Hall V Powers

Case Name:
Hall (Litigation guardian of) v. Powers

Between
George Smitherman in his capacity as litigation guardian of
Marc Hall, plaintiff, and
Michael Powers and the Durham Catholic District School Board,
defendants

Intervenors: (Rule 13.02 - non-parties)

Canadian Foundation for Children, Youth and the Law

The Coalition in Support of Marc Hall

Ontario Catholic School Trustees' Association

Ontario English Catholic Teachers' Association

[2002] O.J. No. 1803
Court File No. 02-CV-227705CM3
Also reported at: 59 O.R. (3d) 423

Ontario Superior Court of Justice
Whitby, Ontario
R. MacKinnon J.

Heard: May 6-7, 2002.
Judgment: May 10, 2002.
(61 paras.)

Counsel:

David L. Corbett and Jonathan W. Strug, for the plaintiff.
Peter D. Lauwers, for the defendants.
Cheryl Milne and Sara Copley, for The Canadian Foundation for Children,
Youth and the Law.
R. Douglas Elliott and Victoria Paris, for The Coalition in Support of Marc
Hall.
Paul Rouleau and David Stratas, for The Ontario Catholic School Trustees'
Association.
Paul J.J. Cavalluzzo, for The Ontario English Catholic Teachers'
Association.

¶1 R. MacKINNON J.:— The plaintiff seeks an interlocutory injunction restraining
the defendants from preventing his attendance with his boyfriend at his high-school Prom
on May 10, 2002.

The Parties/Background:

¶2 The plaintiff is a Roman Catholic 17 year old Oshawa high school student
currently attending grade 12 at Monsignor John Pereyma Catholic Secondary
School. This has been his school since grade nine and, prior to that, he attended a
Catholic elementary and junior high school. Mr. Hall has identified himself to his
parents, his friends and his school peers as having a homosexual orientation.

¶3 The school holds an annual Prom which is an off-site party and dance held for and
in honour of the grade 12 students. It is a significant social event in the lives of those
students as it marks the end of their formal education at that school. It is a school event,
organized by a committee of students but supervised by school teachers who ensure
security. The grade 12 students this year range in age from 16 to 18 years, and none are
married. All students wishing to buy tickets to the Prom must submit for school approval
the names of those with whom they intend to attend. The school requires this information
for the purposes of knowing who is present at the function, of having contact information
for those in attendance, and of preventing known troublemakers from attending.

¶4 About a year ago, Mr. Hall first raised with one of his teachers his wish to bring
his boyfriend to the Prom this spring. He understood that his teacher would be discussing
his request with the school Principal. His teacher counselled him that he must follow the
Church's teachings guided by his individual conscience. His teacher did not tell him
whether he should or should not bring Mr. Dumond, who has been his boyfriend for
about one year, as his date. On February 25, 2002 Principal Powers denied Mr. Hall
permission to attend the Prom with his boyfriend. The Principal reasoned that interaction
at a Prom between romantic partners is a form of sexual activity and that, if permission
were granted to Mr. Hall to attend the Prom with his boyfriend as a same sex couple, this
would be seen both as an endorsement and condonation of conduct which is contrary to
Catholic church teachings. On April 8, 2002 the School Board refused to reverse the
Principal's decision.

¶5 The defendant Board exists to provide education in its schools in a manner
consistent with the teachings of the Roman Catholic Church. The defendants argue that,
charged as they are with the statutory responsibility of managing this Catholic school,
their approval of Mr. Hall's request would have been contrary to their understanding of
Catholic beliefs. They also submit that the plaintiff's motion should be dismissed both
because their decisions are both protected by section 93 of the Constitution Act, 1867 and
an appropriate exercise of freedom of religion under section 2(a) of the Charter.

The Intervenors

¶6 The intervenor, Canadian Foundation for Children, Youth and the Law, is an
organization promoting the rights of children and youth. It supports Mr. Hall in his
position, arguing that children and youth in Canada hold rights as individuals in and of
themselves, not at the discretion or through the benevolence of their parents or those
standing in their place. It points out both that schools have a duty to foster a respect in
their students for the constitutional rights of all members of society and that The Ontario
Schools Code of Conduct (promulgated under Section 301 of the Education Act)
mandates that all school members treat others fairly regardless of "... religion, gender,
sexual orientation, age or disability".

¶7 The Coalition in Support of Marc Hall is a large and diverse group of
organizations including the Public Service Alliance of Canada, Canadian Auto Workers
Union, Canadian Aids Society, Canadian Federation of Students, and The Coalition for
Lesbian and Gay Rights in Ontario. It supports Mr. Hall arguing, inter alia, both that the
Board has clearly discriminated against him in violation of his s. 15 Charter rights and
that the Board's actions are not justified under s. 93 of the Constitution Act, 1867.

¶8 The Ontario Catholic School Trustees' Association is a group comprised of
members from twenty-nine Catholic Ontario Separate School Boards responsible for
educating over 600,000 Ontario students. It supports the Board's position arguing, inter
alia, that the Principal's decision was not personally targeted against the applicant or
against homosexuals. It analogizes that if a student in the school tried to bring a married
person as a date to the Prom, that activity would not be permitted either as it is considered
immoral in the eyes of the church and could not under any circumstances culminate in the
sacrament of marriage. It urges that it is in the public interest to uphold the decisions of
the Principal made in the exercise of his statutory duties.

¶9 The Ontario English Catholic Teachers' Association is a professional association
which has, since 1944, represented separate school teachers in Ontario. This
Association's members are responsible for the front line work in ensuring, among other
matters, that all students, including those with gay and lesbian orientation, are treated
with respect, dignity and fairness. It does not take a position on the ultimate granting of
an injunction but rather confines its participation to the first step of the legal test for an
injunction - the question of whether there is a substantial legal issue to be tried. It
supports Mr. Hall in this regard.

¶ 10 The submissions of all Intervenors were at all times full, fair, focused and of
considerable assistance to the court.

The Test for Granting an Interlocutory Injunction

¶ 11 The Supreme Court of Canada in RJR-Macdonald Inc. v. Canada (1994), 111
D.L.R. (4th) 385 (S.C.C.) at 400 mandated a three stage test to apply when considering
whether to grant an interlocutory injunction. As applied to the case at bar, that test can be
summarized as follows:

A. Is there a serious issue to be tried? The court must be satisfied that
the applicant has demonstrated there is a serious issue to be tried in
the sense of a case with enough legal merit to justify the
extraordinary intervention of the court in making the order sought
prior to trial.
B. Will the applicant suffer irreparable harm if the interlocutory
injunction is not granted?
C. Does the balance of convenience favour granting the relief? This
can also be stated as follows - which party will suffer greater harm
from the court granting or refusing to grant the interlocutory remedy
pending a trial decision on the merits?

¶ 12 The test should not be considered as a step by step formula where each factor is
to be considered as an obstacle which must be overcome before moving on to the next
obstacle. Rather the preferable approach is for all three factors to be considered and the
collective impact of those factors determines the result.

¶ 13 In both his written and oral submissions, counsel for the plaintiff has
demonstrated to me that Mr. Hall's case is neither frivolous nor vexatious. There is
Ontario authority for a proposition that a plaintiff bears a higher onus in cases where the
granting of the injunction in effect gives him the ultimate relief which is sought. This is
not the case at bar. It is true that Mr. Hall's immediate interest is in being permitted to
attend this Friday's Prom with his boyfriend. However, the substantive thrust of his
claims for trial, as pleaded, are for trial court declarations that his Charter rights have
been violated. Included among the matters in issue for an eventual trial, if pursued, will
be the question of whether the School Board's decision falls within its power to make
decisions with respect to denominational matters and thus are protected under section
93(1) of the Constitution Act, 1867 and whether the Board's decision violates individual
human rights protected under the Canadian Charter of Rights and Freedoms, including
the right to be free of discrimination on the basis of sexual orientation and age.

Applying the Injunctive test

A. Serious Issue

¶ 14 For reasons that follow, I am satisfied that the applicant has demonstrated that
there is a serious issue to be tried - in the sense of a case with sufficient legal merit to
justify the extraordinary intervention of this court in making the order sought before
trial. In my review I was required to consider in a preliminary way many of the issues
that may ultimately be for determination by the trial court after argument and in much
greater detail and with much greater time for reflective thought.

Section 15 of the Charter

¶ 15 School is a fundamental institution in the lives of young people. It often provides
the context for their social lives both in and outside of school hours. Recreational

activities such as sports, clubs and dances, which are important in the development of a
student's development, are often experienced within the school setting. Exclusion of a
student from a significant occasion of school life, like the school Prom, constitutes a
restriction in access to a fundamental social institution.

¶ 16 When, as here, a publicly funded school Board establishes and implements
policies of general application, it is subject to the Charter. Both the Principal and the
Board purported to act on a matter of policy to enforce Roman Catholic teachings and in
doing so have promulgated a policy of general application applicable to any students
wishing to bring a same sex date to the Prom. This engages Section 15 of the Charter
which provides that:

Every individual is equal before the law and has the right to equal
protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on ... religion, sex, or age. ...

¶ 17 The Supreme Court of Canada hold in Egan v. Canada, [1995] 2 S.C.R. 513 at
600 that:

The historic disadvantage suffered by homosexual persons has been widely
recognized and documented ... They have been discriminated against in
their employment and their access to services ... The hatred which some
members of the public have expressed towards them has forced many
homosexuals to conceal their orientation.

¶ 18 The social history evidence before me clearly discloses that gay men and lesbian
women have been treated as less worthy and less valued than other members of society.
Canadian law has accepted that homosexuality is not a mental illness or a crime but
rather an innate characteristic not easily susceptible to change. Stigmatization of gay
men rests largely on acceptance of inaccurate stereotypes - that gay men are mentally ill,
emotionally unstable, incapable of enduring or committed relationships, incapable of
working effectively and prone to abuse children. Scientific studies in the last fifty years
have discredited these stereotypes.

¶ 19 In my view, the clear purpose of Section 15 is to value human dignity in a free
society where difference is respected and equality is valued. The praiseworthy object of
Section 15 of the Charter is to prevent discrimination and promote a society in which all
are secure in the knowledge that they are recognized as human beings equally deserving
of concern, respect and consideration.

¶ 20 In Law v. Canada, [1999] 1 S.C.R. 497 at 529, Iacobucci, J. summarized the
purpose of section 15(1) as follows:

It may be said that the purpose of section 15(1) is to prevent the violation
of essential human dignity and freedom through the imposition of
disadvantage, stereotyping, or political or social prejudice, and to promote

a society in which all persons enjoy equal recognition at law as human
beings or as members of Canadian society, equally capable and equally
deserving of concern, respect and consideration. Legislation which effects
differential treatment between individuals or groups will violate this
fundamental purpose where those who are subject to differential treatment
fall within one or more enumerated or analogous grounds, and where the
differential treatment reflects the stereotypical application of presumed
group or personal characteristics, or otherwise has the effect of
perpetuating or promoting the view that the individual is less capable, or
less worthy of recognition or value as a human being or as a member of
Canadian society. (emphasis mine)

¶ 21 In Miron v. Trudel, [1995] 2 S.C.R. 418, McLaughlin J. (as she then was)
wrote:

These grounds (of discrimination) serve as a filter to separate trivial
inequities from those worthy of constitutional protection. They reflect the
overarching purpose of the equality guarantee in the Charter - to prevent
the violation of human dignity and freedom by imposing limitations,
disadvantages or burdens through the stereotypical application of presumed
group characteristics rather than on the basis of individual merit, capacity
or circumstance.

¶ 22 Counsel for Mr. Hall argues that one's right to be protected from discrimination
means the right to be different, to be accepted as different, and to have equality of
treatment that embraces and honours that difference.

¶ 23 The Church's Catechism, in three paragraphs, first declares that homosexuality is
contrary to natural law and can under no circumstances be approved, but goes on to direct
both that homosexuals should be accepted with respect, compassion, and sensitivity and
also that every sign of unjust discrimination should be avoided. There is, on the material
before me, a substantial diversity of opinion within the Catholic community regarding the
appropriate pastoral care and the practical application of Church's teachings on
homosexuality. This is apparent from various initiatives to develop resources: to provide
Catholic educators with appropriate responses to gay and lesbian youth; to educate both
Catholic students and the broader school community about difficulties faced by
homosexual youth in Catholic high schools; and to develop discussion themes to build
respect for homosexuals. There is no evidence of a single position within the Catholic
faith community about what constitutes the most appropriate pastoral response to this
issue. Although the Catechism states that "homosexual acts are intrinsically disordered,"
the material before me demonstrates a significant range of Catholic opinion both on what
constitutes a homosexual act and also on whether only homosexual genital contact is
prohibited or whether other kinds of physical acts are also prohibited.

¶ 24 "Dating" is an accepted aspect of social interaction whether it be for fun, for
romance, for personal growth, for interaction skills, or for seeing oneself as an individual

accepted in the social milieu of other persons. Mr. Hall is clear that he and Mr. Dumond
are partners in a relationship of some duration, just as some of the others at the dance will
be there with their partners in a relationship of some duration.

¶ 25 There is clearly a courtship aspect to the Prom but that event is not solely about
physical intimacy leading to sex. Many students, some without regular boyfriends or
girlfriends, attend a Prom to have fun with their friends and to dance. They are at
differing phases of sexual experience. The school does not inquire into whether those
students attending the Prom have had sex with their dates in the past, whether they intend
to do so on Prom night, or whether they intend so thereafter. These are private matters
appropriately left to the students themselves. Future decisions about marriage and
children will have no connection with attendance at the grade 12 Prom. The Prom is not
a transition into marriage or pre-married life. Rather, it is clearly a celebratory cultural
and social event of passage from high school.

¶ 26 It is important to note that the Prom in question is not part of a religious service
(such as a Mass), is not part of the religious education component of the Board's activity,
is not held on school property, and is not educational in nature.

¶ 27 The Supreme Court of Canada in Trinity Western University v. British Columbia
College of Teachers, [2001] 1 S.C.R. 772 held that "The freedom to hold beliefs is
broader than the freedom to act on them." and that "Neither freedom of religion nor the
guarantee against discrimination based on sexual orientation is absolute". At the heart of
the Trinity Western (supra) decision lies a distinction between holding a discriminatory
view and actively discriminating against someone. In Canada we are permitted to hold
views that are in conflict with public policy, but we are not permitted to act upon
discriminatory views in prescribed fields of endeavour when the result is discriminatory
treatment of others. Counsel for Mr. Hall argues that it is inconsistent to accept people as
homosexuals and, at the same time, to suppress all activity connected to their
homosexuality. He characterizes the position of Mr. Hall's Church as "It's okay to be gay
- just don't act gay".

¶ 28 The School Board points out that Catholic schools are not the same as non-
denominational public schools. The education that takes place there is one of the central
means by which the Roman Catholic Church accomplishes it's mission - the nurturing
and development of young persons in a Christian community so that Catholic values,
Catholic life and Catholic faith become integrated in their students' lives. The material
demonstrates that a Catholic education involves the development and inculcation of
knowledge and values as viewed from the perspective of the religious believer. Publicly
funded Catholic schools both develop particular guidelines, texts and curricula and also
employ teachers who are expected to teach the Catholic faith. Religious celebrations take
place at these schools. Catholic School Boards are exclusively composed of Catholic
trustees elected by Roman Catholic School supporters and are permitted to take matters
of religious faith into account in hiring teachers and in setting and enforcing policy. A
Principal's duties under the Education Act including the duty to maintain discipline are

carried out with a Catholic orientation. But does this constitutionally protected activity
permit a Principal to impinge on a student's freedom of expression and equality rights?

¶ 29 The evidence filed by the defendants demonstrates that the sacrament of marriage
in the Roman Catholic Church is central to a Roman Catholic understanding of sexual
bonding and sexual conduct. Courtship and romantic liaisons progressing towards
marriage are permitted but premarital sex is not approved. The Board argues that in
developing and applying policy, Catholic schools must apply the basic convictions of
their faith including those concerning courtship and romantic liaisons. But is dancing a
sexual conduct? Is dancing at the Prom a form of sexual activity leading to marriage?

¶ 30 Bishop Meagher has Archdiocese hierarchical responsibility, inter alia, for
Durham Region. One of his designated religious duties is to interpret the teachings of the
church. It was the Bishop's clear view that giving permission to a 17 year old boy to take
another male as his date to the Prom would be giving a "clear and positive approval not
just of the boy's `orientation' but of his adopting a homosexual lifestyle". In the Bishop's
view, matters had developed to a point where a "concerted effort" was being made in this
case to influence the Catholic school system to approve of a homosexual lifestyle. His
position was that "acceding to Marc Hall's demand would have given his intended
behaviour the imprimatur of both the Principal and the School Board, contrary to the
teachings of the Catholic Church". He asserted that the Bishop's view was authoritative
and determinative of the matter. The Board's decision was taken by those informed by
Catholic principles and, it was argued, was well within the sphere of denominational
decision-making protected by section 93. The Bishop's affidavit asserted that it was "an
authentically Catholic position". But the evidence before me indicates it is not the only
Catholic position nor is there any evidence that it is the majority position. Nevertheless,
where such a decision is made bona fide and within protected sphere, is it insulated from
Charter scrutiny?

¶ 31 It is not the task of a civil court to direct the Principal, the Board, the Roman
Catholic Church or its members, or indeed any member of the public as to what his or her
religious beliefs ought to be. The separation of church and state is a fundamental
principle of our Canadian democracy and our constitutional law. Debates as to what the
Catholic faith should require on the issue of homosexuality ought generally to be
resolved within the Roman Catholic Church and not in a court of law. But I find that Mr.
Hall is entitled in this court to question the correctness of the statement in the defendant's
materials that Catholic teachings and Board policy in fact proscribe "homosexual
behaviour" and a "homosexual lifestyle" so as to justify prohibiting Mr. Hall from
attending his Prom with Mr. Dumond. If individuals in Canada were permitted to simply
assert that their religious beliefs require them to discriminate against homosexuals
without objective scrutiny, there would be no protection at all from discrimination for
gays and lesbians in Canada because everyone who wished to discriminate against them
could make that assertion.

¶ 32 It seems to me that it is clearly open to a trial court to find that, in coming to the
decision that he did, Principal Powers unjustly discriminated against Mr. Hall in violation

of his section 15 Charter rights. It is open to a trial court to find that Mr. Hall was not
treated equally because, unlike his heterosexual student peers, he is not free to bring the
date of his choice and to dance with him at the Prom.

¶ 33 In coming to the conclusion that I have that there is a serious issue to be tried, I
note that the Ontario Court of Appeal in Reference Re An Act to Amend The Education
Act 53 O.R. (2d) 513 at 576 wrote:

This conclusion does not mean, and must not be taken to mean that
separate schools are exempt from the law or the Constitution. Laws and
the Constitution, particularly the Charter, are excluded from application to
separate schools only to the extent that they derogate from such schools as
Catholic (or in Quebec, Protestant) institutions. It is this essential Catholic
nature which is preserved and protected by Section 93 of the Constitution
Act 1867 and by Section 29 of the Charter. The courts must strike a
balance, on a case by case basis, between conduct essential to the proper
functioning of a Catholic school and conduct which contravenes such
Charter rights as those of equality or Section 15 or of conscience and
religion in Section 2(a). (emphasis mine)

Section 93 of The Constitution Act, 1867

¶ 34 Ordinarily, a finding of a section 15 Charter breach, or the likelihood of same,
would be a sufficient basis to pass the first leg of the injunctive test. However, in the
case at bar the defendants are a Catholic School Principal and Board. Accordingly, the
protections under Section 93 must be considered in order to determine whether the
violations of the plaintiff's Charter rights were justified. The onus of demonstration is on
the defendants.

¶ 35 Section 93 provides as follows:

In and for each Province the Legislature may exclusively make Laws in
relation to Education, subject and according to the following Provisions:

(1) Nothing in any such Law shall prejudicially affect any Right or
Privilege with respect to Denominational Schools which any
Class of Persons have by Law in the Province at the Union.

¶ 36 The Ontario Court of Appeal in Ontario English Catholic Teachers Association
(O.E.C.T.A.) v. Dufferin-Peel Roman Catholic Separate School Board [1999] O.J. No.
1382 held at paragraph 19 that:

There are two stages to the constitutional analysis of the interpretation of s.
93(1). Initially, one must determine whether there was a right or privilege
enjoyed by a particular class of persons by law at the time of
Confederation. If so, one must go on to the second stage of the analysis

which is to determine whether the legislation at issue prejudicially affects
this right or privilege: Quebec Association of Protestant School Boards v.
Attorney-General of Quebec (1993), 105 D.L.R. (4th) 266 (S.C.C.) at
306-307. Within the first stage of the analysis concerning s. 93(1) one
must answer two questions. First, what was the extent of the power of the
Trustees at the time of Confederation? Second, in what measure is this
power a "Right or Privilege with respect to Denominational
Schools": Greater Montreal Protestant School Board v. Quebec (Attorney
General), [1989] 1 S.C.R. 377 at 405.

¶ 37 The clear purpose of Section 93 was to provide a firm protection both for Roman
Catholic education in the Province of Ontario and for Protestant education in the
Province of Quebec. This section was a fundamental part of the Confederation
compromise.

¶ 38 S. 29 of the Charter provides that:

Nothing in this Charter abrogates or derogates from any rights or privileges
guaranteed by or under the Constitution of Canada in respect of
denominational, separate or dissentient schools.

¶ 39 Adler v. Ontario, [1996] 3 S.C.R. 609 holds that it is only the right guaranteed
under section 93 and the existence of section 93 itself which are immunized from Charter
scrutiny. This does not mean that the Charter does not apply to separate schools
generally. The Supreme Court of Canada endorsed a purposive approach to the section
93 test, whereby the focus is on the broader purposes and intentions of both the
Legislature and Legislation in 1867.

¶ 40 In Reference Re Bill 30, An Act to Amend the Education Act (Ontario), [1987] 1
S.C.R. 1148 Wilson, J. held that section 93 acted to freeze the protected rights of Catholic
schools as at 1867. There was no explicit statutory right of either Catholic Boards or
common school Boards in 1867 to hold school dances or to control those who could or
could not attend those dances. The current Education Act of Ontario in its co-
instructional activities sections now give Boards that explicit authority.

¶ 41 The defendant Board argues an implicit or inherent right to regulate those who
can attend school dances based on denominational concerns under the generic umbrella
of school management. "Management" in its ordinary sense is broad enough to
encompass absolutely anything and everything that happens in a school system. If the
Board's view was correct, then section 93 would mean that Catholic schools had
unfettered authority to do whatever they like on any matter. That is not the law. In the
Reference re Bill 30 case (supra) Wilson, J. held that Catholic schools' powers of
management included the duty to provide education to those of school age and the limited
power to determine the subject matter taught. Catholic schools today remain subject to
inspection by provincial officials and to direction from the Ministry of
Education. "Management" within the meaning of the Scott Act (the educational

legislative statute in effect in Ontario in 1867) did not contemplate the regulation of
students in their extra-curricular activities. The current Education Act is highly detailed
in that regard. In 1867, homosexual activity was viewed both as a crime and as a
sickness. Today it is viewed as neither. Canadians' understanding of human behaviour
and of its people has changed over the last 135 years.

¶ 42 It is obvious that the educational system of this Province is not frozen in
time. Educational methods change. There is clear authority for the proposition that
section 93 does not purport to stereotype the Ontario educational system as it existed in
1867 - rather it expressly authorizes the provincial legislature to make laws regarding
education, subject to the provisions of section 93. It is difficult to imagine how the
legislature of Ontario can effectively exercise that power unless it has a large measure of
freedom to meet new circumstances and needs as they arise. Having said that, I keep in
mind that courts must be cautious not to allow so much breadth so as to create ambiguity
which can distort the true meaning of the Constitutional section. It is clear that the
purposive approach to statutory interpretation is not to be used to expand the original
purpose of the protecting section.

¶ 43 The proper approach is to look at the rights as they existed in 1867 but then to
apply 2002 common sense. In 2002, a School Board's legal authority (whether public or
separate) is part of our provincial public educational system which is publicly funded by
tax dollars and publicly regulated by the province. The United States Supreme Court in
Bob Jones University v. United States, 461 U.S. 574 recognized that the State has a right
to insist that public funds will not be used to subsidize discriminatory practices, even
where it is asserted that those discriminatory practices are founded on sincere religious
beliefs. In Trinity Western, (supra), our Supreme Court acknowledged the right of
provincial governments to insist on a policy of non-discrimination including non-
discrimination on the basis of sexual orientation in provincially regulated schools in
British Columbia. Unlike the private university in that case, the defendant Board is, in
law, a religious government actor. Even schooling that is not funded by the government
must still respect the right of the province to insist on certain minimal requirements in the
education of all students.

¶ 44 The question is this: Does allowing this gay student to attend this Catholic high
school Prom with a same sex boyfriend prejudicially affect rights with respect to
denominational schools under section 93(1) of the Constitution Act, 1867?

¶ 45 I find the answer to this question is "no" because, among other reasons, the
evidence demonstrates a diversity of opinion within the Catholic community on pastoral
care regarding homosexuality such that, it is not clear what conduct is necessary to ensure
that rights with respect to denominational schools are not prejudicially affected.

¶ 46 In addition, it is my view that Principal Powers' decision was not justified under
section 93, both because the specific right in question was not in effect at the time of
Union in 1867 and because, objectively viewed, it cannot be said that the conduct in
question in this case goes to the essential denominational nature of the school.

¶ 47 The defendants have not demonstrated to me that the section 93 protection
justifies a section 15 Charter breach. I am not satisfied that regulation of this particular
conduct is necessary for the preservation of the school's denominational nature. I am not
satisfied that the right was in effect at the time of Union in 1867.

Section 1 of the Charter

¶ 48 This section guarantees our rights and freedoms as set out in the Charter subject
only to such reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society. Under the section 1 analysis, the court must consider whether
the school restriction on Mr. Hall evidences a rational connection to a pressing and
substantial objective, whether it minimally impairs his rights, and whether it is
proportionate.

¶ 49 Nowhere in the materials do I find documentary evidence that establishes that
same sex dancing is sinful or sexual under Catholic dogma. Rather, the catechism calls
for non-discrimination and mentions nothing about same sex dancing. In my view, a
fully informed ordinary citizen would consider public dancing, fully clothed under the
supervision of teachers, to be chaste behaviour. At public events, family members often
dance together with one another without religious objections. Though dancing can be
sexually expressive, it is not necessarily so. It cannot fairly be equated with having
sex. I keep in mind that the role of a school is to enlighten and guide students - not to
control their private thoughts or behaviour. I am not persuaded by the courtship
distinction made by Dr. Cere and, in my view, there is no demonstrated rational
connection in law. Even if I were wrong and the Bishop does have authority to articulate
new, previously undocumented doctrine, it has not been done here with minimal
impairment to Mr. Hall's rights. School rules against inappropriate behaviour can be
fairly enforced against all students without banning Mr. Dumond. The Board could have
counselled Mark on his Church's teachings about the sinful nature of all premarital sexual
activity (heterosexual or homosexual) and about the sinful nature of homosexual genital
contact. Like the B.C. College of Teachers in the Trinity Western case (supra), the Board
failed to consider less restrictive options that would have given due weight to the
plaintiff's rights. No objective observer would then have been confused about the Board's
public position on homosexuality and no reasonable, fully informed Canadian would then
have understood the Board to be condoning or promoting the proscribed activity. The
Board's decision, therefore, does not just minimally impair Mr. Hall's rights.

¶ 50 Finally, there is the question of proportionality. In order to ensure that education
is properly delivered in its schools, the Board has a number of measures at its disposal to
immerse its students in the Catholic faith - including control over religious curriculum
and over the Catholic character of its employed teachers. If Mr. Hall is permitted to
attend the Prom as he asks, it cannot fairly be said that any infringement of the Board's
section 93 and Charter rights and the rights of members of the Catholic faith community
are permanent. By comparison, Mark Hall is permanently refused his choice of Prom
date outright on the grounds of his sexual orientation. The restriction on Mr. Hall's
activities is not proportionate. There is no section 1 defence made out.

B. Irreparable Harm

¶ 51 This term refers to harm that cannot be properly compensated in damages. If Mr.
Hall is excluded from participation on May 10, 2002, he will forever lose that opportunity
with his school peers. Although damages are theoretically possible in Charter cases,
generally a Charter claimant is entitled to only a declaration or damages for breach.

¶ 52 The record before me is rife with the effects of historic and continuing
discrimination against gays. I take into account on this leg of the injunctive test not only
the demonstrated harm to Mr. Hall but also the demonstrated compelling public interest
in the granting or refusing of the relief sought. "Public interest" in this regard includes
not only societal concerns but also the particular interests of the parties. I view this
approach as consistent with that taken by Sopinka and Cory, JJ. in RJR-MacDonald v.
Canada (supra) at page 344.

¶ 53 The evidence in this record clearly demonstrates the impact of stigmatization on
gay men in terms of denial of self, personal rejection, discrimination and exposure to
violence. In Ontario this stigma has been ameliorated by the inclusion of sexual
orientation in the Ontario Human Rights Code as a prohibited ground. The cultural and
social significance of a high school Prom is well-established. Being excluded from it
constitutes a serious and irreparable injury to Mr. Hall as well as a serious affront to his
dignity.

C. Balance of Convenience

¶ 54 This third branch of the injunctive test considers relative hardship between the
parties. My decision will finally determine whether in fact Mr. Hall goes to the Prom but
will not, as a matter of law, finally determine either whether he is entitled to trial
declaratory relief under the Charter or whether the defendants are entitled to continue to
permit same sex couples to attend only selected school social events in the future. The
focus at this stage of the injunctive test is on the balancing of risk of harm to the
defendants inherent in granting remedial relief to the plaintiff before the merits of this
dispute can be fully explored at trial - against the risk that the plaintiff's rights will be
significantly impaired while awaiting trial. In this case a serious constitutional issue is
involved, and as such the public interest is a special factor which I have considered in
assessing the balance of convenience. Manitoba v. Metropolitan Stores, [1987] 1 S.C.R.
110. I note that Mr. Hall first raised the Prom issue with his teacher about a year ago and
once he received a response from Principal Powers, he took reasonable steps to have the
matter Board reviewed. Once the Board made its decision, he took immediate legal
action.

¶ 55 It seems to me that the effect of an injunction on the defendants and on other
members of the Catholic faith community will be far less severe than the effect on Mr.
Hall and on lesbian and gay students generally if an injunction is not granted. An
injunction will not compel or restrain teachings within the school and will not restrain or
compel any change or alteration to Roman Catholic beliefs. It seeks to restrain conduct

and not beliefs. As such it does not impair the defendants' freedom of religion. Neither
the defendants nor any other Canadian need adjust their beliefs regarding lesbian women
and/or gay men as a consequence of the order sought.

¶ 56 However if the order is not granted, then until trial it will be acceptable for the
defendant school to restrict gay and lesbian students from selected school activities on the
basis of their demonstrated sexual orientation. I have already observed that the effects of
this sort of exclusion are pervasive, serious and contribute to an atmosphere of self
destructive behaviour among gay youth. The Board can always seek to have its ongoing
rights thoroughly protected at trial. Mr. Hall will have no other opportunity to attend his
Prom after tonight.

Generally

¶ 57 After a full consideration of the mandatory three stage test and of the collective
impact, my view is that an interlocutory injunction should issue. There is an obvious
tension between the individual's free expression and equality rights when contrasted
against the equality rights and the religious freedom of Catholic schools. In coming to
the decision that I have, I have considered that the Board is, in law, a religiously oriented
state actor and I have given respectful weight to the public interest in maintaining both
the denominational nature of education in Catholic schools and a respect for school
Principal decision-making authority.

¶ 58 Counsel for the plaintiff also urged me to consider the following issues on the
injunctive test:

(a) That there has been a breach of the Education Act:

A Catholic school is free to adapt documents issued by the Ministry
to its use in order to account for its denominational nature. This
submission is subsumed in the analysis under section 93.

(b) That there has been a breach of the Ontario Human Rights Code that
in turn represents a breach of the Education Act: Section 19(1) of
the Human Rights Code provides that that Code is not to be
construed so as to adversely affect any right or privilege respecting
separate schools enjoyed by separate school Boards or their
supporters under the Constitution Act, 1867 and the Education
Act. In any event, a civil action based on the violation of the Ontario
Human Rights Code is not permitted, nor is injunctive relief
available for a breach of the Code.
(c) That there has been a breach of fiduciary duty by the school: I am
not at all persuaded, in the limited time available to me to consider
it, that this concept has any application to the facts at bar.
(d) That there has been a breach of the plaintiff's freedoms of expression
and association contrary to sections 2(b) and (d) of the

Charter: Both parties in this case assert a multiplicity of reciprocal
section 2 rights. Having come to the conclusion that I have on the
section 15 issue, it is unnecessary for me to explore those matters at
this time. The defendant has the right to assert its own section 2 and
other affirmative defences. It will be for a trial for court to consider
both parties' arguable positions. However, for the reasons I have
given, the defendants' position on these matters is not determinative
of this motion.

Conclusion

¶ 59 The idea of equality speaks to the conscience of all humanity - the dignity and
worth that is due each human being. Mark Hall is a Roman Catholic Canadian trying to
be himself. He is gay. It is not an answer to his section 15 Charter rights, on these facts,
to deny him permission to attend his school's function with his classmates in order to
celebrate his high school career. It is not an answer to him, on these facts, to suggest that
he can exercise his freedom of disassociation and leave his school. He has not, in the
words of the Board, "decided to make his homosexuality a public issue". Given what I
have found to be a strong case for an unjustified section 15 breach, he took the only
rational and reasonable recourse available to him. He sought a legal ruling.

¶ 60 There are stark positions at each end of the spectrum on this issue. It is one of
the distinguishing strengths of Canada as a nation that we value tolerance and respect for
others. All of us have fundamental rights including expression, association and
religion. Sometimes, as in this case, our individual rights bump into those of our
neighbours and of our institutions. When that occurs we, as individuals and as
institutions, must acknowledge the duties that accompany our rights. Mr. Hall has a duty
to accord to others who do not share his orientation the respect that they, with their
religious values and beliefs, are due. Conversely, for the reasons I have given, the
Principal and the Board have a duty to accord to Mr. Hall the respect that he is due as he
attends the Prom with his date, his classmates and their dates.

Result

¶ 61 An interlocutory injunction will issue restraining the defendants and their agents
and all persons having knowledge of this order from preventing or impeding Mark Hall
from attending his high school Prom with his boyfriend on May 10, 2002. The
defendants have undertaken to the court not to cancel the Prom in the event that I granted
the plaintiff's request relief and I accordingly make no further order. The defendants
have also agreed that the plaintiff is not required to enter into the usual injunction
damages undertaking and accordingly none is ordered.

R. MacKINNON J.

QL Update: 20020516
cp/ln/s/qlrme/qlkjg

Hall V Powers

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