The Supreme Court of Canada has dismissed a couple’s bid to have their children exempted from the Ethics and Religious Culture program that became mandatory in Quebec schools in 2008.

The CCLA’s Nathalie Des Rosiers says the ruling recognizes the difference between religious indoctrination and instruction.

The parents, identified only as S.L. and D.J., argued that the ERC program interfered with their ability to pass on the Catholic faith to their children. They requested to have their children exempt from the program, but the school board refused.

In upholding the Quebec Court of Appeal’s dismissal, the top court said the parents had not proved their right to freedom of religion had been violated.

“Although the sincerity of a person’s belief that a religious practice must be observed is relevant to whether the person’s right to freedom of religion is at issue, an infringement of this right cannot be established without objective proof of an interference with the observance of that practice. It is not enough for a person to say that his or her rights have been infringed. The person must prove the infringement on a balance of probabilities,” the court stated in S.L. v. Commission scolaire des Chênes.

Nathalie Des Rosiers, general counsel of the Canadian Civil Liberties Association, which was an intervener in the case, says the ruling applied the test for freedom of religion in Canada in a slightly different way. “It does recognize the difference between indoctrination and instruction, and supports the view that you can educate children about different religions without violating the freedom of expression of them,” she says.

According to the ruling: “[S.L. and D.J.] claim that the ERC Program is not in fact neutral and that students following the ERC course would be exposed to a form of relativism which would interfere with their ability to pass their faith on to their children. They also maintain that exposing children to various religious facts is confusing for them. The evidence demonstrates, firstly, that the Ministère’s formal purpose does not appear to have been to transmit a philosophy based on relativism or to influence young people’s specific beliefs. Exposing children to a comprehensive presentation of various religions without forcing the children to join them does not constitute an indoctrination of students that would infringe the freedom of religion of L and J.

“Furthermore, the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society. The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligations with regard to public education.”

On behalf of the majority decision, Justice Marie Deschamps wrote: “The societal changes that Canada has undergone since the middle of the last century have brought with them a new social philosophy that favours the recognition of minority rights. The developments in the area of education that have taken place in Quebec and that are at issue in this appeal must be situated within this larger context. Given the religious diversity of present-day Quebec, the state can no longer promote a vision of society in public schools that is based on historically dominant religions.”

Des Rosiers says there was very little evidence about the way the ERC program is taught, but the ruling validates it anyway. “[Justice Louis] LeBel does indicate that on a better factual basis if the course was not taught in a neutral fashion or if it was taught in a way that discredited some religious beliefs, then certainly there would be a violation of freedom of religion.”

It will be interesting to see how the ERC program plays out, she adds. “[The ruling] does recognize that state neutrality must reflect itself in the public education system,” Des Rosiers tells Legal Feeds. “It does state that very clearly — the state cannot give precedence to one religion over another and cannot indoctrinate. So it will be a fine line in terms of how the course will be taught in terms of whether it truly presents a pluralistic view of all religion or whether indeed it fosters indoctrination.”

A Toronto, Ont. woman will appear before the British Columbia Court of Appeal Feb. 14 in a long-running legal battle to overturn a law that stops her from accessing information about her biological father.

Olivia Pratten, a journalist in her 20s, began her legal battle with the B.C. government more than a decade ago after requests to preserve her donor records indefinitely were denied by the now-retired fertility specialist her biological mother saw.

Although she knows her biological father’s blood type, build, and status as a medical student at the time, according to court documents in the case Pratten still does not know her medical history or who exactly her biological father is.

“Like many donor offspring, Ms. Pratten knows almost nothing about the man who provided one-half of her genetic makeup,” wrote B.C. Supreme Court Justice Elaine Adair in Pratten v. British Columbia.

“She has long felt that a part of her identity is missing. She risks inadvertently forming a romantic relationship with a half-sibling. She worries her health, and the health of her future children, could be comprised by the lack of information.”

In B.C., sperm banks are only required to keep sperm donor records for six years, after which they can be shredded or incinerated.

Vancouver, B.C., fertility specialist Gerald Korn, who is now retired but treated Pratten’s biological mother, confirmed Pratten’s donor records had been destroyed in accordance with the practice, court documents show.

Currently, there are no North American jurisdictions that have legislation that forces donors to be identified, unlike in much of Europe, including Sweden.

But, in May 2011, the province came close to changing that, with Adair suspending her decision in favour of Pratten for 15 months in order to allow the B.C. legislature time to redraft the Adoption Act’s compliance with the Charter of Rights.

But, lawyers for the B.C. government are seeking to overturn Adair’s decision instead. This week, they will argue the anonymous sperm-donor law is constitutional. The appeal is scheduled for Feb. 14 and 15.

Adair had ruled previously that the law was unfair because it stopped the offspring of donors, like Pratten, from finding out who their parents are, but allowed adopted children to find out information about their biological parents.

“In my view, the evidence in this case provides strong support for the conclusion that the circumstances of adoptees and those of donor offspring with regard to the need to know and have connection with one’s roots, are closely comparable,” wrote Adair in Pratten.

Still, Tuesday’s appeal isn’t the first time such comparisons have been drawn.

The Supreme Court of Canada ruled in 2010 that federal laws on assisted human reproduction are outside Ottawa’s power to regulate under criminal law.

Although with a thin majority in Attorney General of Canada v. Attorney General of Quebec, the court ultimately sided with Quebec, which has passed extensive regulations on the matter. Those include allowing provinces to control the licensing of doctors and clinics and regulations regarding how they deal with donors and potential parents, eggs, sperm, and embryos, including whether or not they are used for research purposes like genetic therapy.

Still some reproductive technology specialists warn such advances could lead to significant physiological consequences in the meantime, particularly in cases like Pratten’s.

“While our society is becoming increasingly acclimated to the medical advances that have afforded new forms of conception with the aid of reproductive technology, medical studies are simultaneously discovering more and more ways that our physical and mental health are affected by heredity and genetic loadings,” said reproductive technology specialist Dr. Diane Ehrensaft in Pratten.

“For donor offspring with anonymous donors, to be denied access to half their genetic history can not only create medical risk but be a trigger for anxiety and depression, as the offspring suffer duly from barred access to vital medical information and from the awareness that someone is intentionally blocking them from receiving this information, a blockage that could have negative if not life threatening consequences.”

Editor's note: The last paragraph has been amended to fix names.

Noted constitutional lawyer Nathan Whitling is leaving Edmonton’s Parlee McLaws LLP for Fraser Milner Casgrain LLP’s office in the Alberta capital.

Nathan Whitling

Whitling, who’s probably best known for his role in the defence of Guantanamo Bay detainee Omar Khadr, is joining FMC’s litigation team with a focus on constitutional law. “We are delighted to have a lawyer of Nathan Whitling’s calibre joining the FMC team,” said Dennis Picco, the firm’s managing partner in Edmonton. “His broad experience, deep knowledge, and a nuanced understanding of constitutional law will enhance the leadership of FMC’s constitutional practice.”

Whitling acted on a pro bono basis as Canadian co-counsel for Khadr along with Dennis Edney. Their multiple appearances on Khadr’s behalf resulted in several rulings in his favour, including at the Supreme Court of Canada. Last year, for example, the top court ruled that through Canadian officials’ interrogations of Khadr in 2003-04, “Canada actively participated in a process contrary to Canada’s international human rights obligations and contributed to Mr. Khadr’s ongoing detention so as to deprive him of his right to liberty and security of the person.”

In addition to such high-profile cases, Whitling largely focuses on commercial litigation, representing companies involved in commercial and contractual disputes as well as business torts. He also acts for First Nations in aboriginal and treaty rights matters and works on other human rights cases.

“FMC is one of the leading law firms in Edmonton and has a particular focus on doing pro bono work. . . . That’s always been something I’ve been interested in doing as a sideline,” Whitling tells Legal Feeds.

Whitling notes FMC has an active constitutional law practice in Alberta including partner Thomas Wakeling. In one major recent constitutional law case FMC partner Brian Foster and litigation counsel David Tavender acted for the Alberta government regarding the planned national securities regulator, he says.