Volume II, Issue I

September 2005

 Queen's Human Rights Bulletin

 Religious Discrimination

The Fancy Case

• Index • The Dhillen Case • The Pannu Case • The Nijjar Case • The O'Malley Case • The Roosma Case • The Moore Case • The Kurvits Case • The Schroen Case • The Caldwell Case • The Fancy Case • The Brockie Case • The Ross Case • The Trinity Case • Resources • Printer Friendly Version •

Facts             

In December 1993, a group of parents filed a complaint of religious discrimination against the Saskatchewan Board of Education. They claimed that the Board's policy and practice respecting the recitation of Lord's Prayer and Biblical Passages discriminated against non Christian students, and therefore violated sections 4 and 13 of Saskatchewan Human Rights Code. The Board's position was that this form of religious discrimination was constitutionally excused by s. 137 of the 1901 School Ordinance, which allows public schools to provide religious instruction in the last half hour of the school day, with the exception of the Lord's Prayer, which may be used to open the school day if so directed by the Board. However, according to Board policy and student testimony, the Lord's Prayer was often used to open school assemblies that did not occur at the beginning of the school day; and Biblical readings were often used at times other than the last half hour of school.  The Board of Education argued that the Board of Inquiry had no jurisdiction to hear this case, by referring to a precedent set in Cooper v. Canada (1996) where the Supreme Court ruled that the Canadian Human Rights Commission could not rule on the discriminatory nature of its own Act. (Fancy v Saskatoon School Div. No 13 (1999), 35 C.H.R.R. D/9). 

Questions

1. Did the Board of Inquiry have the jurisdiction to hear this case?

2. Did the recitation of the Lord's Prayer and Biblical passage constitute discrimination ?

3. Was the Board of Education constitutionally excused from the alleged discrimination ?

Rulings

1. Yes

2. Yes

3. No  

Reasoning

1. In Cooper v. Canada (1996), the Supreme Court ruled that a Human Rights Commission was not authorized to establish the discriminatory nature of the very Act under which it operated. Unlike that case, in Fancy v. Saskatoon School Division (1999), the Board of Inquiry was not questioning the validity of provisions from the Saskatchewan Human Rights Code, but rather was simply testing whether the Saskatchewan Act provides an exemption from the Code. Comparing Cooper to Fancy was like comparing apples to oranges. There was no analogical connection between the two.

2. Reciting the Lord's Prayer and Biblical passages is discriminatory because it privileges the majority of students, who are Christian, while alienating the minority, who are not Christian.

3. The Board of Education would have been constitutionally excused if it had acted in strict accordance with the Ordinance Act, by directing schools to open the school day with the Lord's Prayer and by restricting Biblical readings to the last half hour of the day.  Instead of giving direction, however, the Board delegated its constitutional authority to unelected staff who were advised that the Lord's Prayer could be recited both in the classroom (at the beginning of the day) and in the assembly (later in the day) and that the Bible could be cited at the beginning of the day. In doing so, it had committed three constitutional infractions 1) failure to give direction 2) sanctioning the Lord's Prayer at assemblies other than at the beginning of the day 3) sanctioning Biblical Readings in the classroom other than at the end of the day.   

Further information on Provision of Services: Policy on Creed and the Accommodation of Religious Observances, s.1