Chamberlain v. Surrey School District No. 36

Chamberlain v. Surrey School District No. 36
Collection
Supreme Court Judgments
Date
2002-12-20
Neutral citation
2002 SCC 86
Report
[2002] 4 SCR 710
Case number
28654
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
British Columbia
Subjects
Administrative law
Education law
Notes
SCC Case Information: 28654
Decision Content
Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, 2002 SCC 86
James Chamberlain, Murray Warren, Diane Willcott,
Blaine Cook, by his Guardian Ad Litem,
Sue Cook, and Rosamund Elwin Appellants
v.
The Board of Trustees of School District No. 36 (Surrey) Respondent
and
EGALE Canada Inc., the British Columbia Civil Liberties
Association, Families in Partnership, the Board of Trustees of
School District No. 34 (Abbotsford), the Elementary Teachers’
Federation of Ontario, the Canadian Civil Liberties Association,
the Evangelical Fellowship of Canada, the Archdiocese of Vancouver,
the Catholic Civil Rights League and the Canadian Alliance for
Social Justice and Family Values Association Interveners
Indexed as: Chamberlain v. Surrey School District No. 36
Neutral citation: 2002 SCC 86.
File No.: 28654.
2002: June 12; 2002: December 20.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for british columbia
Administrative law — Judicial review — Standard of review — School boards — Selection of books for use in classrooms — School Board passing resolution declining to approve three books depicting same‑sex parented families as supplementary learning resources for use in Kindergarten‑Grade One classrooms — Standard of review applicable to Board’s decision — Whether Board’s decision reasonable — School Act, R.S.B.C. 1996, c. 412, s. 76.
Schools — School boards — Powers and duties — Selection of books for use in classrooms — School Board passing resolution declining to approve three books depicting same‑sex parented families as supplementary learning resources for use in Kindergarten‑Grade One classrooms — Whether Board applied criteria required by School Act, curriculum and its own regulation for approving supplementary learning resources — School Act, R.S.B.C. 1996, c. 412, ss. 76, 85.
Schools — School boards — Powers and duties — Selection of books for use in classrooms — Meaning of secularism and non‑sectarianism in School Act — School Board passing resolution declining to approve three books depicting same‑sex parented families as supplementary learning resources for use in Kindergarten‑Grade One classrooms — Whether Board acted in manner that accorded with secular mandate of School Act — Whether requirements of secularism and non‑sectarianism preclude Board making decisions based on religious considerations — School Act, R.S.B.C. 1996, c. 412, ss. 76, 85.
The B.C. School Act confers on the Minister of Education the power to approve basic educational resource materials to be used in teaching the curriculum in public schools, and confers on school boards the authority to approve supplementary educational resource material, subject to Ministerial direction. A Kindergarten‑Grade One (“K‑1") teacher asked the Surrey School Board to approve three books as supplementary learning resources, for use in teaching the family life education curriculum. The books depicted families in which both parents were either women or men — same‑sex parented families. The Board passed a resolution declining to approve the books. The Board’s overarching concern, as found by the trial judge, was that the books would engender controversy in light of some parents’ religious objections to the morality of same‑sex relationships. The Board also felt that children at the K‑1 level should not be exposed to ideas that might conflict with the beliefs of their parents; that children of this age were too young to learn about same‑sex parented families; and that the material was not necessary to achieve the learning outcomes in the curriculum.
The British Columbia Supreme Court quashed the Board’s resolution, finding the decision offended s. 76 of the School Act, because members of the Board who had voted in favour of the resolution were significantly influenced by religious considerations. The Court of Appeal set aside the decision on the basis that the resolution was within the Board’s jurisdiction.
Held (Gonthier and Bastarache JJ. dissenting): The appeal should be allowed. The School Board’s decision was unreasonable in the context of the educational scheme laid down by the legislature. The question of whether the books should be approved as supplementary learning resources is remanded to the Board, to be considered according to the criteria laid out in the curriculum guidelines and the broad principles of tolerance and non‑sectarianism underlying the School Act.
Per McLachlin C.J. and L’Heureux‑Dubé, Iacobucci, Major, Binnie and Arbour JJ.: The pragmatic and functional approach points to reasonableness as the appropriate standard of review. The School Board is an elected body and a proxy for parents and local community members, which suggests that some deference is owed. However, the absence of a privative clause, the clear commitment of the School Act and the Minister to promoting tolerance and respect for diversity, and the fact that the problem before the Board has a human rights dimension, all militate in favour of a stricter standard of review.
The School Act’s insistence on secularism and non‑discrimination lies at the heart of this case. The Act’s requirement of secularism in s. 76 does not preclude decisions motivated in whole or in part by religious considerations, provided they are otherwise within the Board’s powers. But the Board must act in a way that promotes respect and tolerance for all the diverse groups that it represents and serves.
The Board’s decision is unreasonable because the process through which it was made took the Board outside its mandate under the School Act. First, the Board violated the principles of secularism and tolerance in s. 76 of the Act. Instead of proceeding on the basis of respect for all types of families, the Board proceeded on an exclusionary philosophy, acting on the concern of certain parents about the morality of same‑sex relationships, without considering the interest of same‑sex parented families and the children who belong to them in receiving equal recognition and respect in the school system. Second, the Board departed from its own regulation with respect to how decisions on supplementary resources should be made, which required it to consider the relevance of the proposed material to curriculum objectives and the needs of children of same‑sex parented families. Third, the Board applied the wrong criteria. It failed to consider the curriculum’s goal that children at the K‑1 level be able to discuss their family models, and that all children be made aware of the diversity of family models in our society. Instead, the Board applied a criterion of necessity, which was inconsistent with the function of supplementary resources in enriching children’s experience through the use of extra materials of local relevance. The Board erred in relying on concerns about cognitive dissonance and age‑appropriateness which were foreclosed by the curriculum in this case. In the result, the question of whether to approve the books is remanded to the Board.
Per LeBel J.: The pragmatic and functional approach has proven a useful tool in reviewing adjudicative or quasi‑judicial decisions made by administrative tribunals. There are, however, limits to the usefulness of applying this framework to its full extent in a different context. When the administrative body whose decision is challenged is not a tribunal, but an elected body with delegated power to make policy decisions, the primary function of judicial review is to determine whether that body acted within the bounds of the authority conferred on it. The preliminary question is whether the Board acted legally; it could not validly exercise a power it did not have. Although the issue is not directly raised by this appeal, as long as the Board’s educational policy decisions are made validly pursuant to its powers, they would be entitled to a very high level of deference. In this case, the Board’s decision could not be upheld even on the most deferential standard of review, because it was patently unreasonable. It is, therefore, unnecessary to go through the full analysis of the various factors used to determine the appropriate standard of judicial review.
The Board was authorized to approve or not to approve books for classroom use. But its authority is limited by the requirements in s. 76 of the School Act to conduct schools on “strictly secular and non‑sectarian principles” and to inculcate “the highest morality” while avoiding the teaching of any “religious dogma or creed”. The words “secular” and “non‑sectarian” in the Act imply that no single conception of morality can be allowed to deny or exclude opposed points of view. Disagreement with the practices and beliefs of others, while certainly permissible and perhaps inevitable in a pluralist society, does not justify denying others the opportunity for their views to be represented, or refusing to acknowledge their existence. Whatever the personal views of the Board members might have been, their responsibility to carry out their public duties in accordance with strictly secular and non‑sectarian principles included an obligation to avoid making policy decisions on the basis of exclusionary beliefs. Section 76 does not prohibit decisions about schools governance that are informed by religious belief. The section is aimed at fostering tolerance and diversity of views, not at shutting religion out of the arena. It does not limit in any way the freedom of parents and Board members to adhere to a religious doctrine that condemns homosexuality but it does prohibit the translation of such doctrine into policy decisions by the Board, to the extent that they reflect a denial of the validity of other points of view.
In this case, the evidence leads to the conclusion that the way the Board dealt with the three books was inconsistent with the School Act’s commitment to secularism and non‑sectarianism. The overarching concern motivating the Board to decide as it did was accommodation of the moral and religious belief of some parents that homosexuality is wrong, which led them to object to their children being exposed to story books in which same‑sex parented families appear. The Board allowed itself to be decisively influenced by certain parents’ unwillingness to countenance an opposed point of view and a different way of life. Pedagogical policy shaped by such beliefs cannot be secular or non‑sectarian within the meaning of the School Act. The Board reached its decision in a way that was so clearly contrary to an obligation set out in its constitutive statute as to be not just unreasonable but illegal. As a result, the decision amounts to a breach of statute, is patently unreasonable, and should be quashed.
Per Gonthier and Bastarache JJ. (dissenting): Based on the nature of the decision being reviewed, the appropriate standard of review for such a decision, and an examination of the totality of the context, the School Board’s decision should be affirmed. The decision is consistent with the Charter, the School Act and the Ministerial directives. It was made within the ambit of the discretion granted by the Act.
The appropriate standard of review in this case is reasonableness. First, the absence of a privative clause should be considered in light of the corresponding absence of a clause expressly allowing the decisions of the Board to be appealed before the courts and of the non‑adjudicative nature of the School Board. Second, the decision to approve the books or not requires the Board to balance the interests of different groups, a function which falls within its core area of expertise as a locally elected representative body. While the decision also has a significant human rights dimension, here the Board made a largely factual determination with a view to balancing local parental concerns against the broad objective of promoting Charter values. The decision should thus attract greater deference than when administrative tribunals make general determinations of law concerning basic human rights issues affecting numerous future cases. Third, the purpose for which the legislature granted the Board authority to approve supplementary learning materials was to allow for local input in choosing such materials. Fourth, the nature of the problem does not involve the strict application of legal rules or the interpretation of law, but a highly contextual and polycentric analysis.
Charter values are to be respected in the school context generally. That context, however, involves a need to respect both the right of homosexual persons to be free from discrimination and parental rights to make the decisions they deem necessary to ensure the well‑being and moral education of their children. The privileged role of parents to determine what is in their children’s well‑being, including their moral upbringing, and their right to raise their children in accordance with their conscience, religious or otherwise, is central to analyzing the reasonableness of the School Board’s decision. The common law has long recognized that parents are in the best position to take care of their children and make all the decisions necessary to ensure their well‑being providing they act in accordance with the best interests of their children. This Court has reiterated the paramount parental role by construing the nature of the authority schools and teachers have over children as a delegated authority. The notion of a school’s authority being delegated, if it allows parents to remove their children from the public school system, must also guarantee to parents the role of having input with regard to the values which their children will receive in school. This is generally brought about by electing representatives to school boards who will develop consensus and govern on matters pertaining to public education. These local school boards are empowered by the School Act to approve or not approve complementary educational resource materials. They do not, however, have an unfettered discretion. They must act in a manner consistent with the School Act and the evaluation, selection criteria and procedures adopted by the Board. Here, the Board’s criteria for approving complementary educational resource materials contained reference to concepts such as “age‑appropriateness” and envisaged that the existence of parental concern in the community would be a factor to be considered.
A school board is a branch of government and thus subject to the Charter by operation of s. 32. It is not appropriate, however, in this case, to embark upon a complete s. 15 analysis to establish a direct breach of the Charter by the School Board. The s. 15 issues and those concerning standing were not addressed by the courts below, and none of the appellants are same‑sex parents or children of such parents, who could allege having been exposed to differential treatment based on their personal characteristics by not being represented alongside other family types in Surrey K‑1 classrooms. The relevant Charter values are nevertheless incorporated in the requirements of the School Act. Therefore, approaching this case as one of accommodation or balancing between competing Charter rights adequately addresses the impact of the Charter. The Charter reflects a commitment to equality and protects all persons from discrimination. It also protects freedom of religion and freedom of expression. Where belief claims seem to conflict, s. 15 cannot be used to eliminate beliefs, whether popular or unpopular. An acceptable resolution is accommodating or balancing. The relationship between ss. 2 and 15 of the Charter, in a truly free society, must permit persons who respect the fundamental and inherent dignity of others and who do not discriminate, to still disagree with others and even disapprove of the conduct or beliefs of others. Thus, persons who believe, on religious or non‑religious grounds, that homosexual behaviour, manifest in the conduct of persons involved in same‑sex relationships is immoral, and those who believe that homosexual behaviour is morally equivalent to heterosexual behaviour, are entitled to hold and express their view. Both groups, however, are not entitled to act in a discriminatory manner. The distinction between actions and beliefs is present in Canada’s constitutional case law: persons are entitled to hold such beliefs as they choose, but their ability to act on them, whether in the private or public sphere, may be narrower. This approach reflects the fact that ss. 2(a) and 2(b) of the Charter coexist with s. 15, which extends protection against discrimination to both religious persons and homosexual persons. Here, there is no evidence that the parents who felt that the three books were inappropriate for five‑ and six‑year‑old children fostered discrimination against persons in any way.
The Board’s decision is reasonable. The practice of approving or not approving books was clearly within the purview of the School Board’s authority and its decision did not offend the requirement under s. 76 of the School Act that the “highest morality must be inculcated”. That notion ought to be defined as a principle that maintains the allegiance of the whole of society including the plurality of religious adherents and those who are not religious. The values expressed in the Charter derive from a wide social consensus and should be considered as principles of the “highest morality” within the meaning of s. 76 of the School Act. The Board’s decision is consistent with the Charter. It reflects a constitutionally acceptable balance and a position which is respectful of the views of both sides. The three books will not be employed in the two earliest grades, but this subject matter, like the issue of homosexuality as a general topic of human sexuality, is present in later aspects of the curriculum. Further, the failure to approve these books does not necessarily preclude the issue of same‑sex parents being discussed in the classroom. While the best interests of children includes education about “tolerance”, “tolerance” did not require the mandatory approval of the books. “Tolerance” ought not be employed as a cloak for the means of obliterating disagreement.
The Board’s decision is also consistent with a proper understanding of “strictly secular and non‑sectarian principles” in s. 76. Section 76 provides general direction as to how all schools are to be conducted. The assumption that “secular” effectively means non‑religious is incorrect. The religiously informed conscience should not be placed at a public disadvantage or disqualification. To do so would be to distort liberal principles in an illiberal fashion and would provide only a feeble notion of pluralism. The dual requirements that education be “secular” and “non‑sectarian” refer to keeping the schools free from inculcation or indoctrination in the precepts of any religion, and do not prevent persons with religiously based moral positions on matters of public policy from participating in deliberations concerning moral education in public schools. Regardless of the personal convictions of individual members, the reasons invoked by the Board for refusing to approve the books — that parents in the community held certain religious and moral views and the need to respect their constitutional right to freedom of religion and their primary role as educators of their children — raise secular concerns that could properly be considered by the Board.
Lastly, the considerations taken into account by the Board were appropriate. The moral status of same‑sex relationships is controversial and the School Board was caught between two vocal and passionate sides. While it would not have been unconstitutional to approve the three books for use as educational resources, it is similarly not unconstitutional to not approve the books. The Charter does not demand that five‑ and six‑year‑olds be exposed to parents in same‑sex relationships within a dimension of a school curriculum, especially when there is significant parental concern that these materials may be confusing for these young children. The Board’s decision was generally motivated by concerns related to age‑appropriateness and parental concern. The parental concern to which the School Board was responding revolves around the nature of the portrayal of same‑sex parents in the three books and the capacity of Kindergarten and Grade One age students to interpret this portrayal. It was a difficult choice between permitting the three books to be taught in K‑1 against the wishes of some parents and then provide for the exclusion of certain children from the class, or to teach a general lesson about tolerance and respect for people by less controversial means and leave the issue of parents in same‑sex relationships and homosexuality for a time when students are better positioned to address the issues involved and better positioned to reconcile the potentially incongruous messages they may be receiving. That choice, however, was specifically intended to be made locally, as the School Act envisages. The majority of the trustees were of the view that the three books were not appropriate for K‑1 students and were unable to conclude, based on their perception of parental concern and the demands of the curriculum, that such educational materials ought to be approved for K‑1. Of particular importance to the Board’s decision was that the recommended K‑1 learning resources set out by the Ministry of Education did not, at that time, include any other resources expressly dealing with homosexuality or same‑sex couples or families. The family life education curriculum suborganizer refers to students being expected to identify a variety of models for family organization but does not indicate that parents in a same‑sex relationship are to be addressed in K‑1. The prescribed learning outcomes for the K‑1 family life curriculum suborganizer include having children draw and write about their own families, and having children talk about each others’ families. In a situation where there is a child in the classroom that has same‑sex parents, these activities and others would raise the issue of same‑sex parented families and teachers may feel it necessary to discuss it. Even in such a situation it is not necessary that educational resource materials which portray same‑sex parents be generally approved for use in all classrooms in a particular school district. Other options exist. Furthermore, the School Board has a stringent anti‑discrimination policy, one that is taken seriously. The totality of the context tends, therefore, towards a conclusion that the Charter values of equality and non‑discrimination are being fostered by the School Board.
Cases Cited
By McLachlin C.J.
Referred to: Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
By LeBel J.
Referred to: Shell Canada Products Ltd. v. Vancouver (City), [1994] 1 S.C.R. 231; Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13; 114957 Canada Ltée (Spraytech, Société d’arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241, 2001 SCC 40; Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), [2000] 2 S.C.R. 409, 2000 SCC 45; R. v. Sharma, [1993] 1 S.C.R. 650; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3.
By Gonthier J. (dissenting)
B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; Young v. Young, [1993] 4 S.C.R. 3; P. (D.) v. S. (C.), [1993] 4 S.C.R. 141; R. v. Jones, [1986] 2 S.C.R. 284; Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); Wisconsin v. Yoder, 406 U.S. 205 (1972); Prince v. Massachusetts, 321 U.S. 158 (1944); R. v. Audet, [1996] 2 S.C.R. 171; R. v. Forde, [1992] O.J. No. 1698 (QL); Adler v. Ontario, [1996] 3 S.C.R. 609; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Minister of Justice of Canada v. Borowski, [1981] 2 S.C.R. 575; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; Vriend v. Alberta, [1998] 1 S.C.R. 493; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Egan v. Canada, [1995] 2 S.C.R. 513; Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , preamble, ss. 1 , 2 (a), (b), 7 , 15 , 32 .
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171.
Ministerial Educational Program Guide Order, M165/93 [am. M293/95, M405/95 and M465/95], s. 3.
Ministerial Educational Resource Materials Order, M143/89 [am. M11/91 and M167/93], s. 1.
School Act, R.S.B.C. 1996, c. 412, preamble, ss. 65, 76(1), (2), 85(1), (2)(a), (b), 107, 119 et seq., 168(1)(a), (2)(a), (c) [am. 1997, c. 52, s. 22], (e).
School District No. 36 (Surrey) Policy B 64‑95/96.
School District No. 36 (Surrey) Policy 8425.
School District No. 36 (Surrey) Policy 10900.
School District No. 36 (Surrey) Regulation 8800.1.
Authors Cited
Benson, Iain T. “Notes Towards a (Re)Definition of the ‘Secular’” (2000), 33 U.B.C. L. Rev. 519.
British Columbia. Ministry of Education. Evaluating, Selecting, and Managing Learning Resources: A Guide. Victoria: Learning Resources Branch, 1996.
British Columbia. Ministry of Education. Personal Planning K to 7: Integrated Resource Package 1995. Victoria: Learning Resources Branch, 1995.
Elwin, Rosamund, and Michele Paulse. Asha’s Mums. Toronto: Women’s Press, 1990.
Hogg, Peter W. Constitutional Law of Canada, vol. 2, loose-leaf ed. Scarborough, Ont.: Carswell, 1997 (updated 2002, release 1).
Ignatieff, Michael. The Rights Revolution. Toronto: Anansi, 2000.
Newman, Lesléa. Belinda’s Bouquet. Boston: Alyson Wonderland, 1991.
Valentine, Johnny. One Dad, Two Dads, Brown Dad, Blue Dads. Boston: Alyson Wonderland, 1994.
APPEAL from a judgment of the British Columbia Court of Appeal (2000), 191 D.L.R. (4th) 128, [2000] 10 W.W.R. 393, 143 B.C.A.C. 162, 235 W.A.C. 162, 80 B.C.L.R. (3d) 181, 26 Admin. L.R. (3d) 297, [2000] B.C.J. No. 1875 (QL), 2000 BCCA 519, reversing a judgment of the British Columbia Supreme Court (1998), 168 D.L.R. (4th) 222, 60 B.C.L.R. (3d) 311, 12 Admin. L.R. (3d) 77, 60 C.R.R. (2d) 311, [1998] B.C.J. No. 2923 (QL). Appeal allowed, Gonthier and Bastarache JJ. dissenting.
Joseph J. Arvay, Q.C., and Catherine J. Parker, for the appellants.
John G. Dives and Kevin L. Boonstra, for the respondent.
Cynthia Petersen and Kenneth W. Smith, for the intervener EGALE Canada Inc.
Chris W. Sanderson, Q.C., and Keith B. Bergner, for the intervener the British Columbia Civil Liberties Association.
Susan Ursel and David A. Wright, for the intervener Families in Partnership.
Daniel R. Bennett and Paul A. Craven, for the intervener the Board of Trustees of School District No. 34 (Abbotsford).
Written submission by Howard Goldblatt, for the intervener, Elementary Teachers’ Federation of Ontario.
Andrew K. Lokan and Stephen L. McCammon, for the intervener the Canadian Civil Liberties Association.
D. Geoffrey G. Cowper, Q.C., and Cindy Silver, for the interveners the Evangelical Fellowship of Canada, the Archdiocese of Vancouver, the Catholic Civil Rights League and the Canadian Alliance for Social Justice and Family Values Association.
The judgment of McLachlin C.J. and L’Heureux-Dubé, Iacobucci, Major, Binnie and Arbour JJ. was delivered by
The Chief Justice —
I. Introduction
1 The Surrey, British Columbia, School Board passed a resolution refusing to authorize three books for classroom instruction on the ground that they depicted families in which both parents were either women or men — “same-sex parented families”. The question on this appeal is whether that resolution was valid. The appellants have challenged the resolution on two grounds: first, that the Board acted outside its mandate under the School Act, R.S.B.C. 1996, c. 412, and second, that the resolution violates the Canadian Charter of Rights and Freedoms .
2 I conclude that the resolution must be set aside on the first ground. The Board acted outside the mandate of the School Act by failing to apply the criteria required by the Act and by the Board’s own regulation for approval of supplementary material.
3 My colleague, Gonthier J., and I, while differing in the result, agree on many points in this appeal: that the Board’s decision is subject to review by the courts; that the appropriate standard of review is reasonableness; that, as an elected representative body, the Board is accountable to its local community; that its decisions about which books to approve as supplementary learning resources may reflect the concerns of particular parents and the distinct needs of the local community; and finally, that the requirement of secularism laid out in s. 76 does not prevent religious concerns from being among those matters of local and parental concern that influence educational policy. We disagree on whether the Board erred by failing to act in accordance with the requirements of the School Act. I conclude that the Board failed to conform to the requirements of the School Act and that this rendered its decision unreasonable, requiring that the matter be remitted to the Board for consideration on the proper basis.
II. The Appropriate Standard of Review
4 In order to assess the Board’s decision, we must first determine the appropriate standard of review. My colleague LeBel J. in effect questions whether the pragmatic and functional approach should apply to this case, holding that as an elected body, the Board’s decision should be assessed on the basis of whether it is contrary to the statute and hence patently unreasonable. In my view, the usual manner of review under the pragmatic and functional approach is necessary. It is now settled that all judicial review of administrative decisions should be premised on a standard of review arrived at through consideration of the factors stipulated by the functional and pragmatic approach. This is essential to ensure that the reviewing court accords the proper degree of deference to the decision-making body. To apply the analysis that my colleague proposes, is first, to adopt an approach for which no one argued in this case; and second, to return to the rigid and sometimes artificial jurisdictional approach which the more flexible functional and pragmatic approach was designed to remedy.
5 The pragmatic and functional approach applicable to judicial review allows for three standards of review: correctness, patent unreasonableness and an intermediate standard of reasonableness.
6 The standard of “correctness” involves minimal deference: where it applies, there is only one right answer and the administrative body’s decision must reflect it. “Patent unreasonableness”, the most deferential standard, permits the decision to stand unless it suffers from a defect that is immediately apparent or is so obvious that it “demands intervention by the court upon review”: Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, at p. 237. The intermediate standard of “reasonableness” allows for somewhat more deference: the decision will not be set aside unless it is based on an error or is “not supported by any reasons that can stand up to a somewhat probing examination” (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 56; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 63).
7 Which of the three standards is appropriate in a given case depends on the amount of discretion the legislature conferred on the delegate. The relevant amount of discretion is evidenced by four factors, which often overlap: (1) whether the legislation contains a privative clause; (2) the delegate’s relative expertise; (3) the purpose of the particular provision and the legislation as a whole; and (4) the nature of the problem. (See Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Southam, supra; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.)
8 In this case, my colleague and I agree that the four factors point to reasonableness as the appropriate standard of review. First, the School Act contains no privative clause or a legislative direction to the courts to defer to the decisions of school boards. This is consistent with a less deferential standard of review. However, this is only one factor, and does not imply a high standard of scrutiny where other factors point to greater deference: Pushpanathan, supra, at para. 30.
9 The second factor, the Board’s relative expertise, raises competing considerations. It requires us to ask: who is better placed to make the decision, the Board or the court? To assess this, this Court must characterize the expertise of the Board and consider its own expertise relative to that of the Board. And since what matters is expertise relative to the specific problem before the Board, we must consider the nature of the problem before the Board: Pushpanathan, supra, at para. 33.
10 The problem before the Board has two aspects. On the one hand, it requires the Board to balance the interests of different groups, such as parents with widely differing moral outlooks, and children from many types of families. On this aspect, the Board has considerable expertise. As elected representatives, it is their job to bring community views into the educational decision-making process. The Board is better placed to understand community concerns than the court: see Nanaimo (City) v. Rascal Trucking Ltd., [2000] 1 S.C.R. 342, 2000 SCC 13, at para. 35.
11 On the other hand, the decision of whether to approve the three books has a human rights dimension. The Board must decide whether to accommodate certain parents’ concerns about the books at the risk of trumping a broader tolerance program and denying certain children the chance to have their families accorded equal recognition and respect in the public school system. Courts are well placed to resolve human rights issues. Hence, where the decision to be made by an administrative body has a human rights dimension, this has generally lessened the amount of deference which the Court is willing to accord the decision: Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, at para. 24; Trinity Western University v. British Columbia College of Teachers, [2001] 1 S.C.R. 772, 2001 SCC 31, at para. 17; Pezim, supra, at p. 590; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at pp. 584-85, per La Forest J. Different types of human rights issues do, to be sure, play out differently. So the extent to which deference is lessened by the presence of a human rights issue will vary from case to case. The relevant question should always be whether the courts have an expertise equal to or better than that of the board, relative to the particular human rights issue that is faced.
12 The third factor is the purpose for which the legislature granted the Board authority to approve supplementary learning materials. Here the purpose was to allow for local input on choosing supplementary classroom materials. Different communities — urban, rural, aboriginal, for example — may benefit from different material. The Board is in the best position to know what types of families and children fall within its district and what materials will best serve their diverse needs, suggesting deference. This deference is tempered, however, by the School Act’s requirement that the discretion to approve supplementary materials conform to norms of tolerance, respect for diversity, mutual understanding and acceptance of all the family models found in British Columbian society and its schools. Board decisions that undermine these norms are entitled to little deference. If the purpose of the School Act is not to be undermined, the courts must exercise a fairly high level of supervision over decisions involving tolerance and diversity.
13 The fourth factor, the nature of the problem, again negates the suggestion that the courts should accord high deference to the Board’s decision. It is true that the issue does not involve the strict application of legal rules or the interpretation of the law, and that the legislature intended to let the Board and hence the community have a say in choosing resource material. However, as discussed, this is not simply a case of the Board balancing different interests in the community. This is a case requiring the Board to determine how to accommodate the concerns of some members of the community in the context of a broader program of tolerance and respect for diversity. This question attracts court supervision and militates in favour of a stricter standard.
14 The four factors, taken together, point to the intermediate standard of reasonableness. The Board is a political body and a proxy for parents and local community members in making decisions and has been granted a degree of choice on which the legislature has conferred a circumscribed role in approving books. However, the deference that might be warranted by these factors, standing alone, is undercut by clear commitment of the legislature and the Minister to promoting tolerance and respect for diversity. These goals, touching on fundamental human rights and constitutional values, suggest the legislature intended a relatively robust level of court supervision.
15 A decision will be found to be unreasonable if it is based on an error or is “not supported by any reasons that can stand up to a somewhat probing examination” (Southam, supra, at para. 56). The court should not overturn a decision as unreasonable simply because it would have come to a different conclusion. But it can and should examine the process of decision making that led the Board to its conclusion, to ensure that