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Zylberberg v. Sudbury Board of Education (1988), 52 DLR (4th) 577


Section 10(1) of Education Act gave ministers the power to set regulations for religious practices in the schools while providing exemptions for anyone not wanting to participate. Regulation 28 was established to prescribe prayer at the open and close of each school day (did not specifically require Christian readings). Three parents (Jewish, Muslim, agnostic) brought a 2(a) challenge. Parents did not request exemptions because they did not want them singled out.


Pressure or compulsion must be assessed from the point of view of the minority (contextual analysis).


*Conflicting Expert evidence: One expressed the view that pressure to conform may result in alienation for the children, another said no harm would be done
*Does Reg. 28 infringe 2(a)? YES:
**Law has a religious purpose – some boards will proscribe such readings
**Imposes Christian religious exercises in the schools
**What about the exemption? Must be assessed from the standpoint of members of the religious minorities
***Imposes a compulsion/burden to conform with majority practices, or seek an exception where they shouldn’t have to
***The effect of exemption is discrimination against other religions
**Inconsistent with multicultural nature of society as recognized in s.27
*Can S.1 justification be used? NO:
**Purpose of 28(1) is religious and exercises were intended to be religious.
**The exemption clause was included BECAUSE the regulation was religious
*Would 28(1) have been saved using S.1? NO:
**Less intrusive ways of imparting educational and moral values; education founded on multicultural traditions of society (Toronto board has a book of prayer and readings drawing from a number of distinct religious sources)
*Court strikes down the regulation instead of reading it down to be consistent with Toronto’s policy


Expert evidence – Some experts felt it was healthy for children to face the fact they are a minority.

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