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On The Road To the Supreme Court of Canada?

Which case should be heard by the Supreme Court of Canada? Just ask the parents at the Sturgeon Heights school in Morinville, Alberta.

A controversy over religious instruction in the public school has caused much community friction and a decision to redraft the local school board policy. What is at issue is religious instruction in the public schools and, in this case, the recitation of the Lord's Prayer over the loud-speaker.

Although, there are exemptions to students, it is difficult to conceive how a student is supposed to opt-out from loud-speaker instruction. Even with the opt-out, the student is left in an uncomfortable position; not being part of a class or group is highly noticeable in a school environment. The stigma of being singled out as the "non-believer" is a very real possibility.

In fact, it was the potential for stigma which lead the Ontario Court of Appeal in the 1988 Zylberberg case to find such public school religious instruction to be contrary to the freedom of religion and conscience provided under s. 2(a) of the Charter. Freedom of religion encompasses the freedom to practice your own religious or spiritual beliefs without being coerced into practicing another's. More importantly in the Morinville situation, it includes the freedom to be free of religion. Such is the case in the Sturgeon Heights school, where the parent claiming a Charter breach is an atheist and does not want his children to be subjected to any religious instruction, no matter how innocuous. Indeed, since coming forward with his complaint, the family has been treated in a less than friendly manner by other families. It appears the mere claim has caused the stigma the Court in Zylberberg feared.

This issue has not been heard by the Supreme Court of Canada and it is an issue which requires clarification. The Alberta situation is mired in inconsistent school policy throughout the province. As an added issue is the constitutional quagmire caused by Alberta's admittance into the Dominion of Canada in 1905. One of the prerequisites of that admittance was the protection, through the Constitution Act, of the Province's school ordinance legislation. The very school ordinance which permits religious instruction. The Northwest Territories Court of Appeal (constituted by Appellate Justices from our Alberta Court of Appeal) in a 2008 case found the school ordinance was not constitutionally entrenched.

With this added twist, the Sturgeon Heights case calls out for clarification from our highest Court. There should be consistent policies throughout Canada on public school prayer and religious instruction. Considering the Supreme Court of Canada's comments on the importance of a secular school education in the Adler case and the importance of protecting Charter values inherent in a multicultural society as enshrined in s.27 of the Charter, the Zylberberg case may yet provide a road map for the Court.

Thus, the road not yet taken by the SCC may very well be the road to Morinville, Alberta.

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