Indigenous cultural practices can be reconciled with state neutrality

Last week we published our latest report: Open for Unconstitutional Business, our detailed examination of prayers in Ontario municipalities. In it, we spent ten pages exploring the complexities raised by the growing prevalence of Indigenous territorial acknowledgements, welcoming ceremonies and even blessings at municipal council meetings. Our arguments built upon our past discussions of the issues—notably Decolonizing Legislative Prayers.

How fortuitous then that the BC Court of Appeal should release a significant judgement in the case of Servatius v Alberni School District No 70. This case dealt with Candice Servatius, an Evangelical Christian parent, who argued that Indigenous demonstrations at her children's school violated their religious freedom and the state duty of neutrality.

We wrote about this case when it was first arose in 2016 and again in 2020 when the Supreme Court of BC rejected the claims. I highly encourage you to go back and read both of those articles. As I concluded the last article:

…the ruling represents a clear line demarcating how to teach students about religious and spiritual practices while observing the public school system’s secular nature.

Justice Susan Griffin delivered the unanimous judgement of the Court of Appeal yesterday. It's a lengthy 283 paragraph decision that entirely upholds the lower courts findings on the substance of the case.

The judgement includes nearly 100 paragraphs on "legal framework for consideration of religious freedom," which provides valuable background reading for secularists on the Charter, religious freedom, state neutrality and religion in Canadian schools. It then goes into a detailed discussion of the issues—and facts—of the case, at each point upholding the lower court decisions. Overall, it's a very detailed discussion of how Indigenous practices can be incorporated in school curriculum in a way that is consistent with Canadian jurisprudence on secularism.

I won't go through the entire judgement but encourage you to read it for yourself. It's a relatively accessible read, particularly with the framework it provides. Read the judgement.

The main thrust is that Servatius' appeal attempted to relitigate the facts of the case. However, the bar for appealing a case on the facts is quite high and at no case was she able to justify that the lower court made significant errors. From there, Griffin simply rebuilds the same conclusions as the judge of the Supreme Court.

Further on, the School District also won a cross-appeal on costs. This means that Servatius, and more likely the Justice Centre for Constitutional Freedoms (JCCF) who backed her case, are on the hook for the District's legal costs at both levels of court. Justice Griffin writes:

[256]    In her post-appeal written costs submission, Ms. Servatius disclosed, for the first time, that the JCCF was funding her fees and disbursements in the litigation, as well as agreeing to help her pay any award of costs by agreeing to fundraise for her if costs were awarded against her. Although vaguely described, there is no reason to believe that the JCCF, a frequent litigant, does not have the resources to make good on its promise and so this was in effect an agreement by the JCCF to use its resources to indemnify Ms. Servatius for any award of costs against her.

Griffin writes that "It would have been preferable for Ms. Servatius to be transparent to the judge about the JCCF funding" and that the lower court judge was "clearly influenced by the misleading assertions about Ms. Servatius' capability of weathering the burden of paying a costs award."

For their part, the JCCF continues to deny this, saying "While the Justice Centre has not indemnified Ms. Servatius, the Justice Centre will accept donations to help cover Ms. Servatius costs."

The Guardian summarized the ruling as follows:

A Canadian court has again rejected claims from a mother that Indigenous cultural events at her children’s school infringed on their religious freedoms, ordering her to pay costs after revelations her lawsuit was secretly funded by a Christian activist organization.

The JCCF have claimed in applications to courts to be "independent, non-religious and non-partisan" and to be "the lone secular intervener" when arguing in favour of the rights of the religious. Nevertheless, their list of clients includes many conservative Christian causes, such as opposing COVID vaccination and public health measures; opposing MAID, abortion and LGBTQ+ rights; and defending men's rights activists and the Freedom Convoy.

Beyond those cases, the JCCF has also been the subject of several controversies. Their president, John Carpay, previously compared pride flags to swastikas. He also briefly stepped down from his role after revelations that he hired a private investigator to spy on a judge who was set to rule on a JCCF case. Carpay and the organization were also sued by a former employee for wrongful dismissal in a lawsuit that included allegations of harassment and mission creep. Nevertheless, in 2021 the JCCF reported over $6.5 million in revenue—with a surplus of $2.4 million. They were also sitting on $4.2 million in cash.

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