FACTUM OF THE INTERVENER
THE B.C. CIVIL LIBERTIES ASSOCIATION

Court File No. 28654

IN THE SUPREME COURT OF CANADA
(On Appeal from the Court of Appeal for the Province of British Columbia)

BETWEEN:

JAMES CHAMBERLAIN, MURRAY WARREN, DIANE WILLCOTT, BLAINE COOK, by his Guardian Ad Litem, SUE COOK and ROSAMUND ELWIN APPELLANTS

(Petitioners)

AND:

THE BOARD OF TRUSTEES OF SCHOOL DISTRICT #36 (SURREY)

(Respondent)

AND:

EGALE CANADA INC., ELEMENTARY TEACHERS' FEDERATION OF ONTARIO, BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION, THE BOARD OF TRUSTEES OF SCHOOL DISTRICT NO. 34 (ABBOTSFORD), CANADIAN CIVIL LIBERTIES ASSOCIATION, FAMILIES IN PARTNERSHIP, THE EVANGELICAL FELLOWSHIP OF CANADA, THE ARCHDIOCESE OF VANCOUVER, THE CATHOLIC CIVIL RIGHTS LEAGUE AND THE CANADIAN ALLIANCE FOR SOCIAL JUSTICE AND FAMILY VALUES ASSOCIATION

(Intervenors)

PART 1
STATEMENT OF FACTS

1. Both the Appellants and the Respondent Board in this appeal make extensive reference in their written argument to the evidence. The factual record is voluminous and complex, and the resolution of the legal issues in this appeal is, to a significant extent, dependent on findings of fact. The Chambers Judge, Saunders J. (as she then was), was in the best position to review the evidence and had the benefit of extensive argument from the parties relating to it. Consequently, it is respectfully submitted that the factual findings of the Chambers Judge should, insofar as they exist, be accorded the fullest deference and attention absent a reviewable error, which has not been alleged. Conversely, little attention should be paid to contested factual assertions of either party that are not based on findings by the Chambers Judge.
Stein v. Kathy K., [1976] 2 S.C.R. 802 at 808 Becker Milk Co. v. Interstate Brands Co. (2000), 5 C.P.R. (4th) 573 (F.C.A.) at 575; Jones v. The Queen, [1986] 2 S.C.R. 284 at 295-6. Important Factual Determinations of the Chambers Judge
2. The Career and Personal Planning curriculum prescribed by the British Columbia Ministry of Education, Skills and Training includes a mandatory "Personal Planning" component aimed at students from kindergarten to grade 7 ("K to 7"). The section of this Personal Planning curriculum entitled "Family Life Education" requires, as a "learning outcome", that students in kindergarten and grade 1, inter alia, "identify a variety of models for family organization" and to "develop [an] understanding of the role of family and capacity for responsible decision-making in their personal relations."
Reasons for Judgment, Saunders J. ("Chambers Judgment"), para. 40, A.R. Vol. XVII, pp. 3061-2.
3. The Chambers Judge noted that the K to 7 Personal Planning curriculum does not establish the specific educational resource materials to be used, including any resources respecting same-sex relationships. In the absence of resources approved by the Ministry, school boards are empowered to approve educational resource materials under their own locally approved selection and evaluation criteria.
Chambers Judgment, para. 40, A.R. Vol. XVII, pp. 3061-2.
4. The Chambers Judge made an express finding of fact that the three books at issue in this appeal—Asha's Mums, Belinda's Bouquet, and One Dad, Two Dads, Brown Dads, Blue Dads (the "Books")—do not raise questions of sexuality or sexual practices.
Chambers Judgment, para. 96, A.R. Vol. XVII, p. 3085.
5. The Chambers Judge found that the message of the Books was that there are alternative family models, including models with same-sex parents, that are peopled by caring, thoughtful, intelligent, loving people who give the same warmth and love and respect that other families do.
Chambers Judgment, para. 98, A.R. Vol. XVII, p. 3085.
6. The Chambers Judge concluded that the Books were age appropriate for kindergarten and grade 1 children, and stated that the issue was not one of harm to children.
Chambers Judgment, para. 105, A.R., Vol. XVII, p. 3087.
7. The request for approval of the Books was first referred to the administrative staff of the Surrey School District. Upon review, the Books were seen as controversial and likely to cause parental concern. Therefore, the staff concluded that the decision to approve the Books should come from the Respondent Board, a body that was elected by the community.
Chambers Judgment, paras. 45- 6, 51, A.R. Vol. XVII, pp. 3063, 3065.
8. The Chambers Judge reviewed the affidavit evidence from parents and from several religious leaders submitted by the Respondent Board to the effect that the content and use of the Books in the classroom was in conflict with their religious beliefs on the subject of same-sex relationships. For instance, she noted that a Roman Catholic priest deposed that the Books "create an irreconcilable conflict between the views stated in the Books regarding the topic of homosexuality, and the doctrine of the church." A representative of the B.C. Muslim Association deposed that the notion that homosexuality was acceptable and morally equal to heterosexuality contradicted the teachings of the Qur'an and the beliefs of Islam. The Chambers Judge also noted that there was uncontested evidence to the effect that some religious sects or denominations did not consider homosexuality to be morally unacceptable or any less deserving of respect than traditional sexual relationships.
Chambers Judgment, paras. 89 and 92, A.R. Vol. XVII, pp. 3080-3. Affidavit of Rev. Brian Kiely, A.R. Vol. IV, pp. 732-33; Affidavit of Rabbi Martin Cohen, A.R. Vol. XIII, pp. 2292-95; Affidavit of David Crawley, A.R. Vol. XIII, pp. 2300-06; Affidavit of Rabbi Victor Reinstein, A.R. Vol. XV, pp. 2768-70; Affidavit of Rev. Robert Smith, A.R. Vol. XV, pp. 2832-34.
9. On the basis of the evidence reviewed, the Chambers Judge concluded that some of the Trustees were motivated to a significant degree by a concern that parents and others in the school district would consider the Books incompatible or inconsistent with their religious views on the subject of same-sex relationships. She concluded that, taken as a whole, the Respondent Board gave significant weight to personal or parental concerns that the Books would conflict with religious views, and therefore made a decision significantly influenced by religious considerations, contrary to Section 76 ("Section 76") of the ("School Act").
Appendix 4
Chambers Judgment, paras. 93-95, A.R. Vol. XVII, pp. 3084-5.
Findings The Chambers Judge Did Not Make

10. The Chambers Judge made no finding to support the conclusion that Mr. Chamberlain intended to use the Books for the purpose of: (a) teaching about sexual orientation or sexual practices; (b) teaching against the religious and moral beliefs of any parents in the Surrey community; or (c) pursuing "a broad agenda that was bound to be confrontational at the adult level". Court of Appeal Judgment, paras. 55 to 59, A.R. Vol. XVII, pp. 3134-7; Factum of the Respondent Board, para. 13.

Part II
ISSUES ON APPEAL

11. The British Columbia Civil Liberties Association (the "BCCLA") proposes to deal only with the second issue raised by the Appellants:
"Does the proper interpretation of the School Act preclude a School Board from refusing to approve books which include positive representations of same sex parents on the basis that affirming the value of such families would conflict with the religious views of some parents?"
Appellants' Factum, p. 6.
12. In so doing, the BCCLA will address the first issue stated by the Respondent Board as follows:
"Does the Resolution contravene Section 76 of the School Act?"
Respondent's Factum, p. 9, para. 30.


Part III
ARGUMENT

A. Introduction

13. This appeal provides the Court with the opportunity to provide important guidelines on the conduct of one of the fundamental institutions in our society: the public school system. The tension between secular and religious visions of morality and the role of both visions in the education of our children raises complex and pressing questions. The BCCLA appreciates this opportunity to express its perspective on this significant debate.

14. Because this submission addresses only the question of what the law is, as found in the School Act, it will not address the larger question of what the law ought to be. Fortunately, in the BCCLA's respectful submission, this is a case where what the law is and ought to be do not diverge. The School Act resolves the tension between the secular and religious in the public school system in exactly the way the BCCLA believes it should. The essential proposition underpinning this submission is that a far-sighted 19th Century legislature in British Columbia anticipated the danger of permitting the religious beliefs of the many or the few to determine how to conduct such a fundamental institution of society as the public school system. In consequence, British Columbia enacted a School Act requiring the separation of church and state in the public school system, so as to respect and enhance the dignity of the individual by permitting students to develop free of religious direction from the state. The balance of this factum seeks to elaborate on this proposition.

15. The BCCLA respectfully submits that the core objectives of the School Act have remained unchanged since shortly after British Columbia entered Confederation. These objectives are now captured in the School Act's preamble which provides that the purposes of the British Columbia school system is:
"to enable all learners to develop their individual potential and to acquire the knowledge, skills and attitudes needed to contribute to a healthy, democratic and pluralistic society...."
Appendix 4
16. The objectives of the School Act are entirely compatible with this Court's acceptance of the conclusion of the U.S. Supreme Court that education is "the very foundation of good citizenship."
Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) at 493, cited in Jones v. The Queen, [1986] 2 S.C.R. 284 at 296-297.
17. More recent Canadian decisions have elaborated this general proposition by emphasizing the importance of an inclusive school system, premised on notions of impartiality and tolerance.
Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825 at 856-57; 872-74.
Trinity Western University v. College of Teachers (British Columbia), [2001] 1 S.C.R. 772 at 800-801.
18. The manner in which the public school system is to be conducted in British Columbia in order to meet this important objective is elaborated in Section 76.

19. It is respectfully submitted that in Section 76, the legislature clearly drew a bright line between the secular education that every citizen requires to be a fully contributing member of society and the individual religious beliefs that every member of society should be free to develop and practice according to his/her own conscience. The result in British Columbia is that the public school system run by the state is to be kept separate from any and all churches. This legislative intent is manifest in the words employed in Section 76, read in their entire context, in light of the purpose and objective of the School Act, and in light of the Charter values which now inform the interpretation of all Canadian legislation. 20. Contrary to the conclusion of Mackenzie J.A., and the criticisms of the Reasons of the Chambers Judge found in some academic commentary, legislation that separates the place of church and state in the public school system neither deprives the religiously informed conscience from participating in the public square, nor requires schools to teach a godless secularism. Rather, it requires schools to inculcate only those values which have become part of the moral fabric of our civil society. Iain T. Benson, "Notes Towards a (Re) definition of the 'Secular'", (2000) 33 U.B.C. Law Review 519 at 536-537; Court of Appeal Judgment, paras. 28, 31, A.R. Vol. XVII, pp. 3118-9.

B. Principles of Interpretation

1. The Key Words of the Statute

21. Section 76(1) provides that all schools must be "conducted on strictly secular and non-sectarian principles", and Section 76(2) stipulates that " the highest moral values must be inculcated but no religious dogma or creed is to be taught...". It is these words that are central to this appeal. School Act, s. 76(1), (2).

22. In interpreting the language found in Section 76(1), the words "conducted", "strictly" and "secular" are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the School Act and the intention of the legislature.
Re Rizzo & Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at 40-41.
23. The Oxford English Dictionary defines the word "conduct" as meaning "to direct, manage, carry (a transaction, process, business, institution, legal case etc.)". Oxford English Dictionary, vol. XIV, 2nd ed. (Oxford: Clarendon Press, 1989) at 691.

24. The Oxford English Dictionary, supra, at 900 defines the term "strictly" as follows:
"With reference to commands, obligation, etc.: Rigorously, stringently; with insistence on exact performance, execution, or obedience."
25. The Oxford English Dictionary, supra, at 848 defines the word "secular" in this way: "Belonging to the world and its affairs as distinguished from the church and religion; civil, lay, temporal. Chiefly used as a negative term, with the meaning non-ecclesiastical, non-religious, or non-sacred.... Of education, instruction; Relating to non-religious subjects. (In modern use often implying the exclusion of religious teaching from education, or from the education provided at the public expense.) Of a school: That gives secular education."

26. Taken together, the words employed in Section 76(1) leave no doubt as to the legislature's intent. The public school system is to concern itself exclusively with teaching values which stand independently of their origin and maintain the allegiance of the whole of society, and leave parents with the responsibility of reconciling the realities of that secular world with their individual conception of religious values.
Court of Appeal Judgment, para. 35, A.R. Vol. XVII, p. 3115.
2. The Context of the Legislation

27. It is respectfully submitted that the Respondent Board and the Court of Appeal drew conclusions that cannot be supported by the statutory history of Section 76 found at Schedules 2 to 7 of the Respondent Board's factum.

28. After conducting a review of the legislative evolution of the Colonial laws and the early legislation of British Columbia, Mackenzie J.A. concluded that the word "secular" was added in the 1876 amendment to "reinforce the non-denominational character of the public schools". As observed by the Appellants in paragraph 121 of their factum, this conclusion has the effect of removing any meaning from the word "secular".
An Act to Amend and Consolidate the Public Schools Act S.B.C. 1876 c. 2 s. 41; (Appendix 1)
Court of Appeal Judgment, para. 26, A.R. Vol. XVII, p. 3115.
29. Mackenzie J.A. reasoned that the introduction of a provision permitting the recitation of the Lord's Prayer 15 years later, in 1891, suggests that the intent of the secular requirement was limited to sectarian or denominational concerns rather than "morality associated with non-denominational Christianity." Public School Act, 1891, S.B.C. 1891, c.40, s.62; (Appendix 2) Court of Appeal Judgment, para. 26, A.R. Vol. XVII, p. 3115. 30. To the contrary, subsequent to 1891, the legislature expressly recognized what was implied by the 1891 amendment relating to the Lord's Prayer—inclusion of the prayer was manifestly an exception to the general requirement for a secular school system and therefore required express authorization in the Statute. In 1944, section 160 of the School Act was amended to permit the reading of a passage from scripture followed by the recitation of the Lord's Prayer "but otherwise the schools shall be conducted on strictly secular and non-sectarian principles". With the words "but otherwise", the legislature clearly was interpreting the words "strictly secular" in the full sense rejected by Mackenzie J.A.
Public Schools Act, R.S.B.C. 1936, c. 253, as am. by S.B.C. 1944, c. 45, s. 16. (Appendix 3)
31. If the ultimate expression of non-denominational Christianity, the Lord's Prayer, is non-secular and thus requires an express exception from Section 76 to be included in the public schools, it then must follow that religiously determined attitudes towards sexual orientation are also non-secular and, therefore, not "strictly secular". Moreover, because only some, but not all, Judeo-Christian denominations disapprove of homosexuality, it is clearly a sectarian concern. To determine what may or may not be taught based on the views of those denominations would be to introduce those denominations' dogma or creed into the school system and therefore would be sectarian. Statement of Facts, para. 8.

32. Moreover, the evolution of the subordinate legislation to the statutes of 1869 to 1876 support the view that the Public School Act and its predecessors were intended to address morality associated with non-denominational Christianity, as well as sectarian or denominational concerns. Specifically, the 1870 regulation required teachers to impress the principles and morals of the Christian religion on students. In sharp contrast, the 1872 and 1876 regulations replaced this duty with an articulation of the secularized values that the minister thought appropriate to teach. The government of the day clearly recognized that if the government wished to give direction on the moral values to be inculcated by the schools, it ought to identify those values directly. The legislature codified this sentiment when they inserted the words "strictly secular" into the School Act in 1876.
Appendix 5-7.
33. The word "secular" must be read to transcend any sectarian religious divisions and requires a distinction to be made between the spiritual and the non-spiritual in the conduct of the public schools. The need for this distinction has been acknowledged by this Court in the context of the 19th Century transition from education conducted primarily by the churches or parents to a state run educational system (Jones, supra, at 296). However, the effort to separate church from state has its origins following the religious wars of the 17th Century in Europe. Separation can be seen as a method of compensating for the destabilizing consequences of religious pluralism. Contemporary liberal philosophers have developed the underlying notion of decoupling the private sphere of personal beliefs and the public sphere of communal conduct by developing a notion of liberal or justificatory neutrality, which confronts the fact of pluralism in a manner that treats both religious and non-religious ideals symmetrically and fairly.

34. Leading post-war libertarian and egalitarian liberal political philosophers, include John Rawls, Ronald Dworkin and Robert Nozick. Their work is usefully synthesized by Will Kymlicka. These philosophers have argued that government action is confined to superintending and enforcing the fair distribution of fundamental means (basic rights, freedoms, and resources) that are required for the pursuit of any comprehensive vision of the good but that do not themselves constitute such a comprehensive vision. This approach contemplates the state fostering the civic virtues that are necessary to permit the fair distribution of fundamental means, for example, tolerance, civility, respect, understanding, cooperation, and related moral values and virtues that are required for their support. It prevents the state, too, from using its authority, or having its authority co-opted, specifically to promote or favour one set of permissible comprehensive ideals of the good or metaphysical doctrines over others, be they religious or non-religious ideals or doctrines.
Will Kymlicka, "Liberal Individualism and Liberal Neutrality" (1989) 99 Ethics 883;
Robert Nozick, Anarchy, State and Utopia (New York: Basic Books, 1974) at 27-35, 272-73;
Ronald Dworkin, "Liberalism" in A Matter of Principle (Cambridge, Mass: Harvard University Press, 1985) at 181-204;
John Rawls, "Lecture V" in Political Liberalism (New York: Columbia University Press, 1993), at 190-1.
35. It is respectfully submitted that the Charter implicitly recognizes the wisdom of the state refraining from sponsoring a particular comprehensive conception of the good life. By defining the fundamental freedoms of individuals in Section 2, and providing for their protection in Sections 3-14, the Charter ensures that the conditions exist to permit each individual to develop and pursue his or her individual comprehensive conception of the good life. By prohibiting all forms of discrimination except those intended to foster equality, Section 15 of the Charter seeks to ensure the fair distribution of the benefits and burdens of the state's participation in human affairs.
Andrews v. Law Society of B.C., [1989] 1 S.C.R. 143 at 165.
36. The limited role of the state contemplated in the approach advocated by Rawls et al. helps explain and reconcile the intention of Section 76. On the one hand, schools may not be conducted so as to put forward any comprehensive conception of the good life. On the other hand, they must inculcate the highest morality—i.e., respect and tolerance for the personal characteristics of all individuals who make up our multi-cultural, pluralistic society and virtues necessary for responsible citizenship. The next section of this argument seeks to demonstrate the role of the Charter in interpreting Section 76.

3. Charter Values

37. Cory J., speaking for the Court in Hill v. Church of Scientology of Toronto, stated that:
"The Charter represents a restatement of the fundamental values which guide and shape our democratic society and our legal system."
Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at 1169.
38. The Supreme Court of Canada in Hills v. A.G. (Canada) has ruled that legislation must be interpreted in a manner that is consistent with Charter values.
Hills v. A.G. (Canada), [1988] 1 S.C.R. 512 at 558;
see also Cooper v. Canada (H.R.C.), [1996] 3 S.C.R. 854 at 877.
39. The values underlying the Charter were expressed by Dickson J. (as he then was) in R. v. Big M Drug Mart Ltd.:
"A truly free society is one which can accommodate a wide variety of beliefs, diversity of tastes and pursuits, customs and codes of conduct. A free society is one which aims at equality with respect to the enjoyment of fundamental freedoms and I say this without any reliance upon s. 15 of the Charter. Freedom must surely be founded in respect for the inherent dignity and the inviolable rights of the human person. "
R. v. Big M Drug Mart, [1985] 1 S.C.R. 295 at 336.
40. Section 15 extends this general theme of accommodation to require tolerance of the diverse personal characteristics that make up the human person. One aspect of every individual's personal characteristics that contributes to their uniqueness and dignity is their sexual orientation.
Egan v. Canada, [1995] 2 S.C.R. 513 at 528-29;
Vriend v. Alberta, [1998] 2 S.C.R. 493 at 546;
Trinity Western University v. College of Teachers (British Columbia), supra at 808-9.
41. Thus, in light of the relevant Charter values, Section 76 should be read to empower the Respondent Board with the authority to inculcate moral values that foster respect for the inherent dignity and the inviolate rights of the human person, including the right of all individuals to their personal sexual orientation. The Respondent Board was not empowered with the authority to inculcate moral values based on a particular comprehensive conception of the good life that denigrate from the dignity of some individuals based on the personal characteristics of those individuals.

42. By requiring moral approbation to accompany the depiction of certain family structures, if they are to be depicted at all, a school board would be depriving members of such families of a key part of their place in our multi-cultural, pluralistic society. If Section 76 clearly gave school boards authority to do this, a Charter analysis would have to be performed to determine if the section was reasonably justified in our democratic society. However, in this case no such exercise is required because there is a plausible interpretation of Section 76 which does not require it to invest the school board with the jurisdiction to pass resolutions that conflict with the inherent dignity and the inexorable rights of all persons and families whose children attend public schools. Where two interpretations are available, the one compatible with Charter values should be preferred.
Hills, supra, at 558.
43. The BCCLA respectfully requests this Court to adopt an interpretation of Section 76 that mandates a school system that leaves each individual (student or parent) to develop their own beliefs in the religious or metaphysical sphere as they see fit, while respecting the rights of others to develop and live theirs within the strictures imposed by civil society to permit achievement of societal goals. This interpretation would be true to the words of the section read in the context of the School Act as a whole, including its objects and purposes, and would also be true to the Charter values on which our civil society is based.

C. General Application of Section 76

44. The BCCLA respectfully agrees with Mackenzie J.A. when he notes that Section 76(2) mandates that the morality that must be taught in the schools "must stand independently of its origins to maintain the allegiance of the whole of society, including the plurality of religious adherents and those who are not religious."
Court of Appeal Judgment, para. 35, A.R. Vol. XVII, pp. 3120-1.
45. However, the BCCLA does not agree with his conclusion that the interpretation urged here "would raise immense practical difficulties" on the basis that it would not be possible to distinguish a moral position from a conscience influenced by religion. With great respect, this observation misconceives the nature of the exercise and ignores over 200 years of U.S. jurisprudence that has successfully carried out just this sort of analysis.
Court of Appeal Judgment, para. 29, A.R. XVII, pp. 3117-8.
46. Mackenzie J.A. misconceived the nature of the exercise because he failed to appreciate the difference between "secularism" and "secularization". The BCCLA accepts that requiring the school system to be based exclusively on secularism might "banish religion from the public square", but does not argue that the School Act contains that requirement. Rather, the School Act requires that moral teaching, whether derived from traditional religion, humanism or some other form of secularism, must have become part of the moral fabric of our civil society if it is to be inculcated in our schools. The BCCLA refers to this process as secularization.

47. Secularization is a process. Secularism is a substantive set of beliefs that stands in place of theologically based religions. The School Act is intended to require secularization but prohibits the teaching of secularism to the same extent it prohibits the teaching of religious belief. The School Act requires moral values to be secularized before being taught so as to maintain the appropriate separation of comprehensive views of the good life, whatever their origin, from the administration of the public school system. It does not require that ideas which are secularized be tenets of secularism or any other particular set of beliefs. Indeed, the School Act does not take any position on the source of the ideas that become secularized.

48. Harvey Cox, an American theologian, makes the distinction between secularism and secularization clear by tracing the origins of the word "secular" and explaining that secularization was originally a process by which certain responsibilities were passed from ecclesiastical to political authorities. The School Act requires values to have passed from church sponsorship to state sponsorship before they may be inculcated in the public schools.
Harvey Cox, The Secular City (New York: MacMillan Publishing Company, 1965) at 16-18.
49. The distinction between secularism and secularization renders the academic commentary relating to secularism relied upon by Mackenzie J.A. and the submission of the Respondent Board at paras. 40 and 41, largely irrelevant to this Appeal.
Court of Appeal Judgment, paras. 29-31, A.R. XVII, pp. 3117-9;
Respondent's Factum, paras 40, 41.
50. It is respectfully submitted that, because of his confusion between secularism and secularization, Mackenzie J.A. incorrectly concluded it was necessary to ignore the clear intent of the legislature in order to render Section 76 consistent with the Charter. As a result, he failed to grapple with the challenging but demonstrably achievable responsibility of distinguishing between the need to inculcate moral values with the need to avoid promulgating religious ones. The objectives are not mutually exclusive and need not result in placing the religiously informed conscience at a disability.

51. The approach proposed by the BCCLA finds support in R. v. Edwards Books. There, the Court held that provincial Sunday closing legislation was intra vires because its purpose was not to impose religious observance on non-Christians, but rather to further the secular purpose of providing uniform holidays to retail workers. The analysis performed there is analogous to that which is required to assess the Resolution here in the context of Section 76.
R. v. Edwards Books, [1986] 2 S.C.R. 713 at 742-62.
52. In assessing whether the Sunday closing legislation had a secular purpose in Edwards Books, supra, Dickson C.J.C. made extensive reference to U.S. jurisprudence considering the distinction between the secular and the religious. The anti-establishment clause in the First Amendment of the U.S. Constitution prohibits laws in the U.S. that establish a religion. Judicial interpretation of that clause has made clear that laws must have a secular purpose to be justified. The moral value which lies behind the law might have religious origins but the law itself must be passed to further secular objectives.
Abington School District v. Schempp, 10 L.Ed. 2d 844 (1963) at 858;
Lemon v Kurtzman 29 L.Ed. 2d 745 (1971) at 755.
53. A number of U.S. cases have grappled with issues very similar to those before the Court here in the context of applying the First Amendment. In particular, circumstances where the knowledge students might require to function in civil society could offend some religions has been considered as a basis upon which to withhold that information from those students. U.S. Courts have concluded that giving offence to some religions cannot properly be the basis for withholding information. They have observed that for some religious people "every teaching that goes beyond the 'three R's' is inculcating religious ideas' and therefore "any value laden reading curriculum that did not affirm the truth of their beliefs would offend their religious convictions". While persons of those religions are entitled to hold those views, they are not entitled to have the public school system run in a way that is hostage to them. Pragmatically, the imposition of a duty on public education to avoid giving offence to each individual's idiosyncratic comprehensive views of the good life would cripple the functioning of the public education system.
Mozert v. Hawkins County of Education 827 F.2d 1058 (6th Cir. 1987) at 1064-65; 1069;

Epperson v. Arkansas, 21 L.Ed. 2d 228 (1968) at 236;

Abington, supra at 858.
54. Based on the reasoning set out above it is respectfully submitted that:
a. pursuant to Section 76(2), the Courts can and should look to the purpose behind the actions of the school board when conducting the schools to determine if their objective is to inculcate the values of our civil society or to inculcate religious belief;

b. pursuant to Section 76(1), the Courts should strike down school board resolutions intended to further religious objectives or protect the sensibilities of particular religions except as necessary to accommodate the rights of individuals pursuant to Section 2(a) of the Charter.


D. Specific Application of Section 76 on the Facts of this Case

55. It is respectfully submitted that to determine whether the Resolution is valid the Court should:
(a) determine the purpose of the Resolution;
(b) determine the effect of the Resolution; and
(c) determine whether the purpose and effect reflect a bona fide attempt to inculcate moral values that are mandated by the Charter or are consistent with the Charter and form part of the moral fabric of our civil society generally.

56. The Learned Chambers Judge concluded that the Respondent Board's purpose in passing the Resolution was to avoid offending the religiously informed conscience of some parents within the school district by depicting same sex families in a morally acceptable way.
Statement of Facts, para. 9.
57. The Learned Chambers Judge did not reach an express finding on the effect of the Resolution. However, it seems inescapable from the factual determinations that she did conclude that the effect of the Resolution was to prohibit certain children being afforded the opportunity to have their family structure depicted in the public school system. It also seems inescapable that the loss of this opportunity would deprive those children of one of the desired learning outcomes under the Personal Planning Curriculum relating to Family Life Education.
Statement of Facts, para. 2.
58. It is respectfully submitted that, if the purpose and effect of the Resolution are accurately set out in the preceding two paragraphs, it must follow that the Respondent Board was not making a bona fide attempt to conduct the school system on a strictly secular basis. Nor was it trying to inculcate the moral values of our secular society. To the contrary, it was prepared to sacrifice the values of tolerance and respect for the dignity of all human persons to protect the sensibilities of certain parents. It is important to note that the sensibilities of children were not in issue since, as Mackenzie J.A. concluded, the inferences drawn from the Books might be controversial for some parents but not students. The sensibilities the Board sought to protect arose from religious conviction, not from any secular concern.
Court of Appeal Judgment, para. 41, A.R. Vol. XVII at pp. 3124-5.
59. The Respondent Board argues that its secular purpose was to avoid creating dissonance between home and school and thereby avoid a negative impact on parental education of very young students with respect to religious values. The Chambers Judge found, and the Respondent's Factum in this Court confirms, that the dissonance that the Board sought to avoid was mainly between the morally neutral depiction of same sex families in the Books and the morally disapproving posture adopted by many religions.
Respondent's Factum, paras. 41, 42 and 44;
Chambers Judgment, paras. 93, 104, A.R. Vol. XVII, pp. 3084-7.
60. The BCCLA respectfully submits that in the face of Section 76, religious beliefs, however strongly held, cannot be employed to require the public school system to depict the world and the human condition within it in a way which conforms with the comprehensive conceptions of the good life as perceived by particular religions or faiths. The public school system has a positive duty imposed by Section 76(2) to inculcate the moral values of society. Those values include tolerance, respect and compassion. They do not include moral approbation of same sex parents. For the reasons expressed in Mozert, supra, the Respondent Board cannot shirk its obligations under Section 76 because of a wish to avoid giving offence to religion-based sensibilities.

61. The danger of allowing parental sensibilities of a religious nature to determine what may or may not be depicted in public schools is made strikingly apparent by consideration of some analogies. In the eyes of some religious faiths, the faces of women should be obscured in public places. In the eyes of some other faiths, certain races ought to be kept separate from other races. Could it follow that the administration of a public school district in British Columbia could refuse to permit material depicting women in public without veils or mixed race marriages? In the respectful submission of the BCCLA, to pose this question is to answer it.

62. The situation at bar does not give rise to the balancing exercise required where a school board or other government authority feels the need to limit the extent to which an individual can practice his or her religion. Thus, where a Sikh student wishes to wear a kirpan to school, a school would need to balance safety concerns with individual religious rights. Here, no balancing is required because the school is taking no steps to interfere with the practice of religion or with parents' rights to educate their children as they think best. 63. It is respectfully submitted that if the Court reaches the same conclusions with respect to the purpose of the Resolution as have been set out here, the Resolution must be found to be ultra vires the School Act. Conversely, it would only be if the Court concludes, based on the factual determinations of the Chambers Judge, that the purpose of the Resolution was to further a strictly secular concern and that the Resolution sought to inculcate moral values that are mandated by the Charter or are an integral part of the moral fabric of our civil society and are consistent with the Charter, that the Court should uphold the validity of the Resolution.

PART IV
NATURE OF ORDER SOUGHT

64. The BCCLA respectfully asks that:
(a) the Order of the British Columbia Court of Appeal dated September 20, 2000 be set aside;

(b) paragraph 3 of the Order of the Learned Chambers Judge dated the 16th day of December, 1998, quashing the Resolution of the Respondent enacted on April 24, 1997, be restored; and

(c) the subject matter of the April 24, 1997 Resolution be remitted to the Respondent for reconsideration in accordance with the reasons for judgement of this Honourable Court.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Chris W. Sanderson, Q.C.
Keith B. Bergner
Christopher E. Gora

COUNSEL FOR THE INTERVENER, THE BRITISH COLUMBIA CIVIL LIBERTIES ASSOCIATION
Vancouver, British Columbia
March 22, 2002