Moral and Legal Rights and Obligations of Catholics Regarding Harmful Sex Education

I continue to receive complaints and questions about the grave problems with the Ontario Liberal government’s Ministry of Education new revised Health & Physical Education (HPE) curriculum (which includes sex and same-sex education) that they plan to implement in September 2015 and the existing Ontario Bishops’ Fully Alive sex-education curriculum.

Some links to the new HPE sex-ed curriculum

http://news.ontario.ca/edu/en/2015/02/ontario-releases-updated-health-physical-education-curriculum-parent-resources.html

A Parent Guide: Learn More About Human Development and Sexual Health in the Health and Physical Education Curriculum, Grades 7-12

http://www.edu.gov.on.ca/eng/curriculum/elementary/health1to8.pdf

Canadian Guidelines for Sexual Health Education

For decades the Ministry has had guidelines for HPE courses that includes a sex-education component, but this revised curriculum is much worse.

You can see that there are things in these curriculum guidelines that are morally permissible including physical fitness, “Healthy Eating” etc. The sex-ed (“Human Development and Sexual Health”) content is problematic.

HPE courses are required in elementary school. In secondary school, one credit in this subject area is necessary in order to obtain a high school diploma. After one high school credit, which could be enough to seriously harm a teenager, this course is an optional subject.

Morally Offensive sex-ed Curriculum

Parts of the new HPE curriculum are more dangerous and morally offensive. For example, the teaching of the false ideology of gender fluidity is false and harmful. God made us to be and we are born and will remain in only one of two genders, either male or female.

Yoga (part of the Hindu religious practise) is taught as part of the curriculum. The Vatican and others, including exorcists, have warned against the practice of Yoga exercise as an entry-way into the occult and the New Age.

http://everydayforlifecanada.blogspot.ca/2015/06/when-it-comes-to-sex-education-parents.html

Campaign Life Coalition Exposes and Objects to sex-ed Curriculum

A pamphlet produced by Campaign Life Coalition entitled “Ontario’s Health and Physical Education HPE Curriculum 2015” lists problems with the ministry curriculum including it: usurps parental rights as primary educators of their children; attacks and undermines childhood as a time of growth and development; is age-inappropriate; terms are false, inadequate and biased; advocates a mechanical view of sex without any moral content; introduces concepts at too early an age; creates family conflict, alienates children from their families; scripts of teacher-student prompts are “gay” propaganda; calls or self-censorship of teachers etc. 

Catholic Civil Rights League Objects to sex-ed Curriculum

The Catholic Civil Rights league objects to aspect of the Ontario curriculum:

https://ccrl.ca/2015/02/ontariosexedcurriculum/ 

Lifesitenews Reports on Protests to sex-ed Curriculum

Lifesitenews has been covering this problem in many articles. There have been parental and other petitions against it.

A massive protest took place with many groups and individuals from a wide variety of faiths and cultures including Parents as First Educators who are opposed to this abusive curriculum:

https://www.lifesitenews.com/news/sex-ed-protest-in-toronto-on-june-7-hopes-to-draw-10000

There was also a protest in Ottawa to have funding allocated towards the schooling of parental guardian’s choice, including homeschooling.

REAL Women of Canada Objects to sex-ed Curriculum

Real Women of Canada has made the following press releases:

http://www.realwomenofcanada.ca/to-the-editor-real-women-response-to-the-sex-ed-update-ontario-badly-needs-martin-cohn-feb-22-2015/

http://www.realwomenofcanada.ca/ontario-sex-education-curriculum/

http://www.realwomenofcanada.ca/wynne-and-sandals-have-lied-to-the-public-re-ontario-sex-education-program/

Legal Rights

I consulted Catholic civil lawyer, Gwen Landolt, who also prepared the following statement:

Constitutional Position of Catholic School Boards in Regard to the Ontario Sex-Education Curriculum

Gwendolyn Landolt June 29, 2015
National Vice-President
REAL Women of Canada

I have now had the opportunity to review all the relevant material on this critical issue of the proposed Ontario sex-education curriculum.  My conclusions are as follows:

1.  I would be hesitant to accept any conclusion that only the Catholic School Boards have the sole decision-making authority on the sex education curriculum.  Rather, it seems, there are other members of the Catholic establishment who would also be involved in such a decision.  This would include the Institute for Catholic Education (ICE), Bishops, Directors of Education, Superintendents, as well as the Catholic School Trustees.  Also, in 2014, a controversial Divisional Court case Erazo v. Dufferin-Peel Catholic District School Board provided relief to a family, who wished to withdraw their children from religious studies, Mass and religious retreats at a Catholic high school in Brampton.  This decision relates to the exemption of non-Catholic students attending Catholic Schools as provided by the Education Act. The Education Act also, however, describes schools as “communities”. All children are part of this Catholic “community” and are expected to participate in the life of the community, including in the school’s curriculum, provided always that the school’s curriculum is based on a Catholic perspective.       If the curriculum in the Catholic Schools fails to provide a Catholic perspective, then Catholic parents have the right to withdraw their children from the curriculum, and to challenge the curriculum’s acceptance in the Catholic school.

This right was apparent in Daly et al v. Attorney General of Ontario (1999) when individual separate school supporters, together with the trustees, brought an application before the Ontario Court of Appeal. In its Judgment, the Court refers to the aim of a Catholic school as being the creation of a community of believers with a distinct sense of the Catholic culture.

2.  Both Premier Wynne and Education Minister Sandals have also indicated that parents can withdraw their children from aspects of the program they found problematic. It is significant, however, that the latter have stated that some aspects of the new curriculum cannot be opted out, since they deal with human rights issues and equality, such as homosexual rights, same-sex families, etc.  In other words, they claim, children cannot be exempted from these so-called aspects of the curriculum, i.e. human rights provisions (National Post, February 23, 2015).   In this context, Catholic boards have played a “wait and see” approach.

3.  It would appear, however, that the statements by the provincial officials prohibiting the withdrawal of children on some human rights matters, are in conflict with the constitutional right of Catholic schools. This is because defining an issue as a “human right” does not mean that these issues must be accepted by the Catholic Boards, if they are in conflict with Catholic teachings and offend its “distinct sense of the Catholic culture”.

4.  The Ontario Education Act was amended in 2006 (when Kathleen Wynne was the Minister of Education) to provide that the Minister may establish policies, guidelines and standards with respect to equivalent learning and require boards to develop and offer equivalent learning opportunities to their pupils.

This section also goes on to provide that the Minister may designate . . . programs, courses of study or other activities that are approved for the purpose of equivalent learning.

This provision appears to give extensive jurisdiction to the Minister as to whether a course is “equivalent” or not to that which was provided by the Ministry.  In other words, any sex education course developed by the Catholic School Boards could be subject to the approval of the Minister.

5.  This latter provision appears to conflict with Sections 1(4) and 1(4.1) of the Education Act which provides that the Education Act cannot adversely affect any right or privilege guaranteed by Section 93 of the Constitution Act (1867) which provides as follows:

93. 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;

(2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec;

(3) Where in any Province a System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education;

(4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section.

Further, Section 29 of the Charter of Rights provides that there can be no abrogation or derogation from any rights or privileges guaranteed under the Constitution of Canada in respect of “denominational, separate or dissentient schools”.

The recent Loyola High School v. Quebec (Attorney General) 2015 decision of the Supreme Court of Canada dealt with a similar issue of ministerial approval of an “equivalent” program from a Catholic high school, in respect of the implementation of the Quebec Ethics and Religious Culture curriculum.  That case stands for the proposition that a private Catholic school retains the right to teach its own faith from its own Catholic perspective, rather than some purported “neutral” perspective, in accordance with the freedom of religion provisions in the Charter of Rights.  This decision relates to a private Catholic School, but the principle is the same in regard to public funded Catholic Schools, in regard to freedom of religion, and is consistent with and confirms denominational rights pursuant to S.93 of the Constitution Act (1867).

Consequently, I would be of the opinion that the Catholic Schools can not be compelled to implement the Ontario sex education curriculum.

It is noted that this conclusion is contrary to the opinion dated June 2, 2015, provided by the lawyer, Nadya Tymochenko, of the law firm of Miller Thomson directed to the Halton Catholic District School Board.  In this latter opinion, Ms. Tymochenko stated that the Minister of Education, pursuant to Section 230(a) of the Education Act could issue a Directive to the Catholic Board to comply with the sex education program and, if failing to do so, this could result in a “an Order of Cabinet vesting control of the school board in the Ministry of Education”.

I would strongly disagree with this latter conclusion for the constitutional reasons stated above, as well as for the problem that would arise should the Ministry try to do so, as this would give rise to perceived intolerance and religious insensitivity.

The opinion of Ms. Tymochenko which was directed to the Halton Catholic District School Board, also concluded inter alia that parents need only be “consulted”, but cannot be a part of the decision on the sex-education curriculum.

In view of these questionable conclusions by Ms. Tymochenko, I would recommend that the Ontario Bishops obtain an opinion from independent legal counsel on these matters.

Conclusion

It would be my opinion that the Catholic School Boards are not required under the Constitution to implement those parts of the Physical Education & Health (which includes sex-education) curriculum that are contrary to Catholic teachings.

If the Ministry of Education should try to force the issue (which I very much doubt it would do), the Catholic authorities could protect themselves by way of seeking an injunction, or, interestingly enough, follow the two-step remedial procedure provided in Section 93 of the Constitution Act 1867 which is as follows:

(a)  Appealing this decision to the Ontario Cabinet (Governor General in Council); and

(b)  If the Cabinet does not duly execute the provisions of Section 93 of the Constitution Act 1867, then the matter be referred to the Parliament of Canada to make remedial laws for the execution of Section 93 of the Constitution Act 1867.

It is doubtful, however, that a federal cabinet would want to be drawn into such a controversial issue.

As stated above, however, I very much believe it would not come to this.  The Catholic Boards hold a very strong position under Constitutional Law.

Gwendolyn Landolt
National Vice-President
REAL Women of Canada

http://www.realwomenofcanada.ca/constitutional-position-of-catholic-school-board-in-regard-to-the-ontario-sex-education-curriculum/

Opinions of Catholic Civil Lawyer, Geoff Cauchi

I also consulted a Catholic civil lawyer, Geoff Cauchi, who gave the following five comments from a secular and legal perspective:

  1. “The Denominational Rights belong to a ‘Class of persons’, being all of the Catholic Electors in each board, collectively.    These rights may be asserted and/or defended by the Trustees, on behalf of the Class of Persons.  The Catholic Bishop is only one of the Catholic Electors, presuming that he is registered as one.     In my opinion, the Denominational Rights could also be asserted by any single Catholic Elector, or group of them, in legal proceedings in a court of law.”
  1. “A Bishop has no secular authority whatsoever in this process.    All he can do is advise the Trustees on what they should do, if anything, to adapt the curriculum as written by the Ministry to make it consistent with Catholic teaching.    ICE, similarly, has no authority at all in this process.    It could provide advice to the individual Boards, but each Board has the sole decision-making authority and responsibility on this, and can accept or reject its advice.”
  1. “A single Catholic Elector, including a Catholic Bishop, has no legal status under the Education Act to implement curriculum in schools governed by the Education Act.    Only School Boards have that authority.    That said, a single Catholic Elector, including a Bishop, could commence a legal action for a declaration by a court that the Ministry of Education does not have the constitutional authority to prevent a Catholic School board from adapting a prescribed curriculum to make it consistent with Catholic teaching.”
  1. “All of the Bishops’ ‘rights’ and obligations are limited to those in the Code of Canon Law.    The Bishop has the right and duty to oversee all Catholic schools to make sure they are authentically Catholic, but this has nothing to do with the civil law.”
  1. “When the curriculum was announced, I would have preferred to see the Bishops stand up in public and correctly state the civil law obligation of the Trustees to assert and defend the Denominational Rights of all Catholic Electors, and then tell the Trustees that they also had a moral duty, as Catholics, to do so.”

According to Canon Law

As a Catholic Canon lawyer, I will note below Church laws governing Catholic education and schools that are given in Canons 793-806.

Catholic schools were established to be Catholic and must be faithful to Catholic teachings. We need to provide and restore faithful Catholic Education and courses.

Catholic Bishops, Schools Boards, Trustees, teachers and parents all have serious moral obligations to be faithful to Catholic teachings.

In Catholic schools, Catholic teachers are required to teach the Catholic faith and are not to teach anything against the Catholic faith. This often depends on what they are advised to do by their bishop, board and trustees and how well a Catholic teacher knows and teaches only content that is in accordance with Catholic teachings.

Of signal importance is Canon 804.2 which states “The local ordinary is to be careful that those who are appointed as teachers of religion in schools, even non-Catholic ones, are outstanding in true doctrine, in the witness of their Christian life and in their teaching ability.”

In Canon 805, we are told that in his own diocese the local ordinary has the right to appoint or to approve teachers of religion and, if religion or moral considerations require it, to remove them or to demand that they be removed. Teachers who are not faithful in their religious practice should be removed. There should be no compromise in this matter.

Religion should certainly be the primary subject in Catholic schools.

All teaching should be in accord with the Catholic Catechism. Bishops can state and advise that the new curriculum is not in line with Catholic teachings and cannot be implemented, as it is, in Catholic schools. Bishops sometimes make mistakes.

As it is, if the revised Ministry of Education curriculum is not stopped or rejected, for Catholic schools/boards/teachers, it must be “adapted” or only parts could be implemented in adherence to Catholic teaching. Basically, all of the parts that are immoral and that don’t comply with Church guidelines would have to be omitted or strictly adapted to reflect and in line with only Catholic teaching.

The minutes from the Archdiocesan clergy meeting recorded that only a small percentage of the new curriculum would be implemented since most of it is morally offensive to religious persons.

Catholic school boards and trustees must not follow advice and implement subject matter if it goes against Catholic teachings. For Catholic elementary schools, adding anything to the existing Fully Alive program will not correct this flawed approach and program.

The group appointed by the bishops to prepare their recommendations to school boards regarding adapting the new sex ed curriculum, ICE, has a sad track record of providing the inappropriate and harmful Fully Alive program.

https://catholicintelligenceblog.wordpress.com

I continue to recommend that the “Fully Alive” family life (sex) education program currently used in Ontario Catholic elementary schools be removed since it is harmful and not faithful to Church guidelines, by teaching explicit sexual information to children before puberty. As another Canadian bishop once stated: All that is necessary can be taught in the context of the Sixth and Ninth Commandments with formation and teaching in the virtues of chastity and modesty and the means of grace through the solid Faith and Life religion series and are treated magnificently in the second and third parts of the Catechism of the Catholic Church. The proper authority in the area of family life education should be with the parents.

Please see my previous postings in 2015 and earlier for detailed letters and information on what is wrong with Fully Alive and how it is not in accordance with the Church’s guidelines on family life education.

https://msgrfoy.com/2015/06/03/letter-to-cardinal-on-fully-alive-program-march-30-2015/

https://msgrfoy.com/2015/03/12/updated-comments-on-sex-education-march-12-2015/

Conclusion

The moral and legal rights of the Catholic Church, schools, parents, teachers and students to uphold the Catholic faith must be defended and protected by the Church, Bishops, Catholic school boards, trustees, government, parents and students. The government’s Ministry of Education cannot force Catholic school boards and teachers to teach any immoral course content related to a false concept of human rights.

Rev. Msgr. Vincent Foy, PH, JCD

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