Court Cases

The Good, the Bad and the Ugly of the…

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

 

It was a bad day for equality but a good day for teachers, when Ontario’s Divisional Court dismissed the application brought by CCLA and Becky McFarlane challenging the government’s decision to repeal the 2015 sex education curriculum and replace it with content from 1998. We intend to continue the fight and will be seeking to appeal the decision.

The good news is that the Court provided clear and unequivocal confirmation that teachers can teach about topics contained in the 2015 curriculum that are absent from the interim version that is currently in place. The missing content relates primarily to issues around consent, sexual orientation, family status and gender identity. Despite the government’s tough talk when the interim curriculum was first released – and their decision to institute a snitch line and encourage parents to report on teachers where they had “concerns” – the position of the government in Court was much different. As the judgment makes clear, the Minister’s lawyer confirmed that “as long as a teacher meets the learning objectives set out for that grade in the 2010 Curriculum, a teacher may address topics that go beyond those expressly set out in the 2010 Curriculum to meet the needs of a given class or student. Those topics include the topics in the 2015 Curriculum that are not found in the 2010 Curriculum.”

This was a significant concession for the government to make, and it certainly upset some of those who were so opposed to the 2015 content and supportive of the government’s decision to send the province’s kids back to the 1990s. Indeed, the President of the Elementary Teachers’ Federation of Ontario (ETFO) said that the concession made the case “a victory for ETFO and others”. ETFO had also challenged the government’s decision, albeit on grounds different from the CCLA.

The bad news? For students and parents, today’s decision is so disappointing.  It means that a transgender student may sit in a classroom and hear nothing of themselves reflected in the lesson. It means that a student with a queer mom, like Becky’s daughter, may hear nothing about queer families. What teachers may do is different from what they must do, and that is the importance of a provincial curriculum document. It sets the baseline, and CCLA’s argument has always been that, regardless of what happens in classrooms, the provincial government’s decision to remove content from the curriculum sends a message loud and clear. The message is one of exclusion and inequality. The ugliness of today’s decision is that it does nothing to disabuse Ontarians of that message. We will have to hope that the Court of Appeal will take up the call.

LGBTQ Rights

This Public Consultation on Sex Ed is Keeping a…

Cara Zwibel
Director of Fundamental Freedoms Program
czwibel@ccla.org

 

 

 

 

The Ontario government’s decision to scrap the 2015 sex ed curriculum and replace it with content from 1998 has been the subject of significant controversy, debate, and more than one legal challenge. In January, the CCLA and our co-applicant Becky MacFarlane were before the Ontario Divisional Court arguing that the decision to revert to the old curriculum violated the right to equality and was an arbitrary decision that should not be upheld. We are waiting for the Court’s decision, as are Ontario’s students, teachers and parents.

To us, the government’s reasons for reverting to the 1998 curriculum are clearly grounded in discriminatory attitudes towards the LGBTQ+ community, despite its statements about respecting parents and listening to “the people”. The government’s own purported reason for the change was that the 2015 curriculum was the product of an inadequate and flawed consultation process. As a result, the government engaged in what the Minister of Education has described as “the largest-ever consultation on education in Ontario’s history”.  Early reports about the consultation process demonstrated that there was a huge amount of support for the 2015 sex ed curriculum and little appetite for a reversion to the lessons of the 1990s. However, Premier has already attempted to cast doubt on the consultation process – the one his own government designed and implemented – by saying that “certain groups” flooded the process in its early days and may have skewed the results.

As an organization that is fiercely committed not only to equality but also to government accountability, we wanted to know how the government would take what they learned through the consultation and use it to develop the next curriculum. We had thought that a government that gloats about the extensiveness of its consultation process would want to show off the results. Surely, a government “for the people” would be responsive to the people. At a minimum, the people would be allowed to know what the people said. Turns out we were wrong.

Shortly after the consultation process closed in December of 2018, I made an access to information request to the Ministry of Education, asking for the results or data that the government gathered through the consultation process, particularly for the sex ed issue. The government designed the consultation process in a way that makes requests for access complicated. People wishing to share their views with the government could respond to a targeted survey, but could also send an email, submit a form with lots of spaces for open text, and participate in a telephone town hall. The consultation had no obvious way to control for multiple submissions from the same individual or even to assure that those participating were people residing in Ontario. Apparently, the government received over 70,000 submissions in one form or another – so there would be a lot of information to go through.

I worked with accommodating staff on the Ministry’s Information and Privacy team and pared my request down to weekly summaries of the consultations that Ministry staff had created. This would make the request easier and cheaper to process since it would not involve staff going through tens of thousands of pages of submissions or redacting personal information.

Now, however, the Ministry has denied my request on the basis that the summaries are “Cabinet records” under section 12 of Ontario’s Freedom of Information and Protection of Privacy Act.  Since the summaries are purportedly going to Cabinet for discussions about future policy directions, the Ministry argues that they cannot be turned over under access to information laws. The logical conclusion from this position is that if consultations with “the people” will inform discussions in Cabinet (as they should), the people can’t know what the people said.

Why does this matter? A consultation process doesn’t mean that the public gets to decide on policy, but if it is a meaningful one it should allow the public to understand what the government heard and how it arrived at its ultimate decision. Without robust access to information, politicians can spin the results. The Premier’s statement that “certain groups” skewed the process is one example. More recently, the Minister of Education has said that the consultation process showed a concern that the sex ed curriculum did not do an adequate job of teaching about consent. Of course, the 2015 curriculum contained a great deal more content on consent than the 1998 curriculum, but it appears even the 2015 curriculum was considered inadequate by many participants. This is useful information – and apparently, we can look forward to “further updates” on the findings from the consultation by the Minister. But we can only see what the government chooses to tell us, not a summary of what all participants had to say. We are not allowed to see the whole picture, probably because it may show us something that the government prefers we don’t see. We will be left to wonder what the government isn’t telling us, and which people this government is really for. If the point of the consultation was to increase public confidence, shielding the consultation results from public scrutiny directly and fatally undermines this goal.

We’ll be appealing the Ministry’s decision to shield the consultation summaries from disclosure, and will keep you posted on our progress.

Court Cases

LGBTQ+ and GENDER EQUALITY TRIUMPH: TWU v LSUC

LGBTQ+ and gender equality prevailed today, consistent with CCLA’s position, before the Supreme Court of Canada in Trinity Western University, et al. v. Law Society of Upper Canada, 2018 SCC 33, and Law Society of British Columbia v. Trinity Western, 2018 SCC 32. The majority affirmed that the Law Society of Upper Canada’s (LSUC) decision not to accredit Trinity Western University’s (TWU) proposed law school was reasonable and represents a proportionate balance between the Charter rights of equality and religious freedom. The SCC endorsed the LSUC’s conclusion that it could not accredit a proposed law school that condones a mandatory Covenant that effectively excludes LGBTQ+ students, faculty and others. That Covenant was held by the Court to be “discriminatory” (McLachlin C.J.’s Reasons, at para. 138) and “degrading and disrespectful” (Majority Reasons, at para. 101) against individuals and groups based on sexual orientation, gender, marital status and religion. The majority decision is consistent with certain key principles advanced by the Canadian Civil Liberties Association as intervenors in the matter.

While the court recognized that the Charter right to freedom of religion was engaged in this case, it held that… “it is inimical to the integrity of the legal profession to limit access on the basis of personal characteristics. As a public actor, the LSUC has an overarching interest in protecting the values of equality and human rights in carrying out its functions.” CCLA had argued before the Supreme Court that accreditation of a law school confers upon the host university a significant public benefit – financial and reputational. An institution receiving a public benefit of this nature cannot then exclude individuals on the basis of sexual orientation or other grounds.

The majority of the SCC held that while the Law Society’s decision not to accredit TWU’s law school was a breach of religious freedoms, it was a justifiable one because the LSUC exercised a reasonable balancing act to reach its decision that took into account TWU’s religious freedom and the LSUC’s statutory mandate to protect the public interest. The majority decision and the Chief Justice diverged on whether the infringement upon freedom of religion, expression and association was of “minor” significance, but they agreed on the result.

A joint dissenting opinion concluded that the Law Society’s purpose in approving a law faculty’s educational standard was found in their governing statute. That purpose was to ensure that individual graduates are fit to become members of the legal profession because they meet minimum standards of competence and ethical conduct. Given the absence of any concerns relating to the fitness of prospective TWU law graduates, the dissent held, the only defensible exercise of the LSUC’s statutory discretion would have been to approve TWU’s proposed law school.

The CCLA was represented by Alan D’Silva and Alexandra Urbanski of Stikeman Elliott LLP. We are very grateful for the pro bono service of these eminent lawyers and their firm.

Read CCLA’s factum here.
The LSUC decision can be found here. The LSBC decision can be found here.