Amid the numerous stories we worked on last week, the BC Human Rights Tribunal released a 90-page decision following a complaint against a Bowen Island Montessori School (BIMS).
When I wrote about the complaint when it was filed over two years ago, I said:
The Montessori’s efforts to single out one family discriminated against them for their beliefs and sends a signal to prospective families on Bowen Island that the school requires ideological conformity from its community.
In her decision, Tribunal Member Barbara Korenkiewciz agreed. She awarded $5000 each to parents Gary Mangel and Mai Yasué and $2000 for their child.
Atheism is a protected class
The bulk of the decision documents the increasing tensions between Mangel and Yasué and the administration of BIMS. I won't recount that here, though many of the exchanges have been ripe for sensational media coverage. The complaint itself stems from the culmination of the confrontation when BIMS asked the parents "to sign a document stating that they understood and accepted all aspects of BIMS’ cultural program before [their child's] registration for the following year would be confirmed."
Korenkiewciz found this discriminated against Yasué and Mangel on the basis of their race, ancestry, family status and religion.
There is no dispute between the parties that Dr. Yasué’s, Mr. Mangel’s and Child A’s family status and respective race and ancestry are protected characteristics under s. 8 of the Code. Dr. Yasué is of Japanese ancestry and Mr. Mangel is of Jewish ancestry. Their daughter, Child A, is of mixed Japanese/Jewish ancestry. There is also no dispute that Dr. Yasué and Mr. Mangel’s religion is also a protected characteristic. Dr. Yasué and Mr. Mangel are atheist. The concept of “religion” under the Code includes atheism: Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16 at para. 70; S.L. v. Commission scolaire des Chênes, 2012 SCC 7 at 67 para. 32; and R. v. Big M Drug Mart Ltd.,  1 S.C.R. at pp. 346‐347. [emphasis added]1
The emphasized point, that "religion" in the BC Human Rights Code includes atheism, is important. The three cases cited are all Supreme Court of Canada cases that refer to the Charter of Right's and Freedoms' protection of freedom of religion. The Charter states:
2. Everyone has the following fundamental freedoms:
(a) freedom of conscience and religion...
Whereas, the Code includes religion as one of a number of identifiable characteristics protected from discrimination. "Conscience and religion" is clearly a broader category than religion itself.
The BC Humanist Association's concern, when over 1000 people signed our petition asking the BC Government to include nonreligion as a protected class, was that an adjudicator with the BC Human Rights Tribunal might look to the Code and interpret religion narrowly and exclude protections for atheists. This isn't unreasonable as the protections of the Charter apply only to actions by the government, whereas the Code protects people from discrimination by private businesses. While the protections are similar, there's not guarantee that a Tribunal would import Charter jurisprudence into interpreting the Code.
This decision does give a clear answer: Atheists are protected from discrimination in BC.
Blurring the line between secularism and atheism
Returning to the decision itself, the crux of the complaint was the letter Yasué and Mangel were asked to sign; however, that followed months of debate over the extent to which BIMS promoted religion in the classroom.
Korenkiewciz explores this question, "without deciding the matter", in paragraphs 198 to 205 of the decision. She suggests the dispute is to some extent over "the mere presence of anything rooted in religion in the classroom," and suggests the parents were seeking a classroom absent of anything religious. She writes:
The difficulty with that approach is that it would not leave any space in the classroom for children to learn about cultural traditions that originate from any religious belief that differs from Mr. Mangel and Dr. Yasué’s beliefs. The Supreme Court of Canada has described the inherent issue that arises in respect of these kind of debates as cognitive dissonance, that is, the disconnect that a child may encounter between what they are taught at home and what they are exposed to at school.
She then cites Chamberlain v Surrey School District No 36. In that case, the Surrey School Board sought to exclude books that depicted same sex families from school libraries. The Court found this violated the BC School Act's requirement that schools be strictly secular as the board was clearly trying to push a religious agenda.
Next Korenkiewciz cites the case of S.L. v. Commission scolaire des Chênes where Catholic parents fought unsuccessfully to keep their child out of a neutral ethics and religions class. She draws the comparison directly writing, "Some of the arguments raised by Dr. Yasué and Mr. Mangel in their dealings with BIMS regarding its cultural program reflect the arguments made by parents in S.L."
No parent, including atheists, has the right to keep their child ignorant of the beliefs and practices of their peers. However, I worry that by comparing Yasué and Mangel to the anti-LGBTQ Surrey School Board or the Quebec Catholic parents, that Korenkiewciz blurs the important distinction between secularism and the promotion of atheism.
This concept was set out by the Supreme Court of Canada in Mouvement laïque québécois v. Saguenay.2 That decision, which ruled municipal prayers to be unconstitutional, firmly established the "state's duty of religious neutrality." The majority wrote in their summary:
Barring the municipal council from reciting the prayer would not amount to giving atheism and agnosticism prevalence over religious beliefs. There is a distinction between unbelief and true neutrality. True neutrality presupposes abstention, but it does not amount to a stand favouring one view over another.
It's worth every proponent of secularism reading at least the summary of that decision, but I'll pull out one key section that explains this "duty of religious neutrality":
The state’s duty of religious neutrality results from an evolving interpretation of freedom of conscience and religion. The evolution of Canadian society has given rise to a concept of this neutrality according to which the state must not interfere in religion and beliefs. The state must instead remain neutral in this regard, which means that it must neither favour nor hinder any particular belief, and the same holds true for non-belief.
If you go through the facts of this case, it's this neutrality that Yasué and Mangel were ultimately asking for the school to aspire to in their letters.
What this looks like in practice will inevitably be the subject of significant debate, as was the case at Victoria City Council recently, but it's ultimately how we can best ensure everyone can fully participate in their schools, communities and broader society. As diversity and inclusion expert Alden Habacon told Stephen Quinn on CBC's Early Edition, the question of how to ensure atheists and religious students can coexist in the classroom "is our 21st century dilemma."
Multiculturalism is (probably) not a protected group
Finally, the Human Rights Code includes an exemption for charities dedicated to advancing an identifiable group. In essence, this provision allows charities that support people with disabilities to preferentially hire those individuals or for a church to hire only true believers.
In our submission to the consultation on the BC Human Rights Commission, we argued that this exemption, as written in section 41, is a loophole that "permits arbitrary discrimination and the perpetuation of bigotry." Organizations have been able to avail themselves of this exemption even in cases where the alleged discrimination is disconnected from the purposes of the organization. For example, we've shown that some faith schools require support staff to sign a code of conduct that excludes people on the basis of their sexual orientation or family status.
BIMS argued in its submissions that it promoted the interest and welfare of people characterized by a political belief in multiculturalism. Korenkiewciz ultimately rejected BIMS' argument as (1) multiculturalism is not BIMS' primary purpose; (2) the human rights complaint is not about BIMS' curriculum; (3) multiculturalism, as referred to by BIMS, relates more to culture than political belief; and (4) no evidence was provided that parents at BIMS share multiculturalism a common political belief.
Korenkiewciz leaves open the door for a different group, with stronger evidence, to argue that their collective approach and interpretation of "multiculturalism" should engage the protections of section 41.
Bowen Island is a small community and it's clear from reading the facts laid out in this decision that this battle drove a wedge between residents. It may have been possible to avoid a human rights complaint, and the ultimate $12,000 bill for the Montessori, had the parties communicated more openly and made fewer assumptions about one another's motives. BIMS made a number of accommodations to meet Mangel and Yasué's requests but never informed them. On the other hand, the parents avoided expressing their concerns for a number of months as a sign of conciliation, but this was interpreted as their concerns having been settled. The stress of the situation clearly also took its toll on all of the parties involved, which led to more heated confrontations and everyone comes out looking the worse for it.
The story also highlights the challenges facing atheists and members of other minority groups in small communities. Should a parent in Salmon Arm complain about the religious Christmas carols their students are asked to sing? Does an employee at a Chilliwack office have to worry about their job security if they raise objections to their manager leading prayers in the break room?3 The tensions created by speaking out in these situations can bring out the worst in any of us.
So while it can be easy to point out things we may not like about the way Mangel may have behaved at times, it's the endpoint that matters here. This victory sends the message that organizations cannot push atheists out when they speak up.
- It's custom for Human Rights Tribunal decisions to anonymize the names of minors.
- While the Saguenay decision applies to government actions, Korenkiewciz's decision relies heavily on Charter jurisprudence to interpret the Code.
- These are all hypothetical examples based on emails we have received from people across British Columbia.
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