298 under Education Act provide that teaching about religion in public schools must be non-indoctrinational and must not give primacy to any particular religious faith — No infringement of expressive freedom — Canadian Charter of Rights and Freedoms, s. 2(b) — Education Act, R.S.O. 1990, c. E.2 — R.R.O. 1990, Reg. 298, ss. 28, 29.

   Charter of Rights and Freedoms — Freedom of religion — Secularization of public schools — Policy Memorandum 112 of Ministry of Education and ss. 28 and 29 of Reg. 298 under Education Act provide that teaching about religion in public schools must be non-indoctrinational and must not give primacy to any particular religious faith — Failure to establish and fund religious minority schools within public school system does not infringe freedom of religion — Canadian Charter of Rights and Freedoms, s. 2(a) — Education Act, R.S.O. 1990, c. E.2 — R.R.O. 1990, Reg. 298, ss. 28, 29.

   Charter of Rights and Freedoms — Equality rights — Policy Memorandum 112 of Ministry of Education and ss. 28 and 29 of Reg. 298 under Education Act state that teaching about religion in public schools must be non-indoctrinational and must not give primacy to any particular religious faith — Policy memorandum and regulation does not infringe s. 15 of Charter — Canadian Charter of Rights and Freedoms, s. 15 — Education Act, R.S.O. 1990, c. E.2 — R.R.O. 1990, Reg. 298, ss. 28, 29.

   In December 1990, the Ontario Ministry of Education issued Policy Memorandum 112 on the subject of "Education about Religion in the Public Elementary and Secondary Schools", directed to boards of education throughout the province and stating that teaching about religion must henceforth be non-indoctrinational and must not give primacy to any particular religious faith. That policy was reflected in ss. 28 and 29 of Reg. 298 under the Education Act. The applicants were a group of parents representing a

number of minority faith communities in Ontario, including the Sikh, Hindu, Muslim, Mennonite and Christian Reform communities. They applied to have the memorandum and the corresponding regulations struck on the grounds that they infringe ss. 2(a), (b) and 15 of the Canadian Charter of Rights and Freedoms.

   Held, the application should be dismissed.

   The issue is whether the Charter gives applicants the right to require the Minister of Education to provide and fund denominational religious schools for minority religious groups within the public school system. The decisions of the Ontario Court of Appeal in Zylberberg v. Sudbury Board of Education (Director), Canadian Civil Liberties Assn. v. Ontario (Minister of Education) and Adler v. Ontario determine that issue against the applicants.

   The impugned policy memorandum and regulations do not infringe freedom of religion contrary to s. 2(a) of the Charter. To found a breach of s. 2(a), there must be some state coercion that denies or limits the exercise of one's religion. Secularism is not coercive, it is neutral. Policy Memorandum 112 does not constitute a form of government action which prefers one religion over another, nor does it represent majoritarian religious views. The policy seeks to abolish distinctions in the public school system which are based on religion. The central thrust of the applicants' position was to bring the religious minority alternative schools under the aegis of the public school board to obtain financial support from that system. The decision of the Court of Appeal in Adler that there is no obligation on the government to fund minority religious schools is directly on point and determinative of the issue.

   The policy memorandum and ss. 28 and 29 of the regulation do not infringe freedom of expression contrary to s. 2(b) of the Charter. Their purpose is to secularize the public school system, not to restrict protected expression. Their effect is to promote secularism in the public schools, not to restrict expressive activities. In reality, no restrictions were placed on the expressive freedom of these applicants. A student is not prevented from speaking his or her beliefs. Indoctrination is limited, but not expression. Though teachers were not parties to the application, there is nothing to preclude a teacher from expressing his or her beliefs outside the school curriculum. The only limitation is that teachers and the school are not to indoctrinate or give primacy to any religion.

   The policy memorandum and the regulation do not infringe s. 15 of the Charter. It is not the policy memorandum and the regulation which impose obligations, penalties, or restrictive conditions on the applicants and not on others. Rather, it is the applicants' choice of education for their children. The public school system is secular and does not present the opportunity for education in any particular denomination or faith. Should parents desire that their children have a religious education they must assume the cost.

   Adler v. Ontario (1994), 19 O.R. (3d) 1, 22 C.R.R. (2d) 205, 116 D.L.R. (4th) 1 (C.A.); Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 71 O.R. (3d) 341, 46 C.R.R. 316, 65 D.L.R. (4th) 1, 37 O.A.C. 93 (C.A.); Zylberberg v. Sudbury

Board of Education (Director) (1988), 65 O.R. (2d) 641, 34 C.R.R. 1, 52 D.L.R. (4th) 577, 29 O.A.C. 23 (C.A.), folld

   R. v. Keegstra, [1990] 3 S.C.R. 697, 3 C.R.R. (2d) 193, 61 C.C.C. (3d) 1, 1 C.R. (4th) 129, 77 Alta. L.R. (2d) 193, [1991] 2 W.W.R. 1, 117 N.R. 1, consd

Other cases referred to

   Board of Education for the Borough of North York and Ministry of Education (Re) (1978), 19 O.R. (2d) 547, 6 M.P.L.R. 249 sub nom. Toronto Hebrew Schools v. North York Board of Education (H.C.J.), affd Ont. C.A., April 9, 1979; Brusca v. Missouri, 332 F. Supp. 275 (1971), affd 405 U.S. 1050, 92 S. Ct. 1493; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, 4 C.R.R. (2d) 60, 77 D.L.R. (34th) 385, 120 N.R. 241, 40 F.T.R. 240n; Edwards Books & Art Ltd. v. R., [1986] 2 S.C.R. 713, 28 C.R.R. 1, 30 C.C.C. (3d) 385, 55 C.R. (3d) 193, 35 D.L.R. (4th) 1, 87 C.L.L.C. 14,001, 19 O.A.C. 239, 71 N.R. 161, 58 O.R. (2d) 442n; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, 36 C.R.R. 1, 54 D.L.R. (4th) 577, 19 Q.A.C. 69, 90 N.R. 84; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, 39 C.R.R. 193, 58 D.L.R. (4th) 577, 25 C.P.R. (3d) 417, 24 Q.A.C. 2, 94 N.R. 167; Norwood v. Harrison, 413 U.S. 455 (1973); Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, 23 D.L.R. (4th) 321, 9 C.C.E.L. 185, 17 Admin. L.R. 89, 86 C.L.L.C. 17,002, 64 N.R. 161, 52 O.R. (2d) 799n; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, 13 C.R.R. 64, 18 C.C.C. (3d) 385, 18 D.L.R. (4th) 321, 37 Alta. L.R. (2d) 97, [1985] 3 W.W.R. 481, 85 C.L.L.C. 14,023, 58 N.R. 81; R. v. Oakes, [1986] 1 S.C.R. 103, 19 C.R.R. 308, 24 C.C.C. (3d) 321, 50 C.R. (3d) 1, 26 D.L.R. (4th) 200, 14 O.A.C. 335, 65 N.R. 87, 53 O.R. (2d) 719n; Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084, 16 C.R.R. (2d) 240, 106 D.L.R. (4th) 233, 23 C.R. (4th) 391, 16 M.P.L.R. (2d) 1, 156 N.R. 2, 15 O.R. (3d) 548n; Reference re Act to Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148, 36 C.R.R. 305, 40 D.L.R. (4th) 18, 22 O.A.C. 321, 77 N.R. 241

Statutes referred to

Canada Act 1982 (U.K.), c. 11Canadian Charter of Rights and Freedoms, ss. 1, 2, 15, 23, 24(1)Constitution Act, 1867, s. 93Constitution Act, 1982, s. 52(1)Education Act, R.S.O. 1980, c. 129, s. 50Education Act, R.S.O. 1990, c. E.2, ss. 21, 51

Rules and regulations referred to

R.R.O. 1990, Reg. 298 (Education Act), ss. 28, 29

Authorities referred to

Religion in the Public Schools (American Association of School Administrators, 1986), p. 33Shapiro, Report of the Commission on Private Schools in Ontario (October 1985)

   APPLICATION attacking the constitutionality of Policy Memorandum 112 of the Ministry of Education and ss. 28 and 29 of R.R.O. 1990, Reg. 298 under the Education Act, R.S.O. 1990, c. E.2.

   Peter R. Jervis, for applicants.

   Robert Charney, for respondents.

   WINKLER J.: —

I. INTRODUCTION

   In a landmark decision released by the Ontario Court of Appeal in January 1990 the court struck down the curriculum for religious education of the Elgin County Board of Education. The curriculum was set pursuant to the regulations under the Education Act, R.S.O. 1980, c. 129, s. 50, which required two periods of religious education in public schools each week. A student could be exempted, upon request, pursuant to an exemption provision in the regulations. The curriculum and the regulations, which reflected majoritarian Christian faith, were found to violate s. 2(a) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11 ("Charter"), which guarantees freedom of conscience and religion, by imposing majoritarian religious beliefs on minorities.

   Almost a year and a half earlier, the court had struck down a related regulation requiring opening exercises in schools in a proceeding involving the Sudbury Board of Education. The opening exercises included the recitation of the Lord's Prayer, a Christian prayer, and a reading from the Scriptures in the Christian Bible. This regulation, also, was found to have infringed the Charter guarantee of freedom of conscience and religion.

   On December 6, 1990 the Ministry of Education responded to the decision of the court in Elgin County, infra, by issuing Policy Memorandum 112 on the subject of "Education about Religion in the Public Elementary and Secondary Schools". This was directed to boards of education throughout the province and stated the requirements to give effect to the Elgin County decision. The memorandum stated that teaching about religion must henceforth be non-indoctrinational and must not give primacy to any particular religious faith. It stated further that the regulations under the Act would be amended to reflect his policy.

   It is this policy directive and the revised regulations which the applicants seek to impugn in this proceeding.

   The Elgin County decision and the ensuing policy memorandum and regulations signify the end of an era of majoritarian Christian influence, and mark the beginning of a period of secularism in education, based on an awareness of a changing societal fabric and Charter protection for minority rights to freedom of religion. Notwithstanding this, the applicants assert that the policy memorandum and regulations, when applied to them, infringe the Charter.

   The applicants are a group of parents representing a number of minority faith communities in Ontario, including the Sikh, Hindu, Muslim, Mennonite and Christian Reform communities.

   Certain of the applicants are involved with existing alternative religious schools, which they describe as "opt-in" schools, within the public school system. One such school, a Christian day school, known as the Sturgeon Creek Alternative Program ("SCAP"), is part of the Fort Frances-Rainy River Board of Education. The second is called the Eden Christian School in Lincoln County ("Eden") which is exactly the same as SCAP. The application of Policy Memorandum 112 and the regulations to these existing alternative religious schools is that religious instruction and religious exercises at these schools is now prohibited during regular school hours.

   Also, the policy prohibits the establishment of other alternative religious schools within the public school system because such schools would have the specific objective of religious indoctrination through instruction and exercises.

   It is asserted by the applicants that the preclusion of the establishment, funding, or continuation of alternative religious schools as part of a public school board is discriminatory and denies to the applicants the freedom of conscience and religion and freedom of expression as members of minority faith communities and as such violates ss. 2(a), (b) and 15 of the Charter.

   The respondents counter by pointing out that, during the period of majoritarian Christian influence in the public school system in Ontario, accommodation for alternative religious minority schools within the public school system was permitted. As a result of the decisions of the Court of Appeal involving the Sudbury Board of Education and the Elgin County Board of Education, religious instruction and exercises were not permitted in the public school system. The upshot of all of this has been that the public school system in Ontario has been secularized. In another Court of Appeal decision which was released recently, Adler, infra, it was held that public funding of private religious schools should not be imposed on the government.

   The applicants seek to retain the right to minority religious school accommodation within the public school system and thus have access to public funding. They object to the application of the policy memorandum and the regulations by the Ministry of Education to minority religious schools on Charter grounds, even though the policy and regulations have been applied to eliminate majoritarian religious influence in the public

school system, also on Charter grounds. Herein, say the respondents, is the anomaly in the applicants' position.

   In my opinion, Policy Memorandum 112 and ss. 28 and 29 (R.R.O. 1990, Reg. 298) of the regulations under the Education Act do not infringe the applicants' rights under the Charter. My reasons follow.

II. BACKGROUND

   This matter arises in the context of judicial pronouncement and governmental response. At the outset, therefore, it is necessary to examine the decisions, Policy Memorandum 112 and the amended regulations. Policy Memorandum 112, which is at the vortex of this dispute, was distributed after the decision in Canadian Civil Liberties Assn. v. Ontario (Minister of Education) (1990), 71 O.R. (2d) 341, 46 C.R.R. 316 (C.A.) ("Elgin County"). This decision in turn came after the decision in Zylberberg v. Sudbury Board of Education (Director) (1988), 65 O.R. (2d) 641, 34 C.R.R. 1 (C.A.) ("Zylberberg"), the first in what I will refer to as the "trilogy" of minority religious education cases in Ontario. The last of these decisions, Adler v. Ontario, was released on July 6, 1994 by the Ontario Court of Appeal and is reported at 19 O.R. (3d) 1, 22 C.R.R. (2d) 205 ("Adler"). It is within this framework that the present application must be determined.

A. The Zylberberg Decision

   In Zylberberg, the appellants were parents of children enroled in the public elementary school system in Sudbury. These parents sought a declaration that s. 28(1) of the regulations to the Education Act was of no force and effect because it violated the guarantee of freedom of conscience and religion in s. 2(a) of the Charter. The target of the proceeding was the religious exercises which were required by the regulations to take place at the beginning or end of every school day. These exercises included recitation of a Christian prayer (the Lord's Prayer), and readings from the Scriptures or other readings and, in some cases, the singing of hymns. There was a provision for students to be exempt from the religious exercises, if requested. The schools of the Sudbury board opened with the National Anthem, Lord's Prayer, and, in some schools, reading from Scriptures.

   In arriving at its decision, the Court of Appeal applied the analytical framework set down by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103, 19 C.R.R. 308. That is, a court must first determine if the law, which is sought to be impugned, constitutes a prima facie infringement of the Charter. Then, if this is so, a court must determine if s. 1 of the Charter saves the legislation.

   At p. 652 of the Zylberberg decision, the court considered the views of Supreme Court of Canada concerning the freedom of conscience and religion, as stated in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, 18 D.L.R. (4th) 321 ("Big M Drug Mart"):

   Chief Justice Dickson (then Dickson J.), speaking for the court, eloquently described the meaning of the words "freedom of conscience and religion". In its most traditional sense, freedom of religion means the unimpeded freedom to hold, profess and manifest religious beliefs as he said at . . . p. 336 S.C.R.:

The essence of the concept of freedom of religion is the right to entertain such religious beliefs as a person chooses, the right to declare religious beliefs openly and without fear of hindrance or reprisal, and the right to manifest religious belief by worship and practice or by teaching and dissemination.

   He continued by saying that "the concept means more than that" and stated that the freedom can "be characterized by the absence of coercion or restraint". He went on to say at . . . p. 336 S.C.R.:

Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others. Freedom in a broad sense embraces both the absence of coercion and constraint, and the right to manifest beliefs and practices.

   Another aspect of the Charter freedom of conscience and religion, which is of particular significance in this case, is freedom from conformity. The practices of majoritarian religion cannot be imposed on religious minorities. The minorities should not be subject to the "tyranny of the majority", as Chief Justice Dickson said at . . . p. 337 S.C.R.:

What may appear good and true to a majoritarian religious group, or the State acting at their behest, may not, for religious reasons, be imposed upon citizens who take a contrary view. The Charter safeguards religious minorities from the threat of "the tyranny of the majority".

   The court also referred to passages in which the Supreme Court emphasized that s. 2(a) protects the freedom of non-believers as well as believers. The only limitation on one's freedom of conscience and religion was identified by the court at p. 653:

   The only limitation upon an individual's freedom of conscience or religion recognized by the Supreme Court of Canada is that its manifestation must

not injure others or interfere with their right to manifest their own beliefs and opinions. Dickson J. said at . . . p. 346 S.C.R.:

The values that underlie our political and philosophic traditions demand that every individual be free to hold and to manifest whatever beliefs and opinions his or her conscience dictates, provided, inter alia, only that such manifestations do not injure his or her neighbours or their parallel rights to hold and manifest beliefs and opinions of their own.

Finally, the court considered the Supreme Court's recognition of a changing society with differing views of the education system. As the community's beliefs become more varied, the place of the established Christian practices in the education system must be re-evaluated.

   It was conceded that s. 28(1) of the regulations was prima facie an infringement of s. 2(a) of the Charter. However, it was argued that the provision for exemption of a student in the regulations eliminated the suggestion of pressure or compulsion on non-Christians to participate in the exercises. In response to this argument the court said, at p. 654:

   From the majoritarian standpoint, the respondent's argument is understandable but, in our opinion, it does not reflect the reality of the situation faced by members of religious minorities. Whether or not there is pressure or compulsion must be assessed from their standpoint and, in particular, from the standpoint of pupils in the sensitive setting of a public school.

(Emphasis added)

In particular the court noted the following, at p. 655:

The peer pressure and the class-room norms to which children are acutely sensitive, in our opinion, are real and pervasive and operate to compel members of religious minorities to conform with majority religious practices.

   It was held that the right to be excused from class or to be exempt from participation does not overcome the infringement of s. 2(a) of the Charter. The court stated that the exemption provisions impose a penalty on pupils from religious minorities who rely on them by stigmatizing them as non-conformists and setting them apart from other students who are members of the dominant religion. The exemption provisions, it was concluded, fail to mitigate the infringement of freedom of conscience and religion by s. 28(1).

   The court held that it is difficult to justify an infringement of this nature but, nevertheless, applied the test from the R. v. Oakes decision to conduct a s. 1 analysis. Rather than examine each step of the test, the most vulnerable element of the case was considered. That is, whether the right is impaired "as little as possible". The court found that s. 28 of the regulations does not impair the right "as little as possible" and, therefore, s. 1 cannot be invoked to justify the infringement. Accordingly, s. 28(1) of the regulations was held to be of no force and effect. The opening religious exercises were struck down as infringing the Charter right to freedom of religion.

B. The Elgin County Decision

   Pursuant to a requirement of s. 28(4) of the regulations which required two periods of religious education each week, the Elgin County board provided religious instruction by members of a county bible association. The instruction was largely from a fundamentalist Christian perspective. Midway through the litigation, the board changed the policy so that classroom religious instruction was provided by classroom teachers. Over 90 per cent of the people residing in Elgin County were, at the time, of Christian background. The appellant parents objected to the religious instruction but chose not to exempt their children from this religious instruction because of a concern for stigmatization and, instead, proceeded through the courts.

   Thus the Court of Appeal, in Elgin County, was once again faced with s. 28 of the regulations to the Education Act. The court's reasons in Zylberberg had been released when the lower court decision in Elgin County was under appeal. The court considered the constitutionality of s. 28(4) of the regulations and then turned to an examination of the constitutionality of the curriculum offered in the schools.

   The court framed the issue before it at p. 344:

   The crucial issue in this appeal is whether the purpose and the effects of the regulation and the curriculum are to indoctrinate school children in Ontario in the Christian faith. If so, the rights to freedom of conscience and religion under s. 2(a) of the Canadian Charter of Rights and Freedoms and the equality rights guaranteed under s. 15 of the Charter may be infringed. On the other hand, it is conceded that education designed to teach about religion and to foster moral values without indoctrination in a particular relgious faith would not be a breach of the Charter. It is indoctrination in a particular religious faith that is alleged to be offensive.

(Emphasis in original)

The court summarized the decision in Zylberberg at p. 350:

   The majority of this court (Brooke, Blair, Goodman and Robins JJ.A.)

concluded that s. 28(1), on its face, infringed the freedom of conscience and religion guaranteed by s. 2(a) of the Charter. It imposed, in their opinion, Christian observances upon non-Christian pupils and religious observances on non-believers. They held that the regulation was not saved by the exemption provision. This provision imposed on religious minorities a compulsion to conform to the religious practices of the majority. It discriminated against religious minorities by imposing 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. The majority of the court held that harm to individual pupils did not need to be proved by those who objected to s. 28(1). Also, they found that the denigration of the freedoms of conscience and religion of minorities by the operation of s. 28(1) resulted in an infringement which was not insubstantial or trivial. Lastly, they held that the infringement created by s. 28(1) was not capable of justification under s. 1 of the Charter. Even if s. 1 were applicable, the regulation was not a reasonable limit which could be demonstrably justified under s. 1 of the Charter.

   The court referred to the decision of the Supreme Court of Canada in Big M Drug Mart to assist in determining whether s. 28 infringed s. 2(a) of the Charter. Emphasis was given to the words of Dickson J. (as he then was) and the direction contained therein to consider the purpose and effect of the legislation, since either an unconstitutional purpose or an unconstitutional effect can invalidate the legislation. Dickson J. explained at pp. 351-52 (D.L.R.):

[T]he legislation's purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test. . . . [T]he effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose.

   In determining the purpose of the legislation, the court considered its history. It was noted that, traditionally, there have been two aspects to the role of religion in Ontario's public schools: religious education and opening and closing religious exercises. There was little resistance to the inclusion of these aspects of religion in the school system because the population had been predominantly Christian. The use of religion in the education system was seen as a method of teaching morality or as a form of indoctrination. The court adopted the analysis of the evidence that the object of s. 28(4) was the indoctrination of schoolchildren in the Christian faith.

   Having identified this purpose, the court moved on to a determination of whether this indoctrination violates s. 2(a) of the Charter. At p. 363 the court observed:

   The short answer is that it must. State-authorized religious indoctrination amounts to the imposition of majoritarian religious beliefs on minorities. Although s. 2(a) of the Charter is not infringed merely because education may be consistent with the religious beliefs of the majority of Canadians (see Edwards Books, supra, p. 35), teaching students Christian doctrine as if it were the exclusive means through which to develop moral thinking and behaviour amounts to religious coercion in the class-room. It creates a direct burden on religious minorities and non-believers who do not adhere to majoritarian beliefs. That this amounts to violation of s. 2(a) of the Charter, especially when viewed in the light of s. 27 of the Charter, becomes clear from a review by this court in Zylberberg, supra (at pp. 652-3 O.R., pp. 588-9 D.L.R.), of those passages in Big M, supra, where Dickson J. dealt with the nature of the Charter freedom of conscience and religion.

   Given the conclusion with respect to the purpose of the legislation, there was no need for the court to consider the effect. However, in obiter, the court stated that had the finding regarding purpose been different, it nevertheless would have reached the same conclusion based on the effects of the regulation. It was held that the effect of the regulation was to provide for the use of curricula and materials which constituted the basis for religious indoctrination. This was held to be unconstitutional.

   The court considered the constitutionality of the curriculum separately. It was decided that the curriculum should be considered government action rather than law. The result of this finding is that the remedy falls to s. 24(1) of the Charter rather than s. 52(1) of the Constitution Act, 1982 which, the court stated, was in accord with the relief sought by the appellant, Corporation of the Canadian Civil Liberties Association. The relief sought was an order declaring the curriculum to be a denial of certain rights and freedoms under the Charter. The test to be applied is that s. 2(a) prohibits religious indoctrination but does not prohibit education about religion. This distinction is described in an eight-part statement originating from the Public Education Religion Center, Wright State University, and quoted in Religion in the Public Schools (American Association of School Administrators, 1986) at p. 33. This eight-part statement was subsequently adopted in Policy Memorandum 112 and is excerpted in full below.

   The court examined the curriculum and declared it to be inconsistent with s. 2(a) of the Charter.

   In addition to the s. 2(a) arguments, counsel argued that s. 15(1) of the Charter was infringed. The court declined to express an opinion on this point given its conclusion with respect to the s. 2(a) infringement. Further, it concluded that, as in Zylberberg, if the true purpose of the impugned regulation is to indoctrinate children in the Christian faith, the infringement of s. 2(a) cannot be justified under s. 1. In addition, the court found that, even if there is a beneficial objective ascribed to the regulation, the measures adopted are not rationally connected to that objective. That is, if teaching proper moral standards is the objective, the indoctrination of children in the Christian religion, is not rationally

connected to that objective. Also, these measures failed to impair the appellants' freedoms as little as possible.

   In the result, s. 28(4) of the regulations was held to be of no force and effect. The curriculum of religious studies prescribed by the Elgin County Board of Education was said to deny the freedom of conscience and religion and the board was enjoined from continuing to require or permit the curriculum to be offered in its schools.

C. Policy/Program Memorandum No. 112 and ss. 28 and 29 of R.R.O. 1990, Reg. 298

   Key to the application at bar is a memorandum issued by the Ministry of Education on December 6, 1990 which became effective on January 1, 1991 dealing with "Education about Religion in the Public Elementary and Secondary Schools" and designated as Policy/Program Memorandum No. 112. It is this memorandum and the corresponding regulations that the applicants seek to have struck on the grounds that they infringe ss. 2(a), (b) and 15 of the Charter.

   Policy Memorandum 112 and the new regulations were a response to the Ontario Court of Appeal's decision in Elgin County and constituted an effort, on the part of the government, to provide secular education in the public school system.

   I reproduce the memorandum in whole given its significance to the determination of the application:

[Ministry logo] Policy/ProgramMemorandumNo. 112

Date of Issue Subject: December 6, 1990  Effective:  January 1, 1991

EDUCATION ABOUT RELIGION IN THE PUBLIC ELEMENTARY AND SECONDARY SCHOOLS

Applications:Chairpersons of Boards of Education Directors of Education of Boards of Education, Principals of Public Elementary and Secondary Schools

I. Background

On January 30, 1990, the Ontario Court of Appeal unanimously struck down subsection 28(4) of Regulation 262 concerning religious education in the public elementary schools. The court ruled that the subsection infringed on the freedom of conscience and religion guaranteed by section 2(a) of the Canadian Charter of Rights and Freedoms. Neither the subsection nor the court decision applied to schools operated by the Roman Catholic separate

school boards.

Section 29 of Regulation 262, regarding provision of religious instruction by clergy or designates in the public secondary schools, was not before the court, and the court's ruling did not apply expressly to that section. However, subsequent advice by legal counsel indicates that the principles outlined in the decision make section 29 equally untenable.

In its decision, the court made it very clear that subsection 28(4) of the regulation was invalid because it permitted the teaching of a single religious tradition as if it were the exclusive means through which to develop moral thinking and behaviour. The court also ruled that education designed to teach about religion and to foster moral values without indoctrination in a particular religious faith would not contravene the charter [sic].

In distinguishing between religious indoctrination and education about religion, the court made the following statement:

While this is an easy test to state, the line between indoctrination and education, in some instances, can be difficult to draw. With this in mind, it may be of assistance to refer to the following more detailed statement of the distinction:

--The school may sponsor the study of religion, but may not sponsor the practice of religion.

--The school may expose students to all religious views, but may not impose any particular view.

-- The school's approach to religion is one ofinstruction, not one of indoctrination.

--The function of the school is to educate about all religions, not to convert to any one religion.

-- The school's approach is academic, not devotional.

--The school should study what all people believe, but should not teach a student what to believe.

--The school should strive for student awareness of all religions, but should not press for student acceptance of any one religion.

--The school should seek to inform the student about various beliefs, but should not seek to conform him or her to any one belief.

Subsequent to the court's ruling, an interim policy for public elementary schools, dated February 28, 1990, was established, whereby boards were permitted to provide programs in education about religion in the time previously used during the school day, as long as these programs were in accordance with the court's ruling. Boards of education were also advised that they could continue to provide space outside the school day, as they do for various community-related activities, if parents requested that their children be taught religion by clergy or designates. This interim policy for elementary schools was intended to remain in effect only until policy considerations related to the public elementary and secondary schools were finalized.

II. Permanent Policy

The Ministry of Education will amend sections 28 and 29 of Regulation 262 to reflect the following permanent policy, which will apply to public elementary and secondary schools:

1.Boards of education may provide programs in education about religion in Grades 1 to 8 during the school day for up to 60 minutes per week.

2.Boards of education may continue to provide optional credit courses in World Religions in secondary schools, as specified in the curriculum guideline entitled History and Contemporary Studies, Part C: Senior Division, Grades 11 and 12, 1987. The program described in the guideline meets the court's definition of permissible education about religion.

3.Schools and programs, including programs in education about religion, under the jurisdiction of boards of education must meet both of the following conditions:

a) They must not be indoctrinational.

b)They must not give primacy to any particular religious faith.

4.Boards of education may continue to provide space before the beginning or after the close of the instructional program of the school day for indoctrinational religious education. Given the provisions for equality of treatment in the Canadian Charter of Rights and Freedoms, boards choosing this option must make space available on an equitable basis to all religious groups.

   This policy will come into effect on January 1, 1991.

III. Purpose

The purpose of programs in education about religion is to enable students to acquire knowledge and awareness of a variety of the religious traditions that have shaped and continue to shape our world. The programs enable individuals to understand, appreciate, and respect various types of religious beliefs, attidues, and behaviour.

The purpose of these programs is not to instil the beliefs of any particular religion. It is the prerogative of individual pupils and their families to decide which religious beliefs they should hold. Indoctrinational religious education has no place in the curriculum or programs of public elementary and secondary schools of the province.

IV. Content

Since the world's religions are many and varied, a particular program in education about religion cannot be expected to include every one of them. As a minimum, programs in any grade should include a balanced consideration of world religions that have continuing significance for the world's people.

Both content and method should be appropriate to the ages and levels of maturity of the pupils. In developing programs of education about religion, consideration may be given to various organizational frameworks.

V. Resources

The Ministry of Education will develop a resource document to assist boards of education in developing programs in education about religion for elementary schools.

Programs for the secondary schools will continue to be developed in accordance with History and Contemporary Studies, Part C: Senior Division, Grades 11 and 12, 1987.

VI. Context

This permanent policy and the forthcoming amendments to Regulation 262 are to be understood within the context of the long-established vision of the public elementary and secondary schools as places where people of diverse backgrounds can learn and grow together. The public schools are open and accessible to all on an equal basis and founded upon the positive societal values which, in general, Canadians hold and regard as essential to the well-being of our society. These values transcend cultures and faiths, reinforce democratic rights and responsibilities, and are founded on a fundamental belief in the worth of all persons.

(Emphasis added)

   The Education Act, R.S.O. 1990, c. E.2, addresses religious instruction in the schools as follows:

   51(1) Subject to the regulations, a pupil shall be allowed to receive such religious instruction as the pupil's parent or guardian desires or, where the pupil is an adult, as the pupil desires.

   (2) No pupil in a public school shall be required to read or study in or from a religious book, or to join in an exercise of devotion or religion, objected to by the pupil's parent or guardian, or by the pupil, where the pupil is an adult.

The regulations which are being challenged, in addition to Policy Memorandum 112, are ss. 28 and 29 of Reg. 298 which state:

   28(1) A board may provide in grades one to eight and in its secondary schools an optional program of education about religion.

(2) A program of education about religion shall,

(a)promote respect for the freedom of conscience and religion guaranteed by the Canadian Charter of Rights and Freedoms; and

(b)provide for the study of different religions and religious beliefs in Canada and the world, without giving primacy to, and without indoctrination in, any particular religion or religious belief.

   (3) A program of education about religion shall not exceed sixty minutes of instruction per week in an elementary school.

   29(1) Subject to subsections (2) and (3), a board shall not permit any person to conduct religious exercises or to provide instruction that includes indoctrination in a particular religion or religious belief in a school.

   (2) A board may enter into an agreement with a separate school board or the Roman Catholic sector of The Ottawa-Carleton French-Language School Board that permits the separate school board or the Roman Catholic sector to use space and facilities to conduct religious exercises or provide religious instruction for the purposes of the separate school board or the Roman Catholic sector.

   (3) A board may permit a person to conduct religious exercises or to provide instruction that includes indoctrination in a particular religion or religious belief in a school if,

(a)the exercises are not conducted or the instruction is not provided by or under the auspices of the board;

(b)the exercises are conducted or the instruction is provided on a school day at a time that is before or after the school's instructional program, or on a day that is not a school day;

(c)no person is required by the board to attend the exercises or instruction; and

(d)the board provides space for the exercises or instruction on the same basis as it provides space for other community activities.

   (4) A board that permits religious exercises or instruction under subsection (3) shall consider on an equitable basis all requests to conduct religious exercises or to provide instruction under subsection (3).

   D. The Adler Decision

   The most recent case in the "trilogy" is the Adler decision which was released just prior to the argument in this matter. Counsel agree that Adler is determinative of certain issues of non-funding of independent minority religious schools raised in this proceeding which, as a result, must be decided in favour of the respondent. Accordingly, this issue was not argued here, it being understood that the applicants were preserving their position in the event of a successful appeal in Adler at the Supreme Court of Canada. The claims for relief being preserved are those requested in ss. 1(ii), (iii), and (iv) of the amended notice of application. The application of Adler to the remaining issues was, however, hotly disputed.

   The issue in Adler was framed as follows, at pp. 5-6:

   The principal issue in these appeals is whether, by reason of ss. 2(a) and 15 of the Canadian Charter of Rights and Freedoms, the Province of Ontario is now mandated through public funding to foster and facilitate religious education for all the diverse religious groups within Ontario.

   The essence of the Court of Appeal's decision in Adler is that there is no obligation on the government to fund private minority religious schools. By the time Adler was argued secularization was in place in the public schools system. The public school system, except for the public Roman Catholic schools which are specifically provided for in s. 93 of the Constitution Act, 1867, had a secular curriculum and there were no religious exercises. Religious education was available but optional in accordance with Policy Memorandum 112. If a parent or student wanted religious education, they had recourse to the private school system, but had to pay for it.

   The appellants in Adler were parents who sent their children to private religious-based independent schools. Dubin C.J.O. held that s. 2(a) was not breached by the absence of government funding of these independent religious schools. At the outset of his reasons he emphasized that it is not the role of the court to make a policy decision on public funding of religious-based independent schools, it is up to the legislature.

   The motions judge, from whose decision the appeal lay, had held that s. 21 of the Education Act made school attendance mandatory and compelled the appellants to pay tuition fees for private religious education. This, he held, in the absence of provincial funding, constituted a breach of s. 2(a) of the Charter. Dubin C.J.O. found that the motions court judge had erred by so holding. Section 21 of the Act requires a child to attend school. If the child is receiving satisfactory education elsewhere he or she is excused from attendance. There is, therefore, no requirement that the child attend public school or a separate school under the jurisdiction of the appropriate board as defined by the Act. The section does not mandate compulsory attendance at a non-denominational school.

   Although no mention was made in Adler of the Elgin County case, Dubin C.J.O does refer to Zylberberg. He reviewed the reasoning of the motions court judge that Big M

Drug Mart, Edwards Books & Art Ltd. v. R., [1986] 2 S.C.R. 713, 28 C.R.R. 1 ("Edwards Books"), and Zylberberg support the proposition that non-funding to the private religious-based independent schools constituted an infringement of s. 2(a). Dubin C.J.O. disagreed. He stated, at p. 14, that the decisions of the Supreme Court of Canada in Big M Drug Mart and Edwards Books do not support the proposition that the government is under a duty to provide funding to "such institutions". In Zylberberg and the cases relied on for its decision, it was government action that was held to be offensive. Dubin C.J.O. distinguished the case before him at p. 18 as follows:

   In this case, in my opinion, there was no government action that compelled the appellants to send their children to private religious-based independent schools. They were free to send their children to secular public schools maintained at public expense. Their decision not to do so was solely a response to their religious beliefs and not a result of any government action.

Dubin C.J.O. pointed out that what is being complained of is not government action but, rather, government inaction. In these circumstances this cannot be the subject of a Charter challenge. He commented at p. 18:

   It is not necessary in this case to determine whether it would be open to the government, in the absence of specific constitutional authority (such as s. 93 of the Constitution Act, 1982), to provide public funding for all private religious-based independent schools. This will be dealt with by the courts in the event that such a situation arises and is challenged.

   It was key to the decision of the Court of Appeal that there was no support for the proposition that a failure to fund private religious-based independent schools interfered with one's freedom of religion.

   Dealing with the s. 15(1) argument, Dubin C.J.O. stated that, with respect to religious and language instruction, he was of the view that s. 93(1) of the Constitution Act, 1867, and s. 23 of the Charter define the extent of the legislature's obligations under the Constitution.

   Chief Justice Dubin considered the analysis in the lower court to the effect that the Act compels parents to send their children to school; because of their religion, they must go to private school; thus they cannot attend public schools. Dubin C.J.O. disagreed with this analysis.

   The Chief Justice opined that if the absence of funding for private schools creates a distinction, it is not one based on religion. The publicly funded school system is secular. The Education Act does not provide funding for any private school regardless of whether it is a religious school or not. The government funds the secular school system so as to

provide "universally accessible educational opportunities for all" (at pp. 23-24 of the decision).

   In order for a breach of s. 15(1) to be established, a two-part analysis is required. Chief Justice Dubin explained that first, it is necessary to determine that the distinction is one based on characteristics that are either enumerated in s. 15, or, analogous to those enumerated. Second, it must be established that the distinction is discriminatory. Discrimination occurs where legislation imposes a burden or obligation on the group that is distinctive, and not on others, or that benefits are being withheld that are available to others because of the distinction. The Chief Justice held that the Education Act does not draw any distinction based on religion, nor does it impose obligations or deny benefits on the basis of religion.

   His Lordship went on to consider whether there was adverse effect discrimination. To describe adverse effect discrimination, reference was made to the decision in Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at p. 551, 23 D.L.R. (4th) 321, where it was explained that a rule or standard adopted by an employer may, on its face be neutral but may have the effect of imposing obligations, penalties, and restrictive conditions on one employee or group of employees because of a special characteristic but not on others. It was reiterated that the children of the appellants were sent to publicly funded schools because of their religion, not because of the statute. The Act does not impose "obligations, penalties, or restrictive conditions not imposed on others" based on a special characteristic.

   Dubin C.J.O. referred to and agreed with two cases decided in the United States, Brusca v. Missouri, 332 F. Supp 275 (1971), affirmed 405 U.S. 1050, 92 S. Ct. 1493, and Norwood v. Harrison, 413 U.S. 455 (1973), which stand for the proposition that children who could attend publicly funded schools regardless of their religion, but choose to attend private schools, are not discriminated against.

   In the result, Dubin C.J.O., speaking for the court, Weiler J.A. dissenting on an issue not relevant to this proceeding, held that neither the appellants' freedom of religion, nor their right to equal treatment under the law, were infringed by the Education Act by reason of the failure of the government to fund private religious schools.

III. EVIDENCE

   In order to better appreciate the application of the law to the circumstances underlying this application, a review of the evidence is appropriate.

A. Manohar Singh Bal, Darshan Singh

   Mr. Bal and Mr. Singh are both members of the Sikh community in Ontario. In Toronto alone, there are approximately 100,000 Sikhs. The Sikh community has developed plans to establish a Sikh school in Ontario but it is very difficult for the community to support such a plan financially. Therefore, no such school exists. Both Mr. Bal and Mr. Singh

have children who attend public school. Both are devout Sikhs. The manner in which secular education is provided in the public schools is not conducive to encouraging Sikh children to develop and continue to practise their Sikh way of life. It was asserted that many Sikhs believe that in order for their religion and culture to survive, flourish and remain strong in Ontario, it is essential to establish schools for their community. They would like to establish a Sikh school in Ontario and point to British Columbia as an example of where a Sikh school exists that is partially funded by the government.

B. Dwarka Doobay, Deokaran Sharma

   Mr. Doobay and Mr. Sharma are members of the Hindu community in Ontario. Both have children. Mr. Doobay's two children attend Catholic separate school. Mr. Sharma's children attend public schools.

   Mr. Doobay and Mr. Sharma's concerns resulting in the support of this application are stated in paras. 11 and 12 of the appellants' factum as follows:

11.It is important to the members of the Hindu community for their children's lives to have a religious dimension. The relationship between parent and child is very important and an essential feature of the education in accordance with the Hindu faith. It is also essential to emphasize the relationship between student and teacher as one with a spiritual dimension. Hindus also have a strong code of moral and religious behaviour which they feel compelled by the principles of their religion to impart to their children. This is not possible through the secular public educational system. It is also important to religious Hindus that their children learn Hindi and Sandsribt [sic] and to also learn the Hindu code of dress, code of morals and principles of behaviour. The Hindus consider that Hindi is essential and that their children learn these religious principles in school as well as learning about Hindu religious festivals, dietary practices and other spiritual matters.

12.Some members of the Hindu community do not believe that the secular public eduational system meets the unique educational needs of the members of their community. They are concerned that their children who attend the public schools are losing their religious faith and that there is a dissipation of Hindu religious practice and belief within their children as a result of their exposure to a secular and materialistic culture and teaching which is pervasive in the public secular educational system. This is a case notwithstanding that over the past 15 to 20 years Hindu temples have been established in various communities throughout the province and there has been an attempt to provide teaching for the children of Hindu families in the temples to preserve the religion and culture of the Hindu community.

   It was further explained that, because of the cost, the community has not been able to establish a Hindu school. In addition, for many people the cost of tuition for a private school is prohibitive.

C. Albert Dreise, Marian Heinen Kits

   Mr. Dreise and Ms. Kits are members of minority Protestant religious communities. Both these applicants are Christian Reformed. Mr. Dreise's five children attend both an independent Christian school and public schools. Both of the Kits' children attend independent Christian schools. For both applicants it has meant financial hardship to send their children to independent Christian schools. The reason that they feel that this hardship is necessary was explained in para. 15 of the applicant's factum:

15.Albert Dreise and his wife want their children to have an education which integrates biblical Christian values with the curriculum and social life at a school. They believe it essential that their children attend a Christian school because it plays such a large part in the children's life and they spend so many hours at school. They want their children to have an education which recognizes God as creator, redeemer and sustainer of life. This is not taught in the secular public schools. They believe it essential that their children attend a school which has more than simply religious opening exercises but in which all subjects are taught from a particular Christian perspective. They also want their children to learn their particular values and beliefs of their religious faith. This cannot be accomplished through teaching at home or at church on Sunday, one day a week. Rather, they believe it must be taught on a regular basis if their children are to grow up into competent, integrated citizens of Canada. They send their children to a Christian school "for positive reasons".

   Mr. Dreise alleges that when his children attended in the public school system for a period of time, they did not receive an education consistent with their religious faith. It was his experience that the public schools teach and espouse their own set of secular principles and values, which are not only inconsistent with the Christian religious principles and values, but violate and undermine the beliefs in which his family wished to have their children educated.

   The Kits want to send their children to an independent Christian school which promotes tolerance and respect for a pluralistic and multicultural society and which promotes the values of tolerance, respect, love and caring among the school staff and amongst others in our society.

D. Sajjad Hanif and Zeyad Sakaa

   Mr. Hanif and Mr. Sakaa are members of the Muslim community in Ontario. Mr. Hanif's children have attended the Islamic community school in Mississauga which provides education until grade 8. His oldest child now attends a public high school. Mr. Zeyad, who has, since swearing his affidavit, returned to his native Syria, has five children, three of whom attended the Islamic community school in Mississauga. In 1992 he was required to take his children out of the school due to financial difficulties.

   These applicants' concerns are articulated in para. 25 of the factum:

25.Like other minority faith communities in Ontario, Ontario Muslims like Mr. Hanif and Mr. Sakaa are concerned that, if their children are exposed to the influences of the secular public school system for at least 40 hours a week, it will have a significant influence on their spiritual and moral development both because of the teaching provided in the school and also because of the peer pressure of other children who do not share the Islamic faith. Although parents attend mosque regularly and do everything they can to teach Islamic values to their children in the home, they recognize that their children spend a more significant amount of time at the school and that this has an impact on the preservation on their Islamic faith and culture. They believe that it is essential according the principles of their Islamic faith to have their children educated at an Islamic school, especially during their formative elementary schools [sic] years.

   The Islamic Community School in Mississauga is operated by the Islamic Society of North America, which also operates two other Islamic schools in Ontario, one in Québec, one in British Columbia and a number of schools in the United States. The applicants state that the schools have a non-discriminatory admission policy and promote tolerance and a respect for other faiths and other citizens in a pluralistic society. They were established to maintain and preserve the Islamic faith and culture in North America. The schools maintain a curriculum and academic standards established by the Ministry of Education. They offer fully accredited courses, in addition to Islamic religious teaching and religious practices. The entire curriculum is infused with Islamic principles. Attendance at the schools is voluntary and children who are not Muslim have attended the school and are not required to participate in religious practices.

E. Philip Friesen, Marvin MacDonald -- The Sturgeon Creek Alternative Programme

   The Friesens and the MacDonalds are devout Christians who believe it is essential for their children to be educated in a religious school in which the entire curriculum is taught from the perspective of their faith. They believe that they cannot fulfil their religious obligations as parents by simply teaching their children about their religious faith in their home and at their place of worship and by sending them to a secular school during the week. They believe that it is vital for their children's religious growth and for the continuation of their "faith community", that the children be educated by teachers who

share their religious principles and values in a school environment which encourages their particular faith tradition.

   In the 1970s Mennonite families in the Stratton area established a private Christian school known as the Stratton Christian Day School. They paid all the costs associated with establishing and running the school, notwithstanding that they were a small rural farming community. In 1977, the school entered into an agreement with the Fort Frances-Rainy River Board of Education to become an alternative Christian school operating within the local school board. This was done at the invitation of the board. The school became known as the Sturgeon Creek Alternative Program ("SCAP"). The school functioned under the authority of the Education Act and provided religious education classes and had religious exercises. Attendance was voluntary and the admission policy non-discriminatory. There has been, according to the factum of the applicants, no history or evidence of religious coercion with respect to the running of the school. Students are not required to participate in religious exercises.

   The Friesens and MacDonalds both have children who attend or have attended SCAP. Both Mr. Friesen and Mr. MacDonald are members of the Parents Advisory Committee of SCAP.

   SCAP was functioning well within the school board until Policy Memorandum 112 was issued which ordered the school boards to stop the provision of religious education within publicly funded schools. The school had to cease its religious curriculum, stop using the Bible as a teaching tool, stop engaging in opening religious exercises or prayer, and remove any religious literature and posters from the classrooms. Notwithstanding its establishment as an independent religious school and successful history as an alternative religious school meeting a diversity of needs for the religious community in the Fort Frances-Rainy River school district, by dictate of the Ministry of Education, SCAP was required to operate as a secular public school.

III. ISSUES

   There were divergent positions taken by counsel as to the appropriate characterization of the issue before the court. Mr. Charney, on behalf of the respondents, asserted that the decisions in the trilogy constitute a complete answer to the issue as framed by him. Mr. Jervis, on the other hand, stated that the issue falls outside the ambit of those cases and is a matter of first impression to be decided on principles elicited from various authorities.

   Mr. Jervis submitted that the issue ought to be framed as follows: Should a board of education be allowed to accommodate alternative religious schools? This is distinguishable from Adler in that the applicants seek a statement that the boards are permitted to accommodate religious minority education. There is no issue of funding, in his submission. By applying Policy Memorandum 112 across the board thereby removing from boards the discretion to allow alternative religious schools the applicants are being denied their Charter rights to freedom of conscience and religion, freedom of expression and their right to equality.

   Mr. Charney pointed out that a fundamental flaw with this proposition is that boards of education have no rights; they are creatures of statute and all their powers are those derived from the provincial government. The only powers inherent in the boards of education are those conferred upon them by the government. Determining what a board may do, therefore, is irrelevant. It is the parents who are the applicants in this matter; not the board or the teacher. The constitutional issue in this proceeding is as between the provincial government and the parents;  no board of education is a party. Mr. Charney, therefore, submitted that the three possible issues are:

1. the government must establish publicly funded denominational public schools

2. the government may establish publicly funded denominational public schools

3. the government cannot establish publicly funded denominational public schools

Both options 1 and 3 require a determination of whether parents have a right to have publicly funded denominational public schools established for their children. This, he submits, is clearly disposed of by Elgin County and Adler. Since the decisions in Elgin County and Zylberberg, the government cannot establish denominational public schools because the public school system must be non-denominational. The government has no obligation to fund alternative or denominational schools as a result of the decision in Adler. Mr. Charney argued further that, if he is incorrect and the issue ought to be framed as option 2, that is, the government has an option to establish denominational schools, then, the government has chosen not to establish such schools, which is constitutional.

In my opinion, the issue is:

Does the Charter give to the applicant parents the right to require the Minister of Education to provide and fund denominational religious schools for minority religious groups within the public school system? Is it a Charter infringement for the government to fail to do so?

   Mr. Jervis was candid to concede that, if the issue were to be crafted as above, given the decisions in the trilogy, his position could not prevail. I agree. Nevertheless, I will deal with his arguments as they were advanced.

IV. ANALYSIS

   Mr. Jervis, on behalf of the applicants, submitted that Policy Memorandum 112, and ss. 28 and 29 of the regulations constitute an infringement of ss. 2(a), (b) and 15(1) of the Charter because they do not make provision for minority religious education. He argued that since members of minority religious groups must pay for private religious education for their children, there is a state-imposed burden on their religious practices. The situation facing minority religious groups is analogous to the situation found to be unconstitutional in Zylberberg and Elgin County. Adler, it was argued, is distinguishable

because it deals with government "inaction". In this case, Policy Memorandum 112 and the regulations constitute government action. Also, in support of his argument, Mr. Jervis referred to the report of Dr. Shapiro, a former Deputy Minister of Education, called The Report of the Commission on Private Schools in Ontario (October 1985) ("Shapiro Report") which recommended that independent minority religious schools be established in "association" with the school boards with at least 85 per cent funding. The issue here, he asserted, is not a funding issue, and therefore, the decision in Adler is inapplicable.

A. Freedom of Conscience and Religion

   In the Adler decision, the court contemplated whether the appellants' freedom of conscience and religion was infringed because they had to pay for private schools in order for their children to obtain a religious education. At p. 10, Dubin C.J.O. explained the meaning of s. 2(a) rights:

   The right involves the freedom to pursue one's religion or beliefs without government interference, and the entitlement to live one's life free of state-imposed religions or beliefs. It does not provide, in my view, an entitlement to state support for the exercise of one's religion. Thus, in order to found a breach, there must be some state coercion that denies or limits the exercise of one's religion.

(Emphasis added)

   Mr. Jervis argued that secularism is coercion. He suggested that, just as state-mandated majoritarian Christian beliefs were taught in the public schools prior to Elgin County, secularization means minority religious groups still do not have the opportunity to put their religious views forward as part of their education. This they ought to have a right to do through alternative religious schools. Secularism, he argued, is not neutral because the effect of the system is not value neutral when applied to minorities because it undermines their values. The current law proscribes indoctrinational teaching in the public schools. The policy states that a school is not to give primacy to any religion either in exercises or indoctrinational instruction which is exactly what the applicants wish to do in pursuance of their religious beliefs. He stressed that indoctrinational instruction is the very reason for the existence or establishment of alternative religious schools. It pervades every aspect of the school activities. Secularism is coercive, and not neutral, he submitted, because it rules out the existence of alternative religious schools. In addition, Mr. Jervis argued that neither the Act, regulations nor the policy memorandum contain a definition of alternative schools. As a result, he claimed, the policy and regulations are excessively broad and, therefore, unconstitutional.

   Given the trilogy there is no support in law for Mr. Jervis' position. The decisions in Zylberberg and Elgin County are clear as to when a person's freedom of conscience and religion is infringed. As stated by Mr. Jervis, there must be some form of coercion. However, in Zylberberg and Elgin County there was indirect coercion compelling those

children who held different beliefs from the majority to be indoctrinated with the majoritarian views. The public school system is now secular. Its goal is to educate, not indoctrinate. This is very different from the goal in place at the time that Zylberberg and Elgin County were decided. Secularism is not coercive, it is neutral. The logic is lacking to support Mr. Jervis' contention that the secularization is a form of coercion and is not neutral.

   Chief Justice Dubin stated, at p. 18 of Adler:

   There is no provision in the Education Act which in any way interferes with the freedom of conscience and religion of the appellants. The public schools cannot accommodate the appellants because the religious instruction that they are seeking is not permissible in such institutions. What is really complained of in this case is not government action, but government inaction which in the circumstances of this case cannot be the subject of a Charter challenge. The absence of funding in the Education Act for private, religious-based independent schools does not contravene s. 2(a) of the Charter.

   Mr. Jervis argued that Policy Memorandum 112 constitutes government action thereby distinguishing the Adler decision which dealt with government inaction. Policy Memorandum 112 requires public schools to be secular. In my opinion, it does not constitute a form of government action which prefers one religion over another, nor does it represent majoritarian religious views. This policy seeks to abolish distinctions in the public school system which are based on religion. It dictates what must be done to secularize the public school system. There is no foundation for the argument that this policy constitutes government action which infringes a person's right to freedom of conscience and religion. Rather, it evolved from judicial pronouncement concerning compliance with the Charter.

   Relating to Mr. Jervis' submissions, Dubin C.J.O.'s reasons in Adler are of relevance. His Lordship stated at p. 18:

   In this case, in my opinion, there was no government action that compelled the appellants to send their children to private, religious-based independent schools. They were free to send their children to secular public schools maintained at public expense. Their decision not to do so was solely a response to their religious beliefs and not a result of any government action.

Mr. Jervis argued that the applicants, here, do not have the choice of sending their children to private schools because such schools do not exist. The reason, he emphasized, that they do not exist is that the communities are unable to financially support their own private religious schools. This is said to constitute coercion. On the contrary, and in any event, this argument is the equivalent of the non-funding argument put forward in Adler,

the decision in which is determinative. Moreover, as discussed further below, this argument detracts from Mr. Jervis' submission that the applicants are not seeking relief under the Charter because of non-funding.

   Mr. Jervis sought to narrow the focus of Adler in an effort to distinguish the present case from it, by urging that Adler only applies to funding of private religious minority schools. He underlined that the applicants are seeking a declaration that they be permitted to apply to a board of education for status as an alternative school within the public school system. He states that the decision to admit the schools is discretionary and as such, does not amount to a claim for public funding.

   Mr. Jervis submitted that his purpose in striking down Policy Memorandum 112 and the regulations as they pertain to the applicants is not to include religious alternative schools in the public school system de facto. Rather it is only to permit individual boards of education to receive applications from individual schools. In my opinion, this point is tangential to the issue that is at the root of this matter. Boards of education are statutory bodies which draw their jurisdiction from the empowering legislation, the Education Act, as administered by the Ministry of Education.

   In my opinion, this argument fails. The effect of allowing a minority religious alternative school in the public school system is government funding of minority religious schools. As the court stated in Adler, the government is not obliged to provide such funding.

   In recapitulation, Mr. Jervis stated that the public school system, elementary and secondary, in the period preceding the trilogy of Court of Appeal decisions on religious education, was oriented toward the Christian majoritarian religious faith. This was not insidious but, rather, was specifically mandated by the regulations to the Education Act. Minority alternative religious schools, such as SCAP and Eden, were accepted within the public school system and carried on in furtherance of their religious beliefs and practice, while complying with all of the requirements of the Education Act. The impact of Zylberberg and Elgin County is only to remove the majoritarian Christian influence, he urged.

   He continued with reference to the Shapiro Report in support of the argument that independent minority religious schools should be "associated" with the school board in continuation of the prior government stance. However, in cross examination, Dr. Shapiro conceded that he had not re-evaluated his opinion and recommendations since the Ontario Court of Appeal's decisions in Zylberberg and Elgin County. Dr. Shapiro's views are, therefore, irrelevant given the subsequent pronouncements of the court. The decision in Zylberberg and Elgin County cannot be read as narrowly as Mr. Jervis suggested.

   One reason advanced by Mr. Jervis in support of the claim that the applicants' situation is different from Elgin County and Zylberberg is that, in those cases, the court was asked to consider non-secular regulations which provided an "opt-out" provision. He claimed that alternative religious schools in the public school system constitute an "opt-in"

system, thereby rendering them constitutionally sound. This argument is flawed. In my opinion, the "opt-out" provision dealt with in Elgin County and Zylberberg meant that students were able to obtain permission to be exempt from religious exercises and instruction pursuant to an exemption provision in the regulation. The onus was upon the parent or child to obtain the exemption and in doing so the child was set apart from his or her peers. By contrast the "opt-in" at the alternative religious schools referred to a student's choice of enrolment. That is, a student is free to enrol in an alternative religious school or go to a public secular school. Once a student is enroled, however, they must participate in the religious education and exercises that are part of the curriculum and they are expected, upon admission, to respect the rules of the school. To the extent that the court in Elgin County stated that it was not giving any opinion regarding "opt-in" programs, it must be pointed out that the term, as it is used in Elgin County, has no parallel to its usage in the present circumstances.

   Mr. Charney illustrated that "opt in" was not the true converse of "opt out" and thus lawful by the following example. If the only school, or most convenient school, in a neighbourhood is an Islamic religious school and a Christian child wished to attend, that child will be admitted but must abide by the policies of the school including religious exercises and instruction which would be implicit in the school's every aspect. This would give rise to the exact problem that the decisions in Elgin County and Zylberberg sought to rectify. Mr. Jervis' only response to this postulation was that it would never occur. In my view, this is not a satisfactory rebuttal.

   Mr. Charney drew the court's attention to the decision in Re Board of Education for the Borough of North York and Ministry of Education (1978), 19 O.R. (2d) 547, 6 M.P.L.R. 249 sub nom. Toronto Hebrew Schools v. North York Board of Education (H.C.J.), affirmed April 9, 1979 (Ont. C.A.), in which an application was brought for a declaration concerning a proposal to integrate Hebrew schools into the public school system. This proposal would have the effect of establishing a school or schools within the school district in which religious courses would be mandatory. At pp. 559-60 J. Holland J. said:

   As the legislation presently stands the question propounded must be answered in the negative. While a pupil may not have a right to attend a particular school within a school district as found in Crawford, there is a clear right in each and every student in each and every school within the district, to claim exemption from any religious studies. To say that this could be overcome by grouping students who are prepared to accept instruction in a particular religion in one school within a school district is illusory. Students or parents on behalf of students may elect to opt out of any religious instruction at any time and not merely prior to the commencement of a school year when under the proposal put forward the applicant board could assign students to another school. If the applicant board was correct in its proposal to overcome the problem which I have been called upon to consider, we could be faced with the situation where, within any school district, one could find denominational schools each teaching its own special

mandatory course in religion. This would be a clear departure from the intention of the Legislature in my opinion. Counsel for the applicant, when this question was posed during the course of argument, stated that this was conceivable under the current legislation and that the school board would be required, if necessary, to build additional schools to so accommodate the pupils in the different groups. I am unable to accept that submission as having any persuasive force.

   No school board has the power under the present legislation, in my opinion, to establish a mandatory course of religious instruction in any school within the school district under the board's jurisdiction.

Mr. Charney submitted that this case stands for the proposition that "opt-in" schools are unlawful. It is noteworthy, though, that this decision was rendered before the Charter was in force.

   I accept Mr. Charney's submission that the characterization of the minority religious schools as "opt-in" schools, with a view to avoiding the decisions in Zylberberg and Elgin County is a misnomer. Such schools are indistinguishable from majoritarian schools except for the fact that they are described as minority schools. As such, no basis exists for their exclusion from the application of Policy Memorandum 112 and the regulations. The same principles which produced Policy Memorandum 112, that is, the decisions of the Court of Appeal in Zylberberg and Elgin County are applicable to them. These principles are the product of Charter infringement; how then can they be said, when applied uniformly, to constitute a further Charter infringement? In my opinion, such a contention is untenable.

   Mr. Jervis, while he conceded that Adler is determinative of the funding issue, submitted that this case cannot properly be characterized as a funding question. Consequently, he asserted, Adler is not applicable.

   On the other hand, Mr. Charney emphasized that the evidence before the court, submissions of counsel and the remedy sought make it apparent that the central thrust of the applicants' position is to bring the religious minority alternative schools under the aegis of the public school board so as to obtain the financial support of the public school system. Indeed, the relief requested is replete with references to funding. If there is any question concerning this, he urged that the court draw an inference to this effect. I agree with Mr. Charney's analysis. The evidence is conclusive and, in any event, I am prepared to draw such an inference. Central to the thrust of the applicants' position is the objective of government funding. Since this is integral to the issue, the decision in Adler is determinative of this proceeding.

   Chief Justice Dubin concluded his reasons on the issue regarding the non-funding of private religious schools and the appellants' freedom of religion at p. 19:

   Even if it was open to the government to provide funding for private, religious-based independent schools, I find no support anywhere for the proposition that the absence of such funding interferes with one's freedom of religion.

In my view whether such schools are inside or outside of the public school system is immaterial.

At pp. 6-7 of the Adler decision Dubin C.J.O. stated:

   Before detailing my reasons for arriving at that conclusion, it is important to stress that it is not the role of the court to determine whether, as a matter of policy, public funding of private, religious-based independent schools is or is not desirable. That is for the legislature to decide. The sole issue before us is whether the absence of such funding is consistent with the Constitution of Canada.

The sole issue, here, is whether the failure to establish and fund religious minority schools within the public school system infringes the applicants' freedom of conscience and religion. In my opinion, it does not.

B. Freedom of Expression

   Mr. Jervis submitted that Policy Memorandum 112 and ss. 28 and 29 of Reg. 298 infringe s. 2(b) of the Charter. It was argued that the teachers and students are no longer, with particular reference to existing schools, allowed to express their views on religion, hang religious posters, and other forms of expression because Policy Memorandum 112 and the regulations limit what can be said in a classroom.

   Mr. Jervis referred to decisions of the Supreme Court of Canada on the issue of freedom of expression. He summarized a test he derived from that court's decisions in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, 39 C.R.R. 193; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139, 4 C.R.R. (2d) 60; Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712, 36 C.R.R. 1, and Ramsden v. Peterborough (City), [1993] 2 S.C.R. 1084, 16 C.R.R. (2d) 240. In his factum he stated the test as follows:

   The First Step

(1)Does the Charter applicant's expressive activity convey or attempt to convey meaning? [or]

(2)Does the expressive activity further one of the interests underlying the

right to freedom of expression being the pursuit of truth, the encouragement of social, community and political activity, or the fostering of the self-fulfilment of the speaker or the listener?

If either of these two questions is answered affirmatively, then the expressive conduct is prima facie protected within s. 2(b), unless it falls within one of the three narrow exclusions which exclude:

(1)forms of expression that involve rape, murder, or other similar activities; and either

(2)expressive activity involving the use of or access to public property that is incompatible with the "essential" or "primary" function of that public property (per Lamer C.J.) or

(3)the use of or access to public property for expressive purposes that does not promote the interests and principles underlying freedom of expression (per McLaughlin J. [sic])

The Second Step

128.Once a Charter applicant establishes that his or her expressive activity is protected under s. 2(b), the Court must consider in the second step of the general analytical test the purpose and effect of the law and determine:

(1)whether the purpose of the impugned legislation is to restrict protected expression; or

(2)whether the effect of the impugned legislation or conduct is to restrict his or her expressive activity which promotes one of the interests or values underlying freedom of expression.

   Without quarrelling with counsel's statement of the test, dealing with the First Step, it is necessary to identify the applicant. In this case, the applicants are parents of children attending school. Next, the "expressive activity" must be defined. This is said to be teachers' and students' expression of their religious views. Since this expressive activity does not fall within any of the three exclusions in the test, then it is necessary to consider

the second step. This step involves an analysis of the purpose and effect of the law. Mr. Jervis submitted in his factum that:

129.. . . Furthermore, it is the intention of the Policy and Regulation to specifically limit a form of expression with respect to religious matters and, specifically to limit and preclude religious teaching of an indoctrinational nature. As such, it is the intention of the Policy and Regulation to limit freedom of expression.

In my opinion, the purpose of Policy Memorandum 112 and the regulations is to secularize the public school system, not to restrict protected expression. Their effect is to promote secularism in the public schools and not to restrict expressive activities which promote the interests or values underlying the freedom of expression. The stated objective is the protection of minority rights.

   But, in reality none of the parties to this application have had their expression restricted. A student is not prevented from speaking his or her beliefs. Indoctrination is limited but not expression. Teachers are not parties to this application but, in any event, there is nothing to preclude a teacher from expressing his or her beliefs outside of the school curriculum. The only limitation is that teachers, and the school, are not to indoctrinate or give primacy to any religion.

   Mr. Jervis relied heavily on R. v. Keegstra, [1990] 3 S.C.R. 697, 3 C.R.R. (2d) 193, in argument, for the proposition that a teacher's freedom of expression is infringed if they are not able to depart from the school curriculum. This case has no application to the case at bar. Mr. Keegstra was a teacher challenging a Criminal Code provision under which he had been charged. The question before the court was whether a law which prohibited the dissemination of hate propaganda infringed his Charter rights. The court held that the section infringe Mr. Keegstra's right to freedom of expression but that the section is justifiable under s. 1. In the present case, the teachers are not applicants, the parents' rights are not infringed and the students are restricted only by the curriculum. In my view, the Keegstra decision does not stand for the proposition which Mr. Jervis asserts: that a teacher may teach whatever he or she desires and cannot be bound by any particular curriculum.

   Neither Policy Memorandum 112 nor ss. 28 and 29 of Reg. 298 infringe s. 2(b) of the Charter.

C. Equality Rights

   Mr. Jervis submitted that the applicants' right to equality pursuant to s. 15(1) of the Charter has been breached. This claim, he urged, does not arise from the distinction between the funding of Roman Catholic schools, as juxtaposed to other minority faith communities. Rather, he argued, the distinction occurs because certain minority religious groups cannot benefit from a secular public school system due to their religious beliefs.

Therefore, they are compelled by the regulations and Policy Memorandum 112 to fund their own religious schools because they cannot, as a result of their religious beliefs, in good faith, participate in the secular educational school system provided by the Ontario government. This denial of public funding of education for religious minority education means that minority religions must bear the costs of education compared with the majority, who are able to enjoy the benefit of the secular public schools. This gives rise to the s. 15 complaint.

   In Adler, Dubin C.J.O. considered the decision of the Supreme Court of Canada in Reference re Act to Amend the Education Act (Ontario), [1987] 1 S.C.R. 1148, 36 C.R.R. 305 ("Bill 30 Reference"), to be "quite decisive of the discrimination issue in these appeals." (at p. 20). The discrimination issue before the Court in Adler was framed by the appellants as follows, at p. 19:

   Counsel for the Adler appellants, although not seeking to attack the full funding of Roman Catholic separate schools in the Province of Ontario, submitted that by denying funding for Jewish Day Schools while funding Roman Catholic separate schools, the Adler appellants were denied the equal benefit of the law contrary to s. 15 of the Charter.

   Mr. Jervis, argued that Adler is distinguishable from the case at bar in that Dubin C.J.O. held that there was no discrimination since the appellant parents had access to private religious schools. By contrast, Mr. Jervis said that for certain of the applicants here, there are no private religious schools, and so, Adler has no application.

   Dubin C.J.O. gave the decision in the Bill 30 Reference a broad interpretation when at p. 23, he said:

   In my opinion, s. 93(1) of the Constitution Act, 1867, and s. 23 of the Constitution Act, 1982 define the extent of the constitutional obligations of the legislature with respect to denominational and language instruction. Under such circumstances, no claim based on alleged unequal treatment under s. 15(1) may be asserted by an individual in the protected areas of minority language education rights and denominational education rights.

(Emphasis added)

   The applicants' argument overlooks the fact that there are those of the majority, in circumstances like Elgin County, who are now denied access to their religious exercises and instruction. As stated the public school system is secular. No one religion is favoured. Fundamental to the educational system is teaching without religious indoctrination.

   Chief Justice Dubin described the public school system, in the context of a s. 15(1) challenge at pp. 23-24:

   The publicly funded educational system provides universally accessible educational opportunities for all, regardless of their ethnic, racial or cultural background, social or economic status, age or religious preferences. The Education Act provides access to public education without regard to religious beliefs or conviction. The public school system is solely secular and, in my view, because it is secular, it cannot found a claim of discrimination because it does not provide public funds for religious education under private auspices. The Education Act does not provide for public funding of any private school, be it denomination or otherwise.

This analysis is applicable to the matter at hand. Although the Adler decision dealt with a quest to obtain public funding in private schools, the goal there was the same as it is here. That is, by seeking to place alternative minority religious schools within the public school system, the applicants are, directly or indirectly, seeking public funding for minority religious schools. Despite Mr. Jervis' efforts to frame the question differently, that is the clear sense of what is sought in the present application.

   It was argued that the policy memorandum and the regulations constituted adverse effect discrimination. That is, while the government action may be neutral on its face, the effect is to discriminate against an enumerated group in s. 15(1). Hence, although the purpose of the regulations and policy memorandum are not unconstitutional, the effects of them are. Mr. Jervis submitted that the final test is whether the government prohibition through Policy Memorandum 112 and the regulations is just, fair, and constitutional. He submitted that it was not.

   Dubin C.J.O. explained adverse effect discrimination and its application to the case before that court at pages 24-25:

   I recognize that a statute can on its face be neutral and yet can constitute adverse effect discrimination.

   In Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at p. 551, 23 D.L.R. (4th) 321, McIntyre J. considered adverse effect discrimination, as follows:

A distinction must be made between what I would describe as direct discrimination and the concept already referred to as adverse effect discrimination in connection with employment. Direct discrimination occurs in this connection where an employer adopts a practice or rule which on its face discriminates on a prohibited ground. For example, "No

Catholics or no women or no blacks employed here." . . . On the other hand, there is the concept of adverse effect discrimination. It arises where an employer for genuine business reasons adopts a rule or standard which is on its face neutral, and which will apply equally to all employees, but which has a discriminatory effect upon a prohibited ground on one employee or group of employees in that it imposes, because of some special characteristic of the employee or group, obligations, penalties, or restrictive conditions not imposed on other members of the work force.

   Again, the Education Act does not impose "obligations, penalties, or restrictive conditions not imposed on others" based on some special characteristic. As stated earlier, it was their religion, and not the statute, that caused the appellants not to send their children to the publicly funded school system.

(Emphasis added by Dubin C.J.O.) Similarly, in this case, it is not the policy memorandum and regulations which impose obligations, penalties, restrictive conditions on the applicants, and not on others. Instead, it is the applicants' choice of education for their children. The public school system is secular, it does not present the opportunity for education in any particular denomination or faith. The objective is to provide non-denominational education. Should parents desire that their children have a religious education they must assume the cost. This does not mean that there is adverse effect discrimination. The government prohibition is just, fair and constitutional.

D. Section 1

   Given the findings with respect to ss. 2(a), (b) and 15(1) there is no need to consider whether the policy memorandum and ss. 28 and 29 of the regulations are justifiable under s. 1 of the Charter.

V. CONCLUSION

   The seminal decisions in the trilogy are binding on this court. Although the circumstances of the applicants before the court in this case are varied, the principles in those decisions bear directly on these factual circumstances so that, given those decisions, the applicants cannot succeed. I therefore find that Policy Memorandum 112 and ss. 28 and 29 of the regulation do not infringe ss. 2(a), (b) and 15(1) of the Charter. To grant the relief sought in this application would require that the court undo what the Ontario Court of Appeal has decided in Zylberberg, Elgin County and Adler.

   The parties may make submissions regarding costs.

Application dismissed.