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AN ANALYSIS - CHAMBERLAIN VS. SURREY SCHOOL
BOARD
SUPREME COURT ORDERS HOMOSEXUAL PROPAGANDA IN BC SCHOOLS
Editor's Note
Below is an analysis of the December decision
by the Supreme Court of Canada in the Surrey BC School
Board case. This decision has enormous implications for
Canadian society, not only for the public school system, but
also perhaps in the Catholic and private schools as well.
The majority of the Supreme Court decided
in this case, ignoring the law, common sense and the implications
to society and its vulnerable children, that homosexuals must
be given special protection and rights in our school system.
Certainly the protection and rights of parents with a religious
perspective have been denied by this decision.
Chief Justice Beverley McLachlin, on behalf
of the majority, admitted that this case does not involve
the strict application of legal rules or the interpretation
of the law, and that the legislature intended to let the board
and hence the community have a say in choosing resource material.
…… (paragraph 13)
She climbed several mountains: 1. to obtain
jurisdiction for the Court to deal with the issue,
and 2. to reach the conclusion in support of homosexual material
in the schools.
That is, the Court had to create an argument
(weak though it was) to assume jurisdiction to overturn the
discretionary decision of an elected school board, given to
it under the BC School Act, and it had also to "read
in" or "re-interpret" the clear wording the
BC School Act in order to achieve its objective.
In this regard, the Court assumed jurisdiction
by claiming that the issue before them dealt with a "human
rights matter in which the Court had particular expertise",
and that the BC legislature had intended a "relatively
robust level of court supervision" over the issue. These
are far from persuasive arguments.
In her decision on behalf of the majority,
Madam Justice Beverley McLachlin "read into" section
76 of the BC School Act "tolerance and diversity"
(which were not mentioned there at all) and claimed that pro-homosexual
material in the curriculum was necessary to create tolerance
and diversity in the school system. A conclusion, which although
creative, certainly was not based on law but on ideology.
The Decision
In an explosive decision handed down the week
before Christmas on December 20th, the Supreme Court of Canada
in a 7 - 2 decision decided, in the Surrey BC School Board
case that the latter had failed to consider the important
requirement of "diversity" and "tolerance"
required by S. 76 of the BC School Act when it declined to
allow three pro-homosexual books for supplementary use in
Kindergarten and Grade 1 classes. As a result, in the Court's
opinion, the School Board's decision was "unreasonable"
and could not stand.
As stated by Mr. Justice Gonthier in his dissent
(in which he was joined by Mr. Justice Bastarache) the three
controversial books pronounced on the morality of same-sex
relationships by portraying them as "normal" and
"positive", contrary to the views of the parents
in that school district. The positive portrayal argument was
not surprising, since the books were recommended by GALE (Gay
and Lesbian Educators of BC), and it was a member of this
organization, James Chamberlain, who initiated the legal challenge.
Under the BC Schools Act, the Minister of
Education approves the basic educational resource materials
to be used in teaching, but confers on local school boards
the authority to approve supplementary educational resource
material. These supplementary materials are not required to
be used in the classroom, but are available if teachers choose
to use them.
The Appellant in this case, James Chamberlain,
a homosexual kindergarten teacher and a member of GALE, requested
that the three contested books be approved for supplementary
use by the Surrey Board. It is noted, however, that the Minister
of Education did not include books on same-sex parents in
its basic resource list, nor did it specify what kinds of
families should be identified in the classroom. Moreover,
no same-sex parents claimed in this case that there was discrimination
against them in the portrayal of family life in the classrooms.
The Surrey School Board examined the books,
and declined to include them as supplementary educational
material on the grounds that the books were inappropriate
for such young children, and that their use would interfere
with the rights of parents as the primary educators of their
children, undermining the relationship between home and school.
However, Madam Justice Beverley McLachlin,
on behalf of the majority, stated in paragraphs 10 - 25 of
her judgement, that parental views cannot override the necessity
of public schools to mirror the diversity of the community
and teach tolerance to children. She further stated that the
decision about whether to approve the three books had a human
rights dimension, and that the "courts are well-placed
to resolve human rights issues." According to Madam Justice
McLachlin, the legislature "intended a relatively robust
level of court supervision requiring not a rigid and sometimes
jurisdictional approach, but a more flexible, functional and
pragmatic approach to the issue." She then raised the
question as to whether the courts have expertise equal to,
or better than, the local board relative to the particular
human rights issue in the case. She answered her question
in the affirmative by concluding that since S.76 of the BC
School Act required "tolerance" and "diversity."
this required the acceptance of all family models. Consequently,
she concluded that the Court must exercise a "fairly
high level of supervision over decisions involving tolerance
and diversity."
Mr. Justice Gonthier, however, strongly disputed
this conclusion of Madam Justice McLachlin when he stated:
Based on the reasons of the Madam Justice,
it would seem that a school board could not exclude any
book regarding any family model, because to do so would
be contrary to the curriculum's reference to a "variety
of models" being addressed.
Madam Justice McLachlin stated, however, that
this issue was so important that it "negates the suggestion
that the courts should accord high deference to the Board's
decision." She did acknowledge that the issue "does
not involve the strict application of legal rules or the interpretation
of the law, and that the legislature intended to let the board
and hence the community have a say in choosing resource material.
…This is a case requiring the Board to determine how
to accommodate the concerns of some members of the community
in the context of a broader program of tolerance and respect
for diversity. This question attracts court supervision and
militates in favour of a stricter standard." (Emphasis
ours.)
It is important to note that S. 76 of the
BC School Act does not include the words "tolerance"
or "diversity." All that S. 76 of the Act provides
is as follows:
76. (1) All schools and Provincial schools
must be conducted on strictly secular and non-sectarian
principles.
(2) The highest morality must be inculcated,
but no religious dogma or creed is to be taught in a school
or Provincial school.
The majority of the Court concluded, however,
that the words "secular", "non-sectarian"
and 'highest morality" in S. 76 of the Act must be interpreted
as including the words "tolerance " and "diversity."
Thus, Madam Justice McLachlin found that the
decision of the Surrey School Board was "unreasonable"
in that it failed to promote respect and "tolerance"
for all the diverse groups that it represents and serves and,
therefore, the Board acted outside its mandate under the BC
School Act. Madam Justice McLachlin concluded that the message
of the controversial books was a message of "tolerance",
stating "tolerance is always age appropriate." In
effect, she has deemed that no child is too young to be provided
with, or have access to, pro-homosexual material.
It is clear from Madam Justice McLachlin's
judgement that the Supreme Court may now mould and interpret
laws, and determine public policy according to the intent
of the judges but not necessarily according to that of the
legislators.
To sum up Madam Justice McLachlin's extraordinary
decision, she and the majority on the Court, applying what
can fairly be described as weak and unpersuasive arguments,
usurped for itself the jurisdiction to interfere with and
re-interpret the plain words of the BC School Act in order
to override the decision of the School Board. The result allows
homosexual propaganda to be included in the curriculum.
As stated by Mr. Justice Gonthier in his strong
dissent, there is no Canadian law or constitutional provision
that prevents Canadian citizens from morally disapproving
of homosexual behaviour or relationships. He stated, "It
is a feeble motion of pluralism that transforms "tolerance"
into "mandated approval or acceptance." He went
on to say that "tolerance" does not require the
mandatory approval of the books under consideration, and that
"tolerance" ought not be employed as a cloak for
the means of obliterating disagreement."
Mr. Justice Gonthier further stated in his
dissent:
Paragraph 143.
I believe courts should be reluctant
to assume that they possess greater expertise than administrative
decision makers with respect to all questions having a human
rights
component.
Further at paragraph 150, he stated:
To permit the courts to wade into this
debate risks seeing S. 15 protection against discrimination
based upon sexual orientation being employed aggressively
to trump S. 2(a) protection of the freedom of religion and
conscience….
A Tiny Ray of Sunshine
There is a slight ray of sunshine in this
appalling decision in that the judges agreed that the requirement
in the BC School Act that schools operate along "strictly
secular and non-sectarian principles" refers to keeping
the schools free from inculcation or indiscrimination in the
perception of any religion. However, the decision does not
prevent persons with religiously-based moral positions on
matters of public policy from participating in deliberations
concerning moral education in public schools.
Madam Justice McLachlin acknowledged this,
but also compromised it by claiming that religious views cannot
deny equal recognition of a minority group (read: homosexual).
She stated at paragraph 19 of her judgement:
The Act's insistence on strict secularism
does not mean that religious concerns have no place in the
deliberations and decisions of the Board. Board members
are entitled, and indeed required, to bring the views of
the parents and communities they represent to the deliberation
process. Because religion plays an important role in the
life of many communities, these views will often be motivated
by religious concerns. Religion is an integral aspect of
people's lives, and cannot be left at the boardroom door.
What secularism does rule out, however, is any attempt to
use the religious views of one part of the community to
exclude from consideration the values of other members of
the community. A requirement of secularism implies that,
although the Board is indeed free to address the religious
concerns of parents, it must be sure to do so in a manner
that gives equal recognition and respect to the members
of the community. Religious views that deny equal recognition
and respect to the members of a minority group cannot be
used to exclude the concerns of the minority group. This
is fair to both groups, as it ensures that each group is
given as much recognition as it can consistently demand
while giving the same recognition to others. (Emphasis ours.)
The practical effect of this conclusion, however,
is that the religious views of parents may be taken into consideration
only when they do not conflict with "respect" and
"tolerance" for the views (and lifestyle) of others.
That is, parents with religious views must not raise objections
to those of same-sex parents and teachers in the schools since
this would be disrespectful and intolerant of them. Same-sex
parents and teachers in BC are now officially protected under
this ruling, as they may now successfully request that their
views be promoted in the schools, but parents who have religious
views on opposing homosexuality may not speak out against
it.
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