B.C. mom loses appeal arguing Indigenous smudging ceremony infringed on children's religious freedom

A Vancouver Island mother who argued that an Indigenous smudging ceremony and prayer demonstration at her children's school violated their religious freedoms has been ordered to pay the court costs incurred by the school district after losing her appeal in the case.

The B.C. Court of Appeal dismissed the appeal brought by Candice Servatius, an evangelical Protestant, whose claim against the Port Alberni school district was struck down by the B.C. Supreme Court in 2020.

Appeal Court Justice Susan Griffin on Monday upheld the prior court's ruling that Servatius failed to establish that a smudging demonstration and a prayer performed by a hoop dancer interfered with her children's ability to act in accordance with their religious beliefs.

The controversy arose at John Howitt Elementary School in Port Alberni, B.C., where Servatius alleged her children were "compelled to participate" in "religious ceremonies" against "their conscientious and religious beliefs," according to the judge's decision published Monday.

The events in question, which occurred in 2015 and 2016, were demonstrations of local Indigenous culture and not expressions of the school district's beliefs or religious favouritism, the B.C. Supreme Court judge had ruled.

"After considering all of the evidence, the judge concluded that mere presence at the smudging demonstration and the prayer by the hoop dancer did not interfere with Ms. Servatius’s religious beliefs but, rather, were efforts to teach children about Indigenous beliefs," the appellate judge found.

The elementary school is within the traditional Nuu-chah-nulth territories, and approximately one-third of the students within the school district are Indigenous, according to the court.

"It is uncontroversial that public educational institutions need to be involved in reconciliation," the Appeal Court judge wrote.

"Significant efforts have been made to redress the historic legacy of schools being an unsafe place for Indigenous children and to help create better outcomes for Indigenous students."

In response to the judge's decision, Nuu-chah-nulth Tribal Council president Judith Sayers said Monday she was "very pleased that the court ruled that Ms. Servatius cannot impose her own beliefs on what an Indigenous person is experiencing when a demonstration occurs."

While satisfied with the decision, Sayers said the tribal council was "deeply disappointed" the issue was carried all the way to the province's highest court before it was resolved.

"This just shows the challenges we still have to overcome in presenting our worldviews and way of life," Sayers said. "It should not have gone to these lengths for tolerance and understanding in the education system." 

MOM ORDERED TO PAY COURT COSTS

After dismissing the mother's case in January 2020, the Supreme Court judge ordered both Servatius and the school district to pay their own costs.

But the Appeal Court judge set aside that decision and instead allowed a cross appeal from the school district after it was revealed that the mother's case was being funded by the Calgary-based Justice Centre for Constitutional Freedoms (JCCF).

"In her post-appeal written costs submission, Ms. Servatius disclosed, for the first time, that the JCCF was funding her fees and disbursements in the litigation, as well as agreeing to help her pay any award of costs by agreeing to fundraise for her if costs were awarded against her," Griffin wrote.

"Although vaguely described, there is no reason to believe that the JCCF, a frequent litigant, does not have the resources to make good on its promise and so this was in effect an agreement by the JCCF to use its resources to indemnify Ms. Servatius for any award of costs against her."

The judge ordered Servatius to pay the school district's costs for both the Supreme Court and Appeal Court hearings.