A Port Alberni mother’s legal counsel argues that her daughter's Charter religious rights were infringed when sage smoke was burned at John Howitt Elementary School. (Denise Titian photo)
Is spiritual cleansing by burning sage a religious act? This was the central issue explored today on day four of the trial in which a Port Alberni mother is challenging the use of Indigenous cultural practices in the classroom.
Represented by Calgary-based Justice Centre for Constitutional Freedoms, Candice Servatius seeks an order that the Alberni School District prohibit religious practices during instructional time or assemblies, including Indigenous cleansings, ceremonies and prayer. The issue came to the B.C. Supreme Court after a smudging ceremony was performed by a Nuu-chah-nulth elder in September 2015 at John Howitt Elementary to cleanse a Grade 5 classroom of negative energy left over from the previous school year.
The fourth day of the week-long trial began with Brandon Langhelm of the Justice Centre arguing that smudging is “spiritual in nature, therefore religious.”
“Religious practice was exercised in the classroom, and mandatory,” he said. “That’s your classroom space, that’s your neutral government safe space.”
A foundation to the Justice Centre’s submission is that the cleansing performed in the John Howitt classroom broke the Canadian Charter of Rights and Freedoms, which requires that public schools not “favour nor hinder any particular belief, and the same holds true for non-belief.”
When asked by the judge about the distinction between learning about an Indigenous culture and being required to participate in it, Servatius’ lawyers responded that a line was crossed in 2015 when the Servatius child, who comes from an Evangelical Christian family, didn’t have the choice but to be immersed in the cultural practice in her classroom.
Jay Cameron, the other counsel from the JCCF, compared the smudging practice to forcing a Jewish student to learn about Italian culture by eating an Italian sausage – which often contain non-kosher pork.
Servatius’ submission to the court also mentions that, after expressing her concern to the school district about not being given adequate notice of a spiritual practice in her daughter’s classroom, another Indigenous cultural event occurred at a school assembly a few months later. On Jan. 7, 2016 an adopted member of a non-Nuu-chah-nulth Indigenous group performed a prayer and hoop dance for the school.
“She doesn’t believe in Aboriginal spirituality, that’s not something the state should force on her,” said Cameron of Servatius. “Where we’re drawing the line isn’t going to prevent the teaching of Aboriginal beliefs and culture.”
But many fear that the result of this trial could do just that, thereby reversing years of reconciliation efforts in public schools. Nuu-chah-nulth content has been integrated into the curriculum of multiple Vancouver Island schools to better reflect a significant proportion of their communities, as well as create a more comfortable learning environment that improves the graduation rates of First Nations students.
In his address to the court Keith Mitchell, who represents the Alberni School District, argued that after generations of the forced assimilation of First Nations under Canada’s residential school system, the introduction of things like smudging and the hoop dance are essential for Aboriginal students to thrive in public schools. Including these practices in the curriculum safeguards them from the “threat of tyranny of the majority.”
Mitchell also noted that the testimony of the Servatius girl stated she was coerced to remain in the class for the smudging, but teachers from the school have said that several students were permitted to stand outside as smoke spread in the room. He said the daughter’s account was not reliable.
“Her memory was being shaped by her parents,” said Mitchell, adding that “memory fades with the passage of time.”
But Justice Douglas Thompson criticized Mitchell’s questioning of the girl previously in the trial as being too misleading. The judge mentioned that a letter from John Howitt Elementary notifying parents of the smudging indicated potential issues.
“If it happened as described in this letter, I think there would be some difficulties,” he said. “If it happened as the teachers described, it’s a different kettle of fish.”
Mitchell also disputed a report from John Cox as unreliable evidence. Cox served as a pastor in the same church that the Servatius family currently attends, and where Candice Servatius’ husband is currently employed.
In his affidavit Cox writes that smudging goes against the Servatius’s Christian belief of spiritual purification.
“Mrs. Servatius and her daughter’s Christian beliefs require that they abstain from participating in religious, spiritual, or supernatural ceremonies that are contrary to, or not part of, their Christian faith,” wrote Cox. “Christians believe that Christ’s atonement is the only means of purification for sin, defilement and impurity.”
Defining Nuu-chah-nulth cultural practices as religious is being seen as a stretch to many in the Vancouver Island First Nations, as the concept of religion is something that was introduced with colonization of North America. It was noted on day four of the trial that there is no word for religion in the Nuu-chah-nulth language.
“The [Nuu-chah-nulth Tribal Council] has said that smudging is a cultural act, a way of life. Spirituality. It is not a religion,” said NTC President Judith Sayers, Kekinusuqs, in an email to Ha-Shilth-Sa. “No one can decide what is a religion except NCN themselves. Neither the court or any person can define our practices as a religion.”