"Exclusion of a student from a significant occasion of school life, like the school Prom, constitutes a restriction in access to a fundamental social institution."
"In Canada we are permitted to hold views that are in conflict with public policy, but we are not permitted to act upon discriminatory views in prescribed fields of endeavour when the result is discriminatory treatment of others. "
"The separation of church and state is a fundamental principle of our Canadian democracy and our constitutional law."
Two Countries - Same Path
"The United States Supreme Court in Bob Jones University recognized that the state has a right to insist that public funds will not be used to subsidize discriminatory practices, even where it is asserted that those discriminatory practices are founded on sincere religious beliefs."
"Mark Hall is a Roman Catholic Canadian trying to be himself. He is gay. It is not an answer to his section 15 Charter rights, on these facts, to deny him permission to attend his school's function with his classmates in order to celebrate his high school career. It is not an answer to him, on these facts, to suggest that he can exercise his freedom of disassociation and leave his school."
The Case Against Catholic School Board Discrimination
from the Judgment of Justice MacKinnon:
May 10, 2002
School is a fundamental institution in the lives of young people. It often provides the context for their social lives both in and outside of school hours. Recreational activities such as sports, clubs and dances, which are important in the development of a student's development, are often experienced within the school setting. Exclusion of a student from a significant occasion of school life, like the school Prom, constitutes a restriction in access to a fundamental social institution.
The social history evidence before me clearly discloses that gay men and lesbian women have been treated as less worthy and less valued than other members of society. Canadian law has accepted that homosexuality is not a mental illness or a crime but rather an innate characteristic not easily susceptible to change. Stigmatization of gay men rests largely on acceptance of inaccurate stereotypes - that gay men are mentally ill, emotionally unstable, incapable of enduring or committed relationships, incapable of working effectively and prone to abuse children. Scientific studies in the last fifty years have discredited these stereotypes.
Counsel for Mr. Hall argues that one's right to be protected from discrimination means the right to be different, to be accepted as different, and to have equality of treatment that embraces and honours that difference.
The Church's Catechism, in three paragraphs, first declares that homosexuality is contrary to natural law and can under no circumstances be approved, but goes on to direct both that homosexuals should be accepted with respect, compassion, and sensitivity and also that every sign of unjust discrimination should be avoided.
The Supreme Court of Canada in Trinity Western University held that "the freedom to hold beliefs is broader than the freedom to act on them." and that "Neither freedom of religion nor the guarantee against discrimination based on sexual orientation is absolute". At the heart of the Trinity Western decision lies a distinction between holding a discriminatory view and actively discriminating against someone.
In Canada we are permitted to hold views that are in conflict with public policy, but we are not permitted to act upon discriminatory views in prescribed fields of endeavour when the result is discriminatory treatment of others. Counsel for Mr. Hall argues that it is inconsistent to accept people as homosexuals and, at the same time, to suppress all activity connected to their homosexuality. He characterizes the position of Mr. Hall's Church as "It's okay to be gay - just don't act gay".
It is not the task of a civil court to direct the Principal, the Board, the Roman Catholic Church or its members, or indeed any member of the public, as to what his or her religious beliefs ought to be. The separation of church and state is a fundamental principle of our Canadian democracy and our constitutional law.. If individuals in Canada were permitted to simply assert that their religious beliefs require them to discriminate against homosexuals, without objective scrutiny, there would be no protection at all from discrimination for gays and lesbians in Canada because everyone who wished to discriminate against them could make that assertion.
If the Board's view was correct, then section 93 would mean that Catholic schools had unfettered authority to do whatever they like on any matter. That is not the law . In 1867, homosexual activity was viewed both as a crime and as a sickness. Today it is viewed as neither. Canadians' understanding of human behaviour and of its people has changed over the last 135 years.
The proper approach is to look at the rights as they existed in 1867 but then to apply 2002 common sense. In 2002, a School Board's legal authority (whether public or separate) is part of our provincial public educational system which is publicly funded by tax dollars and publicly regulated by the province.
The United States Supreme Court in Bob Jones University recognized that the state has a right to insist that public funds will not be used to subsidize discriminatory practices, even where it is asserted that those discriminatory practices are founded on sincere religious beliefs. Even schooling that is not funded by the government must still respect the right of the province to insist on certain minimal requirements in the education of all students.
I keep in mind that the role of a school is to enlighten and guide students - not to control their private thoughts or behaviour. The record before me is rife with the effects of historic and continuing discrimination against gays. The evidence in this record clearly demonstrates the impact of stigmatization on gay men in terms of denial of self, personal rejection, discrimination and exposure to violence.
The cultural and social significance of a high school Prom is well-established. Being excluded from it constitutes a serious and irreparable injury to Mr. Hall as well as a serious affront to his dignity. If the order is not granted then until trial it will be acceptable for the defendant school to restrict gay and lesbian students from selected school activities on the basis of their demonstrated sexual orientation. I have already observed that the effects of this sort of exclusion are pervasive, serious and contribute to an atmosphere of self destructive behaviour among gay youth.
The Board can always seek to have its ongoing rights thoroughly protected at trial. Mr. Hall will have no other opportunity to attend his Prom after tonight. The idea of equality speaks to the conscience of all humanity - the dignity and worth that is due each human being.
Mark Hall is a Roman Catholic Canadian trying to be himself. He is gay. It is not an answer to his section 15 Charter rights, on these facts, to deny him permission to attend his school's function with his classmates in order to celebrate his high school career. It is not an answer to him, on these facts, to suggest that he can exercise his freedom of disassociation and leave his school. He has not, in the words of the Board, "decided to make his homosexuality a public issue". Given what I have found to be a strong case for an unjustified section 15 breach, he took the only rational and reasonable recourse available to him. He sought a legal ruling.
There are stark positions at each end of the spectrum on this issue. It is one of the distinguishing strengths of Canada as a nation that we value tolerance and respect for others. All of us have fundamental rights including expression, association and religion. Sometimes, as in this case, our individual rights bump into those of our neighbours and of our institutions. When that occurs we, as individuals and as institutions, must acknowledge the duties that accompany our rights.
Mr. Hall has a duty to accord to others who do not share his orientation the respect that they, with their religious values and beliefs, are due. Conversely, for the reasons I have given, the Principal and the Board have a duty to accord to Mr. Hall the respect that he is due as he attends the Prom with his date, his classmates and their dates.
interlocutory injunction will be issued restraining the defendants and their agents
and all persons having knowledge of this order from preventing or impeding Marc
Hall from attending his high school Prom with his boyfriend on May 10, 2002. The
defendants have undertaken to the court not to cancel the Prom in the event that
I granted the plaintiff's request for relief and I accordingly make no further