Millionth court case renders poor decision

by Jack Locke

It could have been an enlightening opportunity for the Supreme Court of Canada to give some teeth to the Canadian Charter of Rights and Freedoms, but instead the millionth judgment loaded into the CanLII(Canadian Legal Information Institute) database was a stinker.

“The landmark was reached with the publishing of the S.L. v. Commission scolaire des Chênes case on Friday,” wrote Michel Adrien, author of the blog Library Boy.

This case will be remembered for its abysmal denial of rights. It dismissed a complaint by a Quebec family challenging the provincial government’s mandatory Ethics and Religion Culture school program. It highlights some of the faults in our legal system that needs change. Pronto.

Let’s start at the top.

First off, it’s called S.L. and D.J. v. Commission scolaire des Chênes and the Attorney-General for Quebec, because the Quebec Superior court ordered a publication ban to hide the identities of the parents who brought the case, ostensibly to protect the innocent, as if the litigants’ children were young offenders.

Hiding the identity of complainants does nothing to protect children, but makes our open, public judicial system appear like an over-censored bureaucratic institution. If the truth shall set us free, we are far from achieving freedom. Whilst government and the courts think we need protection, they are supremely unwilling to stand up for citizens who launch Charter of Rights challenges. “We’ll protect their identities but damn if we’ll protect their rights,” is the story.

This case took approximately three and a half years to be finally adjudicated by the Supreme Court. The legal costs are not insubstantial. Nearly 20 lawyers appeared before the Supreme Court in this case. Yet, there was little need for the case to be brought in the first place if the government or school board had allowed the two little, apparently Catholic, children from being forced to “learn” the government’s version of ethics and religious culture. What harm is done by allowing parents a little control over what their children are taught?

However, once government rigidity digs in, it becomes incumbent on parents to protect their children according to their beliefs, who would expect less?

The Catholic couple had asked that their children be excused from attending state indoctrination classes, because of their deeply-held religious beliefs. Okay, one may debate whether state indoctrination in liberal values is harmful, but the right is not for the state, it is for individuals.

In addition to denying the applicants their sought relief for bringing a challenge against the school board and the provincial government, the Supreme Court awarded costs to the school board and government, meaning that the parents must pay for the board and government’s legal fees. But I note, a minority opinion by Justices Louis LeBel and Morris Fish would have not awarded costs to the government bodies. Good on ya, gentlemen.

Justice LeBel wrote minority opinion

The costs award shows the court punishing applicants for challenging authority. This is reprehensible.

Although, the two heretofore named judges agreed with the majority that the law should not be struck down, they pointed out how woefully inadequate the lower court record presented the case.

If a lower court judge misreports a case, the higher courts virtually cannot untangle the mess, unless they send it back downstairs for a retrial, or an adjustment. Bad cases are often either granted an appeal, or dismissed. No middle ground. Simple, but often unjust.

Justice Deschamps authored the decision

Madam Justice Marie Deschamps, who wrote the court’s decision, said that the lower court had no evidence to show a Charter infringement.

“In this case, given the trial judge’s findings of fact and the evidence in the record concerning the neutrality of the ERC Program, I conclude that the appellants have failed to prove such an interference,” wrote Deschamps. Clearly, a rote written explanation.

Lastly, here was a case of two parents claiming their religious freedom was being deprived, yet the Government of Canada did not intervene. Despite all their talk about the creation of an office for protecting religious freedoms, the Government of Canada was nowhere to be found.

I hope the next million cases entered into the CANLII database demonstrate better justice.

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