A Port Alberni mother has lost her appeal in a case where she argued that an Indigenous smudging ceremony violated her children’s religious freedoms, and and will now have to pay the full legal costs for the court cases.
The B.C. Court of Appeal dismissed the petition brought forward by Candice Servatius from Port Alberni, who lost a B.C. Supreme Court Case back in 2020 against School District 70 (Pacific Rim).
Servatius sued the school district after two Indigenous cultural practices took place at John Howitt Elementary School in 2015 and 2016. The first was a Nuu-chah-nulth smudging demonstration, and the second was a hoop dancing performance where the dancer said a prayer. Servatius, an evangelical Protestant, said that her religious freedom was violated and alleged that “her children were forced to participate in a religious ceremony” in the school.
On Dec. 12, 2022, appeal court Justice Susan Griffin upheld the Supreme Court’s initial ruling that the demonstrations were not religious ceremonies, but an educational opportunity for the students, and that students were not forced to participate.
“Neither event breached the appellant’s freedom of religion or the duty of state neutrality,” the court ruled. “The trial judge did not make an error in his findings of fact that the children did not participate in the smudging or the prayer and the school did not promote or favour a set of beliefs.”
The Supreme Court originally ordered both Servatius and the school district to pay their own court fees, after Servatius argued that she and her family were “of limited means” and the school district had a “superior capacity” to pay costs.
However, a cross appeal from the school district revealed that Servatius’ complaint was actually funded by the Calgary-based Justice Centre for Constitutional Freedoms (JCCF).
“In my view, had the judge known this fact he would not have exercised his costs discretion in the way he did,” said Griffin in her judgment. “He was clearly influenced by the misleading assertions about Ms. Servatius’s capability of weathering the burden of paying a costs award.”
Servatius has now been ordered to pay for the school district’s court costs, as well as her own.
Judith Sayers, president of the Nuu-chah-nulth Tribal Council, released a statement on Dec. 12 that she is happy with the ruling, although disappointed that Nuu-chah-nulth people have had to go all the way to the B.C. Court of Appeal over the issue.
“I am 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 and that it was not religious ceremony,” said Sayers. “We told the court that we do not have a religion, we have spirituality and some of it we can share in public and some is very private. The smudging demonstration was something we could share publicly.”
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