Appeal court rules ceremony was not religious, notes support for mother from advocacy group
The Court of Appeal for British Columbia has ruled against a Port Alberni mother who claimed two school events about Indigenous culture violated her children’s religious freedoms. The court of appeal panel of judges also ordered Candace Servatius to pay costs, contrary to what a trial judge had ruled in 2020 when he dismissed the case.
Servatius launched the suit, Servatius v. Alberni School District No. 70, in 2016 after an elder performed a smudging demonstration at John Howitt Elementary School in Port Alberni. At a later school assembly, a hoop dancer said a prayer while performing at a school assembly. While Servatius lost at trial, the trial judge did not order costs against her.
The trial judge in 2020 found that the students were observing the events as educational experiences and not participating in them and that their freedom of religion was not infringed. Students were also not forced to participate.
BC Supreme Court Justice Douglas Thompson also found that the issues in the litigation were of “general public interest” and ordered the parties to pay their own costs.
Servatius appealed the decision about the merits of the complaint, and the school district cross-appealed on the issue of costs.
However, the appeal court wrote in dismissing Servatius’s complaint earlier this week that “on the issue of costs, the appellant did not disclose to the trial judge that her complaint was funded by a special interest group, the JCCF [Justice Centre for Constitutional Freedoms].”
Therefore, “the trial judge’s conclusion that Ms. Servatius was of limited means was therefore an irrelevant factor and ought not to have been considered in the exercise of his discretion,” Justice Susan Griffin wrote on behalf of the appeal court panel.
As well, “the circumstances justify an order that Ms. Servatius pay the costs of the school district,” the appeal court said. “The matter was not a matter of general public interest, but rather, based on facts personal to Ms. Servatius; and the matter was not advanced as an ordinary judicial review proceeding, but rather as litigation over disputed facts.”
Furthermore, “ordinary costs were justified in a situation where Ms. Servatius’s petition sought untenable broad prohibitory relief and her funding put her on an uneven footing with the school district.”
In launching her suit more than six years ago, Servatius argued the school violated her children’s right to religious freedom by being “compelled to in religious ceremonies contrary to their own faith and by violating the principle of state neutrality.”
Port Alberni is a small city on the west coast of Vancouver Island. About a third of the students in the Alberni School District, located on the traditional territory of the Nuu-chah-nulth people on central and west Vancouver Island, are Indigenous.
In the appeal court judgement written by Justice Susan Griffin, the court found no factual errors made in the initial ruling. Griffin noted that the demonstrations were meant to help build community spirit.
She also cited the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which BC adopted in 2019. The judge noted BC has been seeking to incorporate Indigenous culture and perspectives into the public school curriculum consistent with UNDRIP.
NTC President, Cloy-e-iss, Judith Sayers said that her community is pleased that the appeal court ruled that there was no breach of freedom of religion by either the smudging demonstration or the hoop dancer’s prayer before he danced. She also agreed with the lower court that smudging is not a religious action.
“It is a strong ruling that no child was forced to participate in smudging; in fact, they were told they could leave the classroom,” Sayers said, adding that the smudging ceremony part of converting people from one religion or another.
Sayers noted that had the decision gone the other way, children like her grandson, now ten months old, may not have had the chance to learn about his culture because it would have been considered a religion. “It’s taken a long time to even to get to this place for allowing parts of our culture to be taught at school.”
And despite the time and expense of this case, Sayers said there are lessons to be learned, such as parents better informing parents about the smudging ceremony or other aspects of Indigenous culture.
The Justice Centre for Constitutional Freedoms, a non-profit that takes on Charter of Rights and Freedoms cases, released a statement Monday evening saying it was disappointed with the appeal court ruling. It said parents of public school children were not given proper notice or the means to consent.
The release said, “the school failed to provide Ms. Servatius with notice that her child’s classroom and her children would be smudged,” noting the school had described the ceremony in a principal’s letter to parents as seeking to “cleanse the spirits” of the children.
It added that Servatius advised the lower court that she was okay with aboriginal practices and culture being taught in school “provided that religious rituals and spiritual ceremonies are not imposed on children.”
However, the principal’s letter, which Servatius says she did not receive in time to have her children opt out, became important evidence during the trial. It raised the possibility that the event would be both a learning experience and a participatory one. But the trial judge found that the smudging ceremony did not occur as described.
The letter said participants in the ceremony would hold on to cedar branches, but the appeal court wrote that the trial judge found that the smudging did not involve the children holding cedar branches, nor was smoke waved over the children.
The trial judge had ruled: “Only the classroom’s perimeter walls and door frames were smudged, involving a very small amount of smoke. The Elder used an abalone shell and eagle feather and described the traditions and beliefs associated with smudging and sprinkled in a few words in the Nuu-chah-nulth dialect. No students held the feather or had smoke fanned on to them.”
As to the issue of costs, the JCCF statement said it was also disappointed in the outcome. It also claims that the JCCF “has not indemnified” Servatius but that it would accept donations to cover the costs.
