Defenders of Constitutional Freedoms? Law Firm representing Servatius in Smudge Trial pro bono speaks out

Denise Titian, December 11, 2019

The Justice Centre for Constitutional Freedoms takes on cases across Canada, including advocating for Bruce Spence, a Cree man who fought to keep a vehicle plate that Manitoba’s licencing agency claimed was offensive.The Calgary-based firm exists on donations and support from foundations. (Justice Centre for Constitutional Freedoms photo)

Port Alberni, BC — 

The BC Supreme Court case Servatius versus School District 70 wrapped up Nov. 22, and the parties will wait likely several weeks for a judge to make his ruling. The case centers around a Port Alberni elementary school classroom and a cleansing ceremony known as smudging.

A Native Education Worker at John Howitt Elementary School arranged for a Nuu-chah-nulth person to come to the school to perform a smudging, with the goal of cleansing the classrooms of any negative energy.

Port Alberni parent Candice Servatius, a practicing Christian, alleges that her children were coerced to participate in the smudge ceremony conducted by a Nuu-chah-nulth elder at the school. Court documents show that she had several contacts with the school over the fall and winter of 2015 and 2016, where she sought assurance from the district superintendent, Greg Smyth, that no religious activities would occur at the school without prior parental consent.

In January 2016 a hoop dancer, an invited guest at the school, performed at an assembly. Prior to his performance, he said a prayer in an Indigenous language. Servatius believes that her children should not have been exposed to the dancer’s prayer without prior parental consent.

Servatius contacted the Justice Centre for Constitutional Freedoms, based in Calgary, Alberta, who agreed to pursue the case in BC Supreme Court free of charge. Servatius is seeking an order that would prohibit religious practices during mandatory school time. This includes “religious or spiritual rituals, cleanings, ceremonies and prayer.”

Justice Centre President and lawyer John Carpay argued that Canadian courts have ruled decisively against public schools requiring children to recite the Christian Lord’s Prayer.

“Religious freedom means the right to practice one’s faith and also the right not to have a religion or religious practice imposed,” Carpay said in a Dec. 2 article on the Justice Centre’s website. “Courts have ruled that requiring children to pray amounts to imposing a religious exercise, contrary to the Canadian Charter of Rights and Freedoms.”

So, who is the Justice Centre for Constitutional Freedoms and why did they agree to represent Servatius pro bono? According to their website, the Justice Centre was founded in 2010 and considers themselves a voice for freedom in Canadian court rooms. “Justice Centre’s mission is to defend the constitutional freedoms of Canadians through litigation and education,” they say in their vision statement.

“We are trying to preserve personal liberties of the people from state intrusion,” said Jay Cameron, the lawyer for Candice Servatius. “I know I am unpopular with some in the Nuu-chah-nulth community but I don’t mean any offense.”

“We are arguing for a parent’s right…some of us would not want our children take part in Catholic ceremonies where they might be uncomfortable,” he said, adding that it is a parent’s right to be properly notified by the state when ceremonies of this nature happen during school hours.

Funded by donations, the Justice Centre website lists many interesting cases they’ve litigated, including the Spence versus Manitoba Public Insurance case, in which Bruce Spence, a Cree man, received a letter stating that his personalized license plate that said “NDN CAR” was being revoked seven years after he started using it. In February 2019 the Manitoba Public Insurance revoked his personalized license plate because it “may be considered offensive”.

“The Justice Centre provided pro bono legal representation to Mr. Spence, to challenge MPI’s decision to revoke the personalized plate,” states the Justice Centre website. They argued the case on the basis that by revoking his license plate, the MPI violated Spence’s freedom of expression as protected by section 2(b) of the Charter.

The Justice Centre negotiated an out-of-court settlement and MPI returned the personalized license plate to Mr. Spence.

“Mr. Spence’s personalized plate contains expression that is protected by the Charter from government censorship,” explained Justice Centre lawyer, James Kitchen.

The Justice Centre has also litigated a case in Ontario where a girl, in a classroom exercise, was asked what her gender was. She answered that she is a girl but was told the answer was wrong, that she was somewhere on a spectrum between a girl and a boy, but she was not a girl. Of course, this upset her.

“The government should not promote or compel children to participate in something like this,” said Cameron.

Dr. Judith Sayers, NTC president, argued that smudging is not properly defined as a religious act, but described it as a way of life, part of Nuu-chah-nulth culture. “Nuu-chah-nulth chiefs wanted to ensure that the message was given that smudging is part of our culture; it is not a religion,” she said in her written submissions to court.

Cameron argues that government has a duty of neutrality.

“For the state to compel or facilitate spiritual practices in the classroom crosses the line,” he said.

A court win for Servatius would mean that parents will get prior notification of spiritual or supernatural activities in the classroom, according to Cameron. 

“Mrs. Servatius has no objection to kids gathering on a voluntary basis for these things, we just want to push the state back into their lane (of neutrality),” he said.