Court dismisses charter challenge against Ontario sex-ed curriculum
Allison Jones, The Canadian Press
Published Thursday, February 28, 2019 11:53AM EST
Last Updated Thursday, February 28, 2019 3:15PM EST
TORONTO -- An Ontario court dismissed a challenge Thursday from elementary teachers and a civil liberties group over the Progressive Conservative government's repeal of a modernized sex-ed curriculum.
The challenge from the Elementary Teachers' Federation of Ontario and the Canadian Civil Liberties Association argued that changes made by the government infringed teachers' freedom of expression and put students at risk by failing to be inclusive.
The Tories repealed a 2015 curriculum from the previous Liberal government that included lessons warning about online bullying and sexting, as well as parts addressing same-sex relationships and gender identity.
A Divisional Court ruling released Thursday said that it is the role of elected officials, not the courts, to make legislation and policy decisions.
Government lawyers said teachers were allowed to go beyond what is in the new curriculum, the court noted, and there was no evidence of a teacher being disciplined for doing that. Schools are currently using an interim curriculum based on a version from 1998.
"Nothing in the (interim) curriculum prohibits a teacher from teaching any of the topics in question, which include: consent, use of proper names to describe body parts, gender identity and sexual orientation, online behaviour and cyberbullying, sexually transmitted diseases and infections," the three-judge panel wrote.
ETFO's lawyer had said there might not have been a legal challenge if Premier Doug Ford hadn't also issued a warning to teachers who said they would continue to use the now-scrapped version of the curriculum.
Some of the public statements made were "ill-considered," the court said, but did not constitute an infringement of the charter. There was no evidence of a teacher being disciplined for referring to the repealed curriculum, the court wrote.
ETFO framed the ruling as a win for teachers because it affirmed their professional judgment rights.
"The government's explicit concession on this point in court makes this case a victory for ETFO and others," president Sam Hammond said in a statement. "I have no doubt that such a concession would never have occurred without litigation."
Education Minister Lisa Thompson said after getting feedback from public consultations on the health and physical education curriculum, a new one will be ready for the fall.
"I think it's going to be safe to say that there were opportunities to introduce even more realities in terms of what students face today," Thompson said. "Cyberbullying, consent, human trafficking -- those are all issues that we have heard through our consultation that parents want to be addressed."
The Liberal curriculum included lessons on cyberbullying and consent.
Thompson would not say specifically if gender identity would be part of the new curriculum.
The Canadian Civil Liberties Association -- who brought their challenge with Becky McFarlane, described as a queer mother, and her daughter -- had argued that repealing the updated curriculum discriminated against the LGBTQ community.
"It's a crummy day for equality," said CCLA executive director and former Liberal attorney general Michael Bryant. "The government should not be able to eliminate a population in a curriculum or otherwise with the stroke of a pen without a very good justification. They haven't provided that justification to date."
Bryant said the CCLA will seek leave to appeal.
The court said that the applicants all made thoughtful and carefully articulated policy arguments, but there was no empirical evidence before the court of any harm caused by the interim curriculum.
Green party Leader Mike Schreiner said regardless of the decision the government must have a sex-ed curriculum that creates safe spaces for all students.
"It may be dismissed by the courts but the court of public opinion is still supportive of making sure every student in our schools, regardless of their gender identity, is supported," he said.