The Lack of Protection for Non-Denominational Identity: The Webber Academy Case

INTRODUCTION

Webber Academy (or “the school”), a private educational institution in Alberta, defined itself as non-denominational: it did not engage in any overt religious practice (with one possible and qualified exception). Yet, after two Alberta Human Rights Commission (AHRC) decisions, two Queen’s Bench (as it then was) (QB) judgements, two Court of Appeal (CA) rulings and two denial of leaves to appeal by the Supreme Court of Canada (SCC), it was held to have discriminated without justification against two Muslim students whom it prohibited from engaging, on school property, in overt prayers. How did this happen? And what does it mean for whether a private school is able to function in accordance with its own beliefs?

There were two complete rounds of litigation in this case. For convenience, they are set out here:

Round One: a complaint to the AHRC by the students’ parents; an appeal from the AHRC’s 2015 decision (Amir and Nazar v. Webber Academy Foundation [AHRC 1]) by Webber Academy to the QB; an appeal from the 2016 QB decision (Webber Academy Foundation v. Alberta (Human Rights Commission) [QB 1]) by Webber Academy to the CA; application for leave to appeal from the 2018 CA decision (Webber Academy Foundation v. Alberta (Human Rights Commission) [CA 1]) to the SCC by the AHRC; denial of leave to appeal on February 28, 2019 by the SCC No. 38273 (Alberta Human Rights Commission (Director), et al. v. Webber Academy Foundation).

Round Two: rehearing by the AHRC; an appeal from the AHRC’s 2020 decision (Amir and Siddique v. Webber Academy Foundation [AHRC 2]) by Webber Academy to the QB; an appeal by Webber Academy to the CA of the QB’s 2021 decision (Webber Academy Foundation v. Alberta (Human Rights Commission) [QB 2]); application for leave to appeal by Webber Academy of the CA’s 2023 decision (Webber Academy Foundation v. Alberta (Human Rights Commission) [CA 2]); denial of leave to appeal on March 21, 2024 by the SCC No. 40907 (Webber Academy Foundation v. Alberta Human Rights Commission (Director), et al.).

This case illustrates how the prohibition against religious discrimination under human rights legislation and the Canadian Charter of Rights and Freedoms (“the Charter”) applies differently to freedom from religion compared to protection for religious belief. And in that regard, Webber Academy illustrates that seeking to maintain a true non-denominational or secular identity will be almost impossible in the face of the guarantees given to religious freedom.

Although the second Court of Appeal decision is the only one that really matters, I am also referring to other decisions in this thread to a give a fuller sense of how the case led almost inevitably to the final conclusion against Webber Academy’s non-denominational identity freedom from religion claim.

BACKGROUND

As described in the first AHRC decision, “Webber Academy was founded in 1997 and has declared its mandate to be a high quality, non-denominational, co-educational, university preparatory, accredited private school.” It enrolled students from kindergarten to grade 12. (AHRC 1, para. 6; my emphasis)

Dr. Patrick Webber, the founder and president of Webber Academy, was the school’s spokesperson and, it appears, the real decision-maker, although there was also a board of directors. Dianne Lever, the director of admissions and Barbara Webber, vice-president of administration, were also involved “communicating” with the parents about praying on school grounds.

The school provided the kind of facilities one would expect in a school, including classrooms and other academic space, washrooms and places to eat, as well as an infirmary and rooms where students experiencing anxiety could do their homework or spend some quiet time. All students had access to these spaces. (AHRC 2, paras. 83, 85) Justice Poelman, in the first QB decision, described these facilities as “educational programs and other supportive services and facilities incidental to those programs” (QB 1, para. 44).

The school had a uniform dress code, which prohibited headwear, but its handbook explained that “head coverings which have a cultural or religious significance are permitted and may be worn” (QB 1, para. 77). It did not provide any religious facilities or undertake any religious activities, although it did put up religiously ambivalent Christmas tree in its lobby every year.

Although Webber Academy described itself as non-denominational in its materials, and although it permitted some deviations from its dress code and clean-shaven requirements, it did not include a statement about its policy on praying or generally on recognition of religious practices. The recognized practices might be characterized as “passive” religious (or cultural) expression. Nowhere, however, was there reference to overt praying. The lack of an express policy on overt praying meant that staff, teachers and most administrators did not actually know what position Webber Academy took on it and they therefore tended to follow their own inclinations when faced with the issue.

In November 2011, Farhat Amir and Dr. Shabnam Nazar, parents of two teenage boys, Sarmad Amir and Naman Siddique, respectively, applied to Webber Academy. As Sunni Muslims, the teenagers were obligated to pray five times a day. Two of the prayer times coincided with the school day. A prayer consists of two sequences of bowing, kneeling and standing, a process that takes between five and ten minutes (throughout, five minutes seems to have been the agreed upon time required, although the second CA decision refers to “5 to 8 minutes” [CA 2, para. 43]). Those praying did so quietly so as not to be heard by those around them.

The parents anticipated that the boys would be able to engage in prayers when at school; they said this had been addressed in a pre-enrollment meeting and subsequently during a tour of the school. Indeed, when school began, staff and teachers helped the students find places they could pray. Ms Lever was somewhat ambiguous when the issue was raised with her. Ms Webber thought it was enough to say the school was non-denominational to know prayer was not allowed (AHRC 1, para. 93).

However, when Dr. Webber discovered the students were praying, he prohibited it, offering the students time out from school to go off school grounds or to pray without the actions involved. He and the parents met to resolve the issue; when that failed, the parents made a complaint under section 4 of the AHRA to the AHRC of denial of services on the basis of religious belief.

Praying off the property meant adverse consequences for the students from weather, feelings of humiliation, among others (AHRC 1, para. 34). Given subsequent events, Dr. Webber advised that since the parents were ignoring the rules, their sons would not be accepted for the next year.

THE ISSUES ADDRESSED IN THE HUMAN RIGHTS CASE

The circumstances in the case raise several interrelated issues:

1. What does “non-denominational” mean and what is its significance?
2. Did the parents/students’ claim fall under the AHRA?
3. What had the parents requested: dedicated or undedicated space to pray?
4. As a non-denominational school, was Webber Academy’s prohibition of overt praying on school property discriminatory and if it was, was it justified?

Together the answers to these questions raise the larger question of whether it is possible to be a non-denominational or secular institution that recognizes multicultural practices and inclusivity but denies overt religious expression?

 

1. What does “non-denominational” mean and what is its significance?

At the heart of this case is what “non-denominational” means and whether it is a meaningful concept. What kind of activities may effectively result in “losing” the status of being non-denominational?

Dr. Webber defined “non-denominational” as follows:

A “Non-denominational”, in my term, in terms of a non-denominational school is providing students with — with an academic atmosphere that does not include a religious practice. And non-denominational is — is a place where students from any religious background is [sic] welcome to be a part of our — of our academic studies, and it’s — it’s a place where you don’t have students conform to any one belief or prefer one belief over another. (AHRC 1, para. 96)

He was of the view that “’secular and non-denominational essentially mean the same thing: non-denominational means not being affiliated with any particular religion and secular means having no connection with any religion’” (CA 2, para. 13, citing AHRC 2, para 116). Dr. Webber had testified that the goal was to have a school that was “religious neutral” where there was no overt prayer and no religious activities on school property (AHRC 1, para. 87).

In the appeal from the tribunal’s first decision, Poelman J. also indicated Dr. Webber’s understanding of “non-denominational”:

It is a non-denominational school, fostering an atmosphere where those of many faiths and cultures would feel equally at home. This meant that Webber Academy “is not a place where religious activities are to be carried out by members of any religious group on campus.” (QB, para. 6; quoting Dr. Webber)

However, all the adjudicators essentially agreed with the first tribunal’s preferred definition:

The dictionary definition of non-denominational introduced by the director [of the AHRC] is: “not restricted to or associated with a religious denomination.” Principal Schneider of Rundle College captured non-denominational as follows: “(O)ur view of that is that we are not promoting or specifically affiliated with any denomination, and in that sense, we are non-denominational.”

(Rundle College is also a private, non-denominational preparatory school. The students went there after they were not allowed to register at Webber Academy in their second year.)

Dr. Webber believed that if the school were required to permit the prayers on school property, it would be tantamount to asserting that religious observance belongs in a school setting. The first tribunal rejected this view, stating instead,

the Students [sic] requests were not aimed at establishing that their religion, or any religion, “belonged” in a school setting. Rather, in order to fulfill their religion, they were required to pray at designated times. The Students’ physical location was incidental to their religious beliefs. The Students’ requests of Webber Academy were purely a function of being at school during their mandatory prayer times. (AHRC 1, para. 99)

As for state neutrality with respect to religion, which the human rights legislation was meant to reflect, the second tribunal stated,

[T]he AHRA . . . by prohibiting discrimination on the basis of religion and by requiring the accommodation of religious differences, does not in any way promote or discourage one belief or non-belief at the expense of any other. The state does not seek to require Webber Academy to allow religious activities on its campus regardless of the circumstances. (AHRC 2, para. 208; my emphasis)

At the second tribunal, Webber Academy raised its own religious freedom, that is, its right of freedom from religion (AHRC 2, para. 156). The tribunal found that “this is a belief and practice that has a nexus with conscience and religion” (AHRC 2, para. 204).

The school maintained that the AHRA requirement that it allow the prayers contravened its right to freedom from religion under section 2(a) of the Charter. For the first time before the first CA panel, it claimed that it had a right under the Charter to “religious and secular neutrality” and the right of the educational community to a “secular, non-denominational education” (CA 1, para. 34). Webber Academy submitted that “[a]s a private school, Webber Academy has a Charter protected right to offer secular, non-denominational education consistent with the convictions of the parents who choose to send their children to Webber Academy.” (CA 1, para. 38)

The school also argued that to the extent it permits religious prayer and other religious acts in secular schools, the AHRA is inconsistent with the Charter. (A summary of Webber Academy’s Charter arguments in its Notice of Constitutional Question can be found at CA 1, paragraphs 33-39.)

The second CA concluded that it was possible to have religious practices on the school site without interfering with its non-denominational identity because doing so did not mean the school adopted those practices, the curriculum was not affected and the practices did not impinge on parents’ or teachers’ views.

 

2. Did the parents/students’ claim fall under the AHRA?

 

Under section 4 of the AHRA,

No person shall

(a) deny to any person or class of persons any goods, services, accommodation or facilities that are customarily available to the public, or

• (b) discriminate against any person or class of persons with respect to any goods, services, accommodation or facilities that are customarily available to the public,

because of the . . . religious beliefs . . . of that person or class of persons or of any other person or class of persons.

The parents’ human rights complaint was reliant on determining the fundamental question of what “services” were “customarily available” at Webber Academy and to whom (that is, who are “the public”?). The latter was easily determined: the public was the student body as the parties agreed (CA 2, para. 33). However, there was a dispute about the nature of the services Webber Academy had been making available to the students.

Webber Academy argued the service at issue is “prayer space”, which was not customarily available to the student body. All adjudicators rejected this position.

The second tribunal said, “if all students, without distinction, have a right to access quiet, private spaces to attend to bodily functions or to remedy feelings of anxiety, those spaces are customarily available to the public, the student body.” Furthermore,

[s]ome of these facilities are specifically related to educational programming and others are related to the needs of the students who are required to be on campus for the entire school day. These services include places to eat, washrooms, an infirmary and places for those who have anxiety and need a quiet place to do homework. (AHRC 2, para. 83)

Justice Poelman described “the services and facilities Webber Academy customarily made available to its public [as] non-denominational educational programs and other supportive services and facilities incidental to those programs”. (ABQB 1, para. 44) The second CA decision defined the services to include “quiet, private spaces”, which is what the students were seeking to perform their prayers (CA 2, para. 42).

Of course, Webber Academy cannot discriminate in providing or allowing access to these facilities on a basis prohibited under the AHRA.

Justice Poelman stated that “to define the services and facilities addressed in section 4 of the Act as proposed by Webber Academy – that is, to define them as identical to the specific “service” requested by the students –would make the provision almost meaningless” (QB 1, para. 46).

Webber Academy had maintained that the students had access to education, which was the service it provided. However, Poelman J. found that they did not have meaningful access to education if they could not pray in a manner consistent with their beliefs and they were being discriminated against in comparison to students who were able to express their religious beliefs in other ways (QB 1, para. 64).

It is not clear that Poelman J.’s analysis is correct, however. One can define “the services customarily available” as the classrooms, washrooms, quiet rooms and so on, all of which have a particular purpose; in other words, the purpose is part of the service. The question then is whether overt praying is one of those purposes. Justice Poelman gives as an illustration a school denying wheelchair access to facilities because it had never done so. But use of a wheelchair is a means by which the services are made available. Praying is not a means by which the services at Webber Academy are made available.

The school argued that religious observance was not the same as washroom or study use and there had never been space for religious observance. Justice Neufeld on appeal from the second tribunal to the QB held, “At best, the Academy has an arguable position to advance for the proposition that prayer space is distinguishable from space for attendance to other personal needs, but an argument is not enough to satisfy the appellate standard of review.“ (QB 2, para. 39) This was the only recognition that Webber Academy’s position had any merit at all among all the adjudicators.

On appeal from Neufeld J.’s decision, Webber Academy continued to argue that the tribunal should have determined the service at issue (praying on campus) and then whether it was customarily available to the public (the student body). If it had done so, the school argued, it would have concluded it did not have jurisdiction to hear the complaint.

The second Court of Appeal panel held otherwise, doing a bit of fancy footwork in considering this question. It did not accept Webber Academy’s position that it had never provided space for prayer on school property because “it is uncontroverted that the Students were able to perform prayers for more than two weeks when they first started attending the school” with the help of teachers and staff (CA 2, para. 44). While this is true, the teachers were not aware prayer was not allowed without Dr. Webber’s approval, a point the CA did not address.

In any event, only after two weeks were the students actually prohibited from using space for prayer (CA 2, para. 44). In addition, Dr. Webber would allow them to use space for prayer “provided they prayed silently without moving their limbs so no observer could know that prayer was occurring” (CA 2, para. 45). Thus the second CA concluded,

. . . it seems that Dr. Webber’s objection was based specifically on the manner of the Students’ prayers because the prayers involved the overt, physical movements of standing, kneeling and bowing. The adverse impact was not because of prayer or religion per se, but because of the type of prayer required by the Students’ religion. (CA 2, para. 45)

Importantly, from identifying generic educational facilities and particular facilities that Webber Academy provided prior to the request to provide space for prayer, the adjudicators elided (non-dedicated) prayer space with these other facilities: space for religious observance was akin to the other places identified as “services available to the public”.

Therefore, the tribunal had jurisdiction to hear the complaint.

 

3. What had the parents requested: dedicated or undedicated space to pray?

 

The school maintained that the parents had requested prayer space (this was taken to mean “dedicated” space), while the parents stated that they had requested only that their children be allowed to pray in a space “sufficiently large to allow the children to bow, kneel and stand safely” (AHRC 1, para. 15). The AHRC accepted the parents’ characterization of what they had requested. Justice Poelman found that there was evidence to support the tribunal’s finding that they were not seeking “dedicated prayer space” and that, indeed, “the students were willing to perform their prayers in any private place, such as an unused room or behind a tree outside” (QB 1, para. 38).

In its first decision, the CA noted both the tribunal and Poelman J. had proceeded on the basis that the complainants had not been requesting “prayer space”. However, the students did require space to perform the various actions constituting the prayer, even if this was not “dedicated” space. The Court stated:

Neither the Tribunal nor the chambers judge explained the significance to their analysis if the request was for prayer space. Clearly, the students required space to pray and Webber Academy was being asked to provide space, whether dedicated or not. The Tribunal’s conclusion appears at best confusing, and without further elaboration of its reasons, the conclusion is not reasonable. (CA 1, para. 56)

Because of this and another error relating to contradictory testimony about whether Ms Lever told the parents space was available, both of which Poelman J. had been prepared to overlook because they did not change the final outcome, the CA sent the case back to the AHRC for a rehearing (CA 1, para. 63).

The parties submitted an agreed statement of facts at the rehearing (AHRC 2, para. 15). However, the issue of whether the space requested was dedicated space or any space and what the school’s administrators told the students’ mothers and the students on visits to the school remained in dispute. One administrator testified that the term used was “reflection”, not “prayer”, and others indicated that while the matter of prayer was raised, the parents were told that the school was non-denominational and prayer was not permitted. The parents stated they used “prayer” but not “dedicated space” and that the director of admissions did not say that was not acceptable.

Tribunal 2 found, “It is clear that the request was for a place to pray. The request was for a nominal space, a quiet place where the students would be able to stand, kneel, bow and engage in silent recitation.” (AHRC 2, para. 81)

Whatever the initial dispute, however, subsequently, Dr. Nazar, after confirming with religious authorities that there was not an acceptable alternative to the prayers being undertaken as described, wrote to Dr. Webber making a formal request for accommodation in the form of “a nominal space being provided to perform prayers and that the students be excused from class for five minutes per prayer when these prayers coincide with their scheduled classes.” (AHRC 1, para. 36) By “nominal space”, Dr. Nazar did not refer to dedicated prayer space, but anywhere it was possible to perform the prayers, such as the corner of a classroom or office (AHRC, para. 36).

Nevertheless, regardless of whether the parents asked for “prayer space” or “dedicated prayer space”, Dr. Webber was opposed, maintaining that Webber Academy never provided prayer space. The second CA held this was not the case because the students had prayed for two weeks before Dr. Webber discovered they were doing so and prohibited it. It also concluded that the prohibition was discriminatory, not because of religion in itself “but because of the type of prayer required by the Students’ religion”, since Dr. Webber would have allowed praying on campus “provided [the students] silently without moving their limbs so no observer could know that prayer was occurring” (CA 2, para. 45). These actions were the feature distinguishing the students’ overt praying from the passive religious (or cultural) symbolism the school permitted, a distinction the adjudicators glossed over for the most part.

In short, Dr. Webber would have (it appears) allowed prayer if, like the religious symbols already permitted, it was “covert”. Even though the Sunni prayers were performed as innocuously as possible, they were not covert.

 

4. As a non-denominational school, is Webber Academy’s prohibition of overt praying on school property discriminatory and if so, is it justified?

 

Once praying, including overt praying, was held to be a “customarily available service” for the student body, it followed that Webber Academy discriminated against the students by not allowing them to perform their prayers on school property. The onus thus fell on the school to establish it was justified in its refusal of the service, that is, the prayer, under section 11 of the AHRA, which provides,

A contravention of this Act shall be deemed not to have occurred if the person who is alleged to have contravened the Act shows that the alleged contravention was reasonable and justifiable in the circumstances.

None of the adjudicators considered allowing the prayers to be an undue hardship for Webber Academy whose only reason for not permitting them related to its identity as non-denominational. There were no cost ramifications or inconveniences for anyone else, the students did not seek curriculum changes and nothing really changed in how Webber Academy operated. Indeed, people did not notice that the students were praying the first two weeks. The second tribunal concluded there was no evidence about how overt praying compromised this identity (AHRC 2, para. 142).

In its second decision, the CA noted,

We would observe that Webber Academy does not appeal the Tribunal’s finding that it prima facially discriminated against the Students by not permitting them to pray on campus. Nor does Webber Academy appeal the Tribunal’s conclusion that it had a duty to accommodate the Students because Webber Academy did not establish that it would suffer undue hardship by accommodating them. (CA 2, para. 26)

Webber Academy had argued that the proper test for its Charter claim was whether its (non-)religious belief was interfered with in a manner that was more than trivial or insubstantial (a Charter test), while the tribunal had applied an undue hardship test (a human rights test). The Court of Appeal said the evidence supported the same conclusion under both tests (CA 2, para. 61).

The second tribunal had concluded that Webber Academy had “a sincere belief respecting religion”. But because the school did not prohibit all forms of religious expression and its witnesses all testified that the praying did not interfere with their religious beliefs or those of their children, the CA at the second hearing concluded that

when the Tribunal conducted the Charter analysis and concluded that Webber Academy did not suffer any undue hardship, it is apparent that the Tribunal was, in effect, finding that Webber Academy’s freedom of religion was not interfered with in a manner that was more than trivial or insubstantial by accommodating the Students’ need to pray on campus. (ABCA 2, para. 61)

The CA observed, “Webber Academy’s non-denominational policy is not affected by providing the Students with access to quiet, private space to pray. In our view, it cannot reasonably be suggested that Webber Academy is endorsing any religion or religious practice, and should not be seen to be doing so, simply by providing such accommodation.” (CA 2, para. 66)

IS IT POSSIBLE TO BE A NON-DENOMINATIONAL OR SECULAR INSTITUTION THAT RECOGNIZES MULTICULTURAL PRACTICES AND INCLUSIVITY BUT DENIES OVERT RELIGIOUS EXPRESSION?

There is no doubt that to some extent the reasons Webber Academy gave to the parents for refusing to let the students pray reflected an outmoded way of viewing things. For example, according to Dr. Nazar, Dr. Webber (presumably) stated during a meeting with the parents and others, “While quiet meditation or other non-descript prayer may be permitted, prayer which requires conspicuous ‘bowing’ and/or ‘kneeling’ is too obvious and may make other students uncomfortable (AHRC 1, para. 36; my emphasis). He apparently also “suggested the Students could pray quietly in their head or quickly make a cross where no one is aware of the prayer and this would be acceptable” (AHRC 1, para. 33).

One of the disadvantages for the school was the lack of a written policy addressing prayer in the school. Rather, the situation was dealt with on an ad hoc basis and by Dr. Webber writing to the parents, explaining the school had never said it had prayer space and that it had received a legal opinion that it did not have to accommodate the students, since it did not accommodate other religious practices: as “a non-denominational school . . . this is an integral part of its character and it is legally entitled to remain so” (AHRC 1, para. 37).

Justice Neufeld pointed out that there are many schools that establish policies or mandates that exclude others: this is the nature of a pluralist society. However, it is important that the mandate be clearly established:

[T]his is simply good governance. The long –and no doubt expensive – history of litigation in this case is demonstrative of that. Clear and early communication of school policy is also fundamentally fair to prospective and existing students and their families. It is a worthwhile goal in itself. (QB 2, para. 69)

Webber Academy itself had also opened the door by allowing the wearing of turbans and other religious-related headwear. As Poelman J. observed,

Webber Academy, to its credit, adopted a public policy of welcoming young people of many faiths and cultures, and to exemplify its policy, published photographs of students with turbans and facial hair even though these practices contravened usual school policies.

For some reason, it drew the line at Sunni prayer rituals, conducted in private, in a place that was convenient to the school and the students from time to time. Its policy thus discriminated against the belief of the complainant Sunni Muslim students as compared, for example, to students who overtly averred their religious affiliation by forms of dress and grooming. There was no demonstrated hardship, let alone undue hardship, motivating this policy. (QB 1, paras. 122-123)

(Although it may not have mattered, the praying was not necessarily private, but could occur in a corner of the library, for example.)

Webber Academy had made a deliberate decision to allow exemptions from the regular uniform policy (or they were part of the policy set out in the handbook) and therefore it is noteworthy that their information said nothing about praying overtly. The CA in its second decision rejected Webber Academy’s effort to distinguish (for example) the wearing of religious headwear and overt praying:

We accept that Webber Academy wishes to establish a campus welcoming of all faiths, believing that religious practice and instruction should be addressed by parents and caregivers of students, outside of the school environment. However, the evidence establishes that Webber Academy’s “culture” currently accommodates religious differences amongst the student body by allowing exemptions to the dress code for Students who wear religious head coverings and facial hair, and allowing prayer provided that the prayer is silent and not overt. With regards to the dress code, Dr. Webber considered these accommodations as being reasonable because the head wear and facial hair is a demonstration of who that student is as a person. We consider such accommodations to be consistent with the goal of Webber Academy to be welcoming of all faiths and cultures.

Religion, for some, is also a demonstration of who they are as a person. Here, one of the Students testified that telling him to stop praying was equivalent to telling him to stop breathing. And both Students provided testimony about how fundamentally important their prayers were to them as people. We consider the provision of a quiet, private space for the Students to pray to be an analogous accommodation [to the passive religious symbols]. (CA 2, paras. 77-78)

Even the Christmas tree, admittedly associated with a Christian season even when placed in the Eaton Centre, but which is in itself a secular object, comes back to bite the school in the second CA decision. Dr. Webber had described the tree as a “Canadian cultural symbol”, not a religious symbol. There had been rare complaints about the tree, but the description of the tree as not religious was accepted. The CA did not accept it, however, because “[s]imply because the [Webber Academy] considers a Christmas tree to have no religious significance does not mean that others hold the same view . . . .” (CA 2, para. 79).

Generally, consideration of religious belief does not entail seeking the opinion of others: “claimants seeking to invoke freedom of religion should not need to prove the objective validity of their beliefs in that their beliefs are objectively recognized as valid by other members of the same religion” or, presumably as valid by members of other religions (Amselem, para. 43).

Would it have made any difference had the school not permitted turbans or hijabs, for example? After all, Poelman J. referred to a school that had been found to have discriminated under human rights legislation because it justified refusing a Sikh student the right to wear a turban on the basis that it was not consistent with its uniform policy; it did not matter that there were other schools the student could attend (QB 1, para. 121). Yet surely a uniform policy does not rise to the level of a claim to a secular – non-religious – identity.

For the most part, the adjudicators simply did not see non-denominational identity — non-religious belief — as worthy of the same respect as religious belief or affiliation or religious practice. Justice Neufeld was a bit of an outlier in this regard. He said, although the views of the witnesses for Webber Academy did not establish that their religion would be interfered with by allowing the prayers, “[i]t does not follow, however, that the educational philosophy underlying a private school, including its position on the practice of religion within the school, is not relevant or worthy of consideration when an assessment is made under s. 11 of the AHRA as to whether a discriminatory policy is reasonable and justified in the circumstances.” (QB 2, para. 66) Nevertheless, he reached the same conclusion as the other adjudicators.

Given the high reputation of Webber Academy, it is not entirely unreasonable that its concern that the school would attract other applicants who wanted to engage in their overt religious practices during the school day. The first tribunal did acknowledge that “if a very large percentage of a student body sought to fulfill religious beliefs in a very visible way, that may impact a school’s non-denominational identity,” but that is not the case here (AHRC 1, para. 103) The second CA had little time for this “floodgates” argument, referring to it as a concern that the school “will be inundated by a magnitude of similar requests now or in the future”, holding it is not relevant to accommodation for the two students now (CA 2, para. 82). (It is also possible that given the school’s response to the current request and Dr. Webber’s apparent lack of understanding of Sunni prayers, parents would be wary of applying to the school if their children would need to express overt religious beliefs.)

For the adjudicators, there was no difference between the provision of washrooms and the provision of space for anxious students to spend some quiet time and the provision (albeit unallocated) for overt praying. They also saw no difference between allowing students to wear a turban or hijab and putting up an ambivalent Christmas tree, on the one hand, and clearly religious overt praying, on the other. As the second tribunal suggested, “permitting grace before a meal” would also be something that would not interfere with a non-denominational environment (although it is not clear whether this would be undertaken by a student on their own or by the school, it is obviously just “natural” that grace would be acceptable) (AHRC 2, para. 207). lt also stated:

In this case, the legislation requires the respondent to accommodate the complainant’s request for a quiet, private place to pray in the same way it provides such places for persons with anxiety and in the same way that it allows exceptions to its dress code for religious and cultural reasons. (AHRC 2, para. 208)

These determinations were fatal to Webber Academy’s claim that being a non-denominational school meant there should be no overt praying on school property.

The first tribunal did “not accept that being a non-denominational school can reasonably be interpreted as meaning “no prayer or religious practice will be allowed.” (AHRC 1, para. 98) The second CA panel reinforced this position: “Webber Academy’s non-denominational policy is not affected by providing the Students with access to quiet, private space to pray” (CA 2, para. 66).

The answer to the question of whether it is possible to be a non-denominational or secular institution that recognizes multicultural practices and inclusivity but denies overt religious expression is probably it is not possible. As long as space for prayers are equated with the availability of non-religious services, it will follow that accommodation for overt prayers, albeit quiet, is required under human rights legislation. Similarly, once a school allows the wearing of passive religious symbols, which will in any event likely be required under human rights legislation, it will have forfeited any claim to limit its recognition of religion within its own practice of non-denominational identity.

CONCLUSION

Would it have been so terrible had Webber Academy simply allowed the students to pray in relatively unobtrusive places? If it had developed a policy that clearly laid out the circumstances of prayer and other overt religious practices? If it had compromised its own sense of non-religious belief, given what little was being asked of it?

Webber Academy was, of course, expected to compromise its own beliefs because, unless an institution is the government of Quebec, its secular non-religious beliefs are less protected in the broad sense. It or its students are not forced to perform overt prayers (indeed, compulsory prayers in public schools are no longer allowed), but they are forced to accept the performance of acts inconsistent with secularism.

Certainly, in this case, Dr. Webber’s stubbornness and lack of sensitivity contrasted sharply with the picture painted of the adverse impact on the students. In the context of whether the school would suffer undue hardship if it were required to accommodate the students, the first tribunal stated, “[t]he respondent’s standard of ‘no overt prayer or religious practice on campus’ essentially asks these Students to leave their religion ‘at the door’ while other students who do not have religious obligations during school hours are not so required.” (AHRC 1, para. 105)

The first tribunal related that “Dr. Nazar said that her son felt he had to choose religion over school”. And the tribunal, as well as the other adjudicators, described the impact on the students when they had to leave the property: Naman Siddique testified (in the tribunal’s words), “It was winter and so they would often come back to the school really wet and cold. If there was a blizzard outside or if it was too cold to pray Mr. Siddique testified that he and Mr. Amir would find a nook or cranny and pray. He felt that this was humiliating.” (AHRC 1, para. 34)

The reality is, under human rights legislation there is almost no way that a school can maintain a secular identity. Despite the adjudicators’ view that the prayers do not interfere with that identity, do not change the school into a non-denominational institution, they do change the atmosphere from one that does not recognize religious practice as part of its own culture. Furthermore, a school that seeks to present a secular face is almost forced to deny what is the multicultural reality of its students as represented by passive symbols that appear throughout our society if it does not want to be caught in a web of its own making and appear to be inconsistent. Such a denial is neither possible nor desirable, however.

Webber Academy illustrates that the law does not acknowledge that secularism or a non-denominational identity is more complex than allowed by most of the adjudicators in the case. Or, perhaps, the opposite is true: that it is as simple as the law allows religious expression to be: unlike religious adherents and their faith, however, believers in secularism are not free to define their own beliefs and practices.