Monday, May 04, 2009

Bill 44 Amendments on Parental Exemption is Bad Law and a Political Sop to So-Cons

There is a significant and growing citizen's resistance movement to the so-called “parental exemption” proposed in the new Alberta Human Rights Act. I have been mulling this situation for a few days and my concerns have growen the more I reflect on the implications of this Bill 44 amendment. I also simply fail to see neither the need nor the wisdom in passing such a law.

It is pretty obvious that most of the Alberta Progressive Conservative caucus is "going along to get along" with the social conservative element. They are hoping that by being quiet this ill-conceived parental exemption amendment will pass unnoticed. By being benign they are reneging on their duty to Albertans as our political representatives. They are actually doing serious harm to many citizens, including children, parents, teachers and school board trustees – just to name a few.

This will be bad law. It will cause more problems for individual teachers and school boards trustees than they deserve. They should never be asked to shoulder such a burden because of such inept legislation. The PC caucus is setting up those hard working and innocent public servants for personal pain and anguish - just for doing their jobs.

There will be the inevitable accusation of a violation of this new parental exemption head of human right our government is creating in Bill 44. This will be done by filing of formal human rights complaints against teachers and likely school boards, perhaps even against individual Trustees. It will be championed by some dogmatic zealot who will set out to make a name for themselves on the issues of religion, sexuality and sexual orientation. This will put some poor teacher right in the middle of the controversy and a nation-wide media feeding frenzy. Talk about unintended secondary consequences of political ineptness and poor governance.

This Bill 44 amendment also has all the markings of a court challenge written all over it. If is passed and applied it is undoubtedly on its way to the courts or its legality. My guess is it will go all the way to the Supreme Court. The Alberta government forced the Constitutional issue of french language education rights all the way to the Supreme Court in the more enlightened days of the Lougheed government. This Bill 44 stuff is going to be much more controversial.

The lawyer in me asks why we need this legislated change and this new legal status for a parental exemption right at all. What is the actual social mischief or mistake it is trying to solve? The School Act has already resolved the parental exemption issue quite satisfactorily and it has been working for years. The Preamble of the School Act also “explicitly” recognizes the role of parents in the education of their children. Here is the relevant parts of the Preamble and the key section of the School Act.

WHEREAS the best educational interests of the student are the paramount considerations in the exercise of any authority under this Act;
WHEREAS parents have a right and a responsibility to make decisions respecting the education of their children;

Section 50 of the School Act already provides both the provision of religious and patriotic instruction and for the parental exemption from such religious and patriotic instruction. This provision has been working well since 1988. It reads as follows:

50 - Religious and patriotic instruction
(1) A board may
(a) prescribe religious instruction to be offered to its students;
(b) prescribe religious exercises for its students;
(c) prescribe patriotic instruction to be offered to its students;
(d) prescribe patriotic exercises for its students;
(e) permit persons other than teachers to provide religious instruction to its students.

(2) Where a teacher or other person providing religious or patriotic instruction receives a written request signed by a parent of a student that the student be excluded from religious or patriotic instruction or exercises, or both, the teacher or other person shall permit the student
(a) to leave the classroom or place where the instruction or exercises are taking place for the duration of the instruction or exercises, or
(b) to remain in the classroom or place without taking part in the instruction or exercises.

Bill 44 makes Alberta the last province in the country to “explicitly” acknowledge, in statute, sexual orientation as a human right. Concurrently with this late coming enlightenment, Bill 44 also proposes the following amendment to extend and expand the power of parental exemption from the Alberta school curriculum:

Notice to parent or guardian
11.1(1) A board as defined in the School Act shall provide
notice to a parent or guardian of a student where courses of
study, educational programs or instructional materials, or
instruction or exercises, prescribed under that Act include
subject-matter that deals explicitly with religion, sexuality or
sexual orientation.
(2) Where a teacher or other person providing instruction,
teaching a course of study or educational program or using the
instructional materials referred to in subsection (1) receives a
written request signed by a parent or guardian of a student that
the student be excluded from the instruction, course of study,
educational program or use of instructional materials, the
teacher or other person shall in accordance with the request of
the parent or guardian and without academic penalty permit the
(a) to leave the classroom or place where the instruction,
course of study or educational program is taking place or
the instructional materials are being used for the duration
of the part of the instruction, course of study or
educational program, or the use of the instructional
materials, that includes the subject-matter referred to in
subsection (1), or
(b) to remain in the classroom or place without taking part
in the instruction, course of study or educational
program or using the instructional materials.

What is actually proposed in Bill 44 is much more disturbing and expansive than anything covered in Section 50 of the School Act. The official government line is Bill 44 is not proposing anything different that Section 50 of the School Act. If that is the truth, why amend Bill 44 at all. The matter has been well under control for over 20 years.

The real problem here is bad politics not good governance. The majority of the PC caucus appears to be pandering to the minority social conservative elements in their midst. It looks to me that the choosing-to-be-silent majority in the PC caucus are attempting to appease the social conservative with this over-reaching and unnecessary “parental exemption” provision. They are self-delusional if they believe it to be merely a symbolic gesture. Laws are more than mere symbolism. If your purpose is mere symbolism, please don't use the law as your symbolic vehicle.

The truth is the Bill 44 proposals go dangerously beyond mere symbolism. We already have a Charter giving citizens freedom of religion. That also means we have freedom from religion in Canada. Those are the two sides of religious freedom are handled in the current parental exemptions from religious instruction in the School Act. That is very different from the proposed Bill 44 parental exemptions contained in section 11.1 of Bill 44.

Bill 44 is not about an appropriate and respectful accommodation of an exemption from religious instruction as provided in the School Act. Bill 44 is about providing an explicit exempting option whereby a child can be removed from teachings about religion itself as a subject matter. This is hardly symbolic and very different from the School Act exemption. What's more that extended exemption in Bill 44 appears to be elevated in status. It is to become a legally enforceable right of the parent, who can then complain to the Alberta Human Rights Commission about any preceive breach, as they wish. Is that the stuff of symbolism?

If I am right about Bill 44 creates an exemption from instruction about religion, well there goes a good portion of the history curriculum. How can you exclude the impact and influence of religion from the Crusades or the Reformation, or the Renaissance and the Enlightenment? They all relate to religion in one way or another. While we are at this, what qualifies as a religion to justify the exemption? How about aboriginal spiritualism? How about ancient and emerging alternative religious belief? How about Wicca? How ironic and idiotic this all becomes.

Wait, it gets worse. We have finally included sexual orientation as a protected status under the proposed new Alberta Human Rights Act. While Bill 44 now says sexual orientation is to be a protected human right in Alberta, just as it has been in every other province for some time now. It is also written into our proposed "human rights" law that sexual orientation is somehow not an acceptable topic for discussion in Alberta schools. So much for any evidence of an authentic effort by the Stelmach government at inclusion, acceptance and tolerance of differences when it comes to the sexual orientations of our citizens.

Here we go again feeding the Neanderthal stereotype of the socially backward Albertan yet again. We are the last province in all of Canada to put sexual orientation in our so-called Human Rights Act and then, right in the same legislation, we effectively legalize disdain for those Albertans with a “different” sexual orientation. Ironic yes, but it more like a shameful tragedy to my mind.

Looking at the specifics of the Bill 44 amendment we see it is not about School Act provisions about “religious instruction.” It is about exempting instruction about “religion” (a.k.a. evolution?) “sexuality” (a.k.a. homosexuality?) and “sexual orientation” (a.k.a. gay marriage?). Why are the so-cons being appeased by the deafening silence and insouciance of the PC Caucus? Do they actually agree with these provisions?

Please don’t tell me the appeasement is a quid pro quo for the insertion of sexual orientation in Bill 44 in the first place. That is not a negotiable item. It is the established and accepted law of the land. Alberta is finally catching up the rest of the country by explicitly including it in our Human Rights law. There is nothing to negotiate here. It is settled law.

Let’s call a spade a spade. This so-called “religion” and “sexual orientation” exemption is all about certain social conservative and religious creationists continuing to fight over our public schools teaching evolution and not creationism. I suggest it is also about the intolerant religious angst from some So-con over losing the battle for sexual orientation to be finally included as a legislated human right in Alberta. It is a thinly veiled effort to elevate an acceptable School Act parental exemption over “religious instruction” into a faux and ersatz human right enforceable by complaints and hearings before Human Rights Tribunals in Alberta.

Bill 44 section 11.1 is bad law because it is not only unnecessary but it will embolden social conservatives and religious fundamentalists to take a page out of the playbook of those radical Muslims who filed an ill founded human rights complaint against Ezra Levant. Mr. Levant was accused of encouraging discrimination, hate and contempt by virtue of his republishing the famous Danish cartoons of the Prophet Mohammad. He was the victim of fundamentalist zealots using human rights provisions inappropriately. So it can and will happen if the opportunity is there.

Mr. Levant’s issue was with section 3 of the human rights legislation not the effects of the proposed section 11.1. He had a point, but his solution was not to eliminate section 3, an argument which has some merit, but to throw out all Human Rights Commissions in total. Mr. Levant offered a non-starter solution but he had a sound principle worth fighting for. In the end he won but it was no doubt an expensive, exasperating and exhaustive process.

Social Conservatives fundamentally detest and deplore what they perceive as judicial activism by the courts. They often accuse judges of making law and not just interpreting law. That happens, but it only happens when we have politicians passing vague, weasel-worded and ill-conceived laws in the first place.

Those bad laws are usually motivated by the blatant ideological attitudes of marginal, not main stream, politicians. As a result they are found to be contrary to the law of the land, most often due to a violation of the Charter of Rights and Freedoms. Bill 44 section 11.1 is a perfect example of such an ideologically motivated failure to provide good governance.

If Bill 44 is passed as is, it's shortcomings will inevitably and expensively remedied by the courts.
This would not be judicial activism. It would be the courts fulfilling its role as the ultimate protector for citizens from abuse by the state. This abuse by the state happens when our duly elected democratic representatives fail to show courage of their convictions, exercise sound judgment, display real wisdom and demonstrate the strength of character needed to do their duty as public servants for the greater good of our society.

Citizens of Alberta are upset with these parental exemption provisions of Bill 44. Their public response is effectively serving notice on their government and their duly elected political representative that the Bill 44 amendments on parental exemptions are unnecessary, dangerous and ill-conceived and contrary to the greater public good. I trust they will all reassess their passivity on the matter, govern themselves accordingly, and delete section 11.1 of Bill 44 at Third Reading.