Law Day: Sudbury's major contribution to Canadian freedom

Thirty-three years ago today the Canadian charter of Rights and Freedoms was signed. But did you know a precedent case with a distinct Sudbury connection is responsible for preserving the cultural freedom the charter aims to protect?

Every year, Law Day, which is recognized on April 16, commemorates this significant event. Since 1982, the charter has helped shape the Canadian legal system and continues to be argued in many cases across the country at all levels of court.

The charter seeks to balance the interests of the individual with those of society by setting out rights and freedoms that are part of our free and democratic society, including certain protections for those accused of a crime, the right to equality, and the freedom of conscience and religion.

I was attending high school in Toronto at the time the charter became law. Religion was not high on my priorities even though since kindergarten the school day began with the recitation of the Lord’s Prayer.

But in high school there was a significant shift in the practice that had become rote to me. We no longer had to stand every morning to listen to the Lord’s Prayer repeated over the public address system.

We still stood for the morning exercises but now we heard spiritual readings and prayers from some of Canada’s aboriginal cultures: Zoroastrianism, the Baha’i faith, Sikhism, Buddhism, various Christian faiths, Judaism, Islam — enough variety to ensure a different reading every single day.

In elementary school, we had been taught Canada is a cultural mosaic, made more beautiful by each unique piece that is added. The change to the morning exercises showed us, in a lovely and poignant way, the great variety of spirituality and religions that make Canada one of the best places in the world to live.

It took just moments a day to send a message of tolerance and understanding.

I was unaware why this shift had occurred, but discovered a Sudbury connection years later when I attended law school. Among the required reading in first-year constitutional law was a case called Zylberberg et al v. Sudbury Board of Education.

Three Sudbury families with children in elementary school objected to the practice of reading the Lord’s Prayer during morning exercises. One family was Jewish, another Muslim and the third preferred a secular approach.

All were concerned about the effect the practice had on non-Christian children. The children’s whose families objected were given the option of stepping outside the classroom into the hall during the morning exercises, but was this the right response?

The Court of Appeal for Ontario considered this question and mentioned the Toronto School Board’s practice when analysing whether the required reading of the Lord’s Prayer violated the charter.

Ontario’s highest court ultimately ruled that the practice of reading the Lord’s Prayer violated the charter’s guarantee of freedom of religion even when the children had the option not to participate.

“The right to be excused from class, or to be exempted from participating, does not overcome the infringement of the charter freedom of conscience and religion by the mandated religious exercises,” the court said in its decision. “On the contrary,
the exemption provision imposes a penalty on pupils from religious minorities who utilize it by stigmatizing them as non-conformists and setting them apart from their fellow students who are members of the dominant religion.”

The Zylberberg decision had repercussions all across Ontario and Canada and is often cited in other jurisdictions and in academic legal literature.

In fact, on April 15 the Supreme Court of Canada cited the Zylberberg case when ruling on a very similar situation in a Quebec municipality, where members of the city council were asked to recite the Lord’s Prayer before meetings.

This practice was once again ruled unconstitutional by the top court in Canada.

The Sudbury decision reminds us all that Canadian law must be interpreted in a manner consistent with the preservation and enhancement of the multicultural heritage of Canadians. The message of tolerance and understanding is part of our constitution and is enshrined in the charter.

It is part of what makes us Canadian.

Grace Alcaide Janicas is treasurer of the Sudbury District Law Association.