Courthouse in Nanaimo. (News Bulletin file)

Courthouse in Nanaimo. (News Bulletin file)

Province argues in B.C. Supreme Court for smudging in schools, says it relates to curriculum

Hearing concludes in case regarding indigenous cultural practice in Vancouver Island classroom

A five-day hearing for a Supreme Court case that could determine whether indigenous smudging ceremonies can happen in public schools concluded today, Nov. 22, in a Nanaimo courtroom.

Candice Servatius, a Christian mother from Port Alberni, filed a petition against Alberni School District 70, claiming that her daughter’s religious rights were infringed on when forced to participate in a Nuu-chah-nulth smudging ceremony at John Howitt Elementary School in 2015. Servatius is seeking a court-ordered ban on the practice in schools across the province. The Attorney General of B.C. is also named as a respondent in Servatius’s petition.

Throughout the week, lawyers from all sides presented their arguments in front of Justice Douglas Thompson, who will be ruling on the matter.

RELATED: Student tells Nanaimo courtroom she wasn’t allowed to leave indigenous smudging ceremony

During Friday’s session, Katie Webb, legal counsel for the attorney general’s office, told the court that the province takes no position with regards to the accusation that the school board wronged Servatius or her daughter, but opposes any order that would ban smudging ceremonies in schools.

“The proposed order would be in conflict with aspects of the provincial curriculum requiring the incorporation of indigenous knowledge,” she said.

Webb said Canada has a history of assimilationist educational policy towards indigenous children, specifically the residential school system, which has contributed to the disparities between indigenous and non-indigenous students today. She said the court should consider the “broader” historical context when rendering a decision.

“It would be an error for this court to consider [the case] in isolation from that broader context,” she said, adding that evidence suggests that 14 to 15 per cent of students at John Howitt Elementary are indigenous.

RELATED: ‘Our culture is not a religion,’ indigenous educator tells Nanaimo court in case of smudging at school

In order to address the “horrors” of the residential school system and to make the public education system in British Columbia more inclusive for everyone, Webb said the province began integrating a new curriculum with a focus on indigenous learning in 2016. She said the smudging ceremony reflects the efforts made by the school to implement that curriculum.

“The incorporation of indigenous knowledge and world views in the educational program promotes a more inclusive educational experience in a culturally safe space, for indigenous and non-indigenous students alike,” she said.

In this case, according to Webb, there hasn’t been a constitutional challenge of the province’s curriculum and therefore it would be “unfair” for the courts to impose any such ban. She said the Canadian Charter of Rights and Freedoms does not require the school’s administrators to “achieve a perfect calibration” between charter values and a statutory mandate, but rather a “proportionate” balance.

Webb also said it isn’t clear how such an order would be enforced and that the term “religious practices” – which she said had been debated heavily during the hearing – is vague.

“In my submission, that very vagueness is exemplified by the fact that seven lawyers have spent five days in this room arguing about whether we can characterize these events as religious,” she said.

Speaking to the News Bulletin afterwards, Jay Cameron, legal counsel representing Servatius, said the province needs a “statutory mandate” in order to permit smudging ceremonies in schools without parental consent, but that it has no such mandate.

“There is no statutory mandate to cleanse small children against their will without their parents’ knowledge or permission,” he said.

Cameron said his client respects indigenous history culture and is supportive of people wanting to learn about it, but that the province went too far.

“The state crossed the line when it imposed a spiritual ceremony on her children without proper notice to her or the ability to consider opting them out,” he said. “Her position is that shouldn’t happen to anyone no matter what they believe.”

RELATED: Teacher says student was ‘happy’ to watch smudging ceremony at Vancouver Island school







nicholas.pescod@nanaimobulletin.com 
Like us on Facebook and follow us on Twitter and Instagram

 

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Chief Constable Norm Lipinski, Surrey Police Service. (Submitted photo)
Surrey chief constable says ‘comprehensive’ public engagement to be done this year

Norm Lipinski says Surrey Police Service has ‘good momentum’

Dyllan Petrin is charged related to an ongoing investigation in Surrey involving a kidnapping and assault that occurred in July, 2019. (Photo: Surrey RCMP)
Man arrested in connection to kidnapping, murder investigations: Surrey RCMP

Police say Dyllan Petrin was arrested in Vancouver

Crews work to clear the aftermath of a three-vehicle collision that occurred Wednesday morning (Jan. 20, 2021) at the intersection of 16 Avenue and 156 Street. (Tracy Holmes photo)
One person to hospital following three-vehicle collision in South Surrey

Police say it appears one driver went through intersection ‘as if it was not even there’

Surrey-raised forward Jujhar Khaira in action with Edmonton Oilers. (Photo: nhl.com)
Q&A: Surrey’s Jujhar Khaira credits parents for their hard work on his path to NHL

Port Kells-raised player talks about his journey to pro hockey with Edmonton Oilers

New United States Vice President Kamala Harris (left) and President Joe Biden (right) are sworn in at U.S. inauguration ceremonies Wednesday morning in Washington, D.C.. (Saul Loeb/Pool photos via AP)
Surrey Board of Trade highlights innovation, policy changes as new U.S. president sworn in

COVID-19, border re-opening among issues affecting city, SBOT says

Maj.-Gen. Dany Fortin, vice-president of logistics and operations at the Public Health Agency of Canada, speaks at a news conference on the COVID-19 pandemic in Ottawa, on Friday, Jan. 15, 2021. THE CANADIAN PRESS/Justin Tang
B.C. records 500 new COVID-19 cases Wednesday, 14 deaths

Outbreak at Surrey Pretrial jail, two more in health care

A woman writes a message on a memorial mural wall by street artist James “Smokey Devil” Hardy during a memorial to remember victims of illicit drug overdose deaths on International Overdose Awareness Day, in the Downtown Eastside of Vancouver, on Monday, August 31, 2020. THE CANADIAN PRESS/Darryl Dyck
B.C. paramedics respond to record-breaking number of overdose calls in 2020

On the front lines, COVID-19 has not only led to more calls, but increased the complexity

Eighteen-year-old Aidan Webber died in a marine accident in 2019. He was a Canadian Junior BMX champion from Nanaimo. (Submitted)
Inadequate safety training a factor in teen BMX star’s workplace death in 2019

Aidan Webber was crushed by a barge at a fish farm near Port Hardy

Southern resident killer whales in B.C. waters. Research shows the population’s females are more negatively influenced by vessel traffic than males. (Photo supplied by Ocean Wise Conservation Association)
Female orcas less likely to feed in presence of vessel traffic: study

Research the southern resident population raises concerns over reproduction capacity

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

(Black Press Media files)
Transport Canada not budging on enclosed deck rules, despite calls from BC Ferries union

There have been at least 23 cases of the U.K. variant detected in Canada, four of which are in B.C.

The Elk Valley Hospital is adapting to meet the needs of patients in the Elk Valley.
1-in-5 COVID tests coming back positive in and around Fernie, sparking concern

Dr Ron Clark of Elk Valley Hospital said one in five tests was returning positive for COVID-19

Ralliers gather in front of the Cityviews Village apartment building in Maple Ridge to protest attempts to evict low-income tenants by the building owner. (Ronan O’Doherty - The News)
Tenants protest pressure tactics by new landlord at Maple Ridge apartment building

Protest held in front of Cityviews Village on 223 St. Tuesday to rally against low-income evictions

Throughout December, RCMP conducted CounterAttack road checks as police worked to keep roads free of impaired drivers. (BLACK PRESS file photo)
‘You can’t make this stuff up’: Stories from the B.C. CounterAttack campaign

Amusing, yes, but a reminder impaired driving affects ability to drive and to make good decisions

Most Read