January 14, 2003

Dear Friends of REAL Women

Please see below our analysis of the decision by the Supreme Court of Canada in theSurreyBC School Board case. This decision has enormous implications for Canadian society.

The majority of the Supreme Court decided, denying 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)

In order to reach its conclusions, therefore, the court had to climb several mountains 1. to obtain jurisdiction for itself to deal with the issue, and 2. to reach its conclusion in support of homosexual material in the schools.

That is, in the first place the court had to create an argument (weak though it was) to assume jurisdiction to overturn the discretionary decision of an elected school board, and had to also “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.

That is, Madame Justice Beverley McLachlin on behalf of the majority read into section 76 of the BC School Act “tolerance and diversity” (which were not mentioned at all) and claimed that pro-homosexual material in the curriculum, created tolerance and diversity.
A conclusion, although creative, certainly was not based on law, but rather on ideology.

An Analysis
Chamberlain Vs. Surrey School Board

Supreme Court Orders Homosexual
Propaganda in BC Schools

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 cannot 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. Positive portrayals are not surprising, since the books were recommended by GALE (Gay and Lesbian Educators of BC). 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 chooseto use them.

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, however, 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” and “non-sectarian” 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.” She finally concluded “tolerance is always age appropriate.” In effect, she stated that no child was too young to be provided with 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 intention of the judges, but not necessarily according to the intent 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. The views of 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, under this ruling, parents who have religious views on opposing homosexuality, may not speak out against it.

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, and would also undermine 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


By C. Gwendolyn Landolt
National Vice President
REAL Women ofCanada