Sep 15, 2015

Loyola v Quebec: Water in Loyola’s Wine and Freedom of Religion for Religious Organizations

Loyola High School v. Quebec (Attorney General), 2015 SCC 12 (CanLII)

Part I

Loyola High School v Quebec (Attorney General), 2015 SCC 12 [Loyola] involves a decision by Quebec’s Minister of Education, Recreation and Sport to deny Loyola High School (“Loyola”) an exception from a provincially-mandated course on world culture and religion. Loyola is a private English-language Catholic secondary school for boys, established by Jesuits in the 1840s.

Facts and Judicial History

As part of a decades-long secularization of its education system, the Government of Quebec replaced all remaining Catholic and Protestant religious courses with a mandatory Ethics and Religious Culture (“ERC”) program for the 2008–2009 school year. The program was strictly secular and required teachers to be objective and impartial in their instruction.

The ERC program became part of Quebec’s core curriculum and as such was compulsory. However, private schools were entitled to seek an exemption if they provided an equivalent alternative.

On March 30, 2008, five months before the course became mandatory, Loyola applied for an exemption. It claimed that the program was incompatible with its Catholic mission and convictions. It proposed an alternative program that discussed major world religions and ethical positions but had a Catholic doctrine as its normative core.

The Minister denied Loyola’s request for the exemption. She determined that its alternative program was faith-based as opposed to cultural, and this did meet the ERC Program’s objectives. Loyola brought an application for judicial review, arguing that the normative pluralism “underpinning the program violated freedom of religion because it was ‘incompatible with Loyola’s character as a Catholic institution'” (Loyola, para 29).

The application judge accepted this argument, concluding the Minister’s decision was incorrect and violated Loyola’s right to religious freedom. The Quebec Court of Appeal disagreed and overturned the decision. It concluded the ERC program did not interfere with religious freedom in any substantial way.

The Doré Framework

Justice Abella begins her analysis by setting out the Doré framework, outlined in Doré v Barreau du Québec, [2012] 1 SCR 395 [Doré], using academic literature produced since the decision’s release:

As Aharon Barak explained, the purpose of a constitutional right is the realization of its constitutional values… . In the Doré analysis, Charter values — those values that underpin each right and give it meaning — help determine the extent of any given infringement in the particular context and, correlatively, when limitations on the right are proportionate in light of the applicable statutory objectives… .

On judicial review, the task of the reviewing court applying the Doré framework is to assess whether the decision is reasonable because it reflects a proportionate balance between the Charter protections at stake and the relevant statutory mandate… . Reasonableness review is a contextual inquiry… . In the context of decisions that implicate the Charter, to be defensible, a decision must accord with the fundamental values protected by the Charter (Loyola, paras 36-37 [emphasis added]).

Justice Abella stresses the contextual aspect of the Doré framework. She notes that it responds to the diverse statutory and procedural contexts that decision makers operate within, and provides a degree of deference to the expertise the decision makers bring to the balancing exercise.

In applying Doré to Loyola’s request for an exemption, Justice Abella considered the statutory objectives of the regulation allowing for alternative programming for private schools. She found that in order to be consistent with these objectives, the Minister must consider the competencies the province wished to inculcate in students when it designed the ERC program. She determined these competencies to be flexible and thematic, allowing for significant variation in instruction, as long as the competencies were tied to the program’s goals: the recognition of others and the pursuit of the common good.

Bearing this in mind, the Minister’s task when deciding to grant an exemption was to balance the realization of the ERC program’s goals with respect for the Charter‘s protection of Loyola’s collective practice of Catholicism and the transmission of the Catholic faith.

By requiring that all aspects of Loyola’s alternative program be taught from a neutral perspective, including its instruction on Catholicism, the state was telling it how to teach the religion that “animates” it’s identity. This interferes with the rights of parents to transmit their faith to their children through communal institutions. As a result, the Minister’s decision limited freedom of religion more than necessary given the statutory objectives.

Despite this conclusion, Justice Abella did not fully endorse Loyola’s alternative program. The program wished to teach other ethical frameworks from the “lens” of Catholic ethics and morality. It was determined that this would transform the ethics component from a study of different ethical approaches to a study of Catholicism. This would delegitimize the other religions in a way that was contrary to the goals of the program. It was determined that requiring Loyola’s teachers to discuss other religion’s ethics in an objective way would not be a serious interference with their freedom of religion.

As a result, she allowed the appeal and remitted the matter to the Minister for reconsideration.

Conclusion

By requiring Loyola to teach the ethics of religions other than Catholicism in a neutral and objective way, Loyola was forced to take some water in their wine. As a result, the decision functions more as a helpful rearticulation of the Doré framework than an strong endorsement of freedom of religion in private educational institutions.

Part II

The central difference between the majority judgment and the judgment of McLachlin and Moldaver is the treatment of Loyola’s argument that, as a religious organization, the school itself was entitled to religious freedom under section 2(a) of the Charter. While the majority avoided the issue, finding it was not necessary to dispose of the appeal, McLachlin and Moldaver answered it directly. They found religion’s communal character means that protecting individuals’ religious freedom requires protecting the religious freedom of religious institutions, including religious educational bodies such as Loyola.

Freedom of Religion for “Religious” Corporations

McLachlin C.J. and Moldaver J. support their view that corporations may be entitled to religious freedom with a laundry list of domestic and international caselaw and human rights documents that discuss the communal nature of religious belief. For example, Syndicat Northcrest v Amselem, [2004] 2 SCR 551 [Amselem], states that the freedom religion must “protect” religious institutions and permit “collective development of belief”; Alberta v Hutterian Brethren of Wilson Colony, [2009] 2 SCR 567, states that religion is about “religious relationships” and the “maintenance of communities of faith”; and article 18 of the Universal Declaration of Human Rights states that everyone has the rights to freedom of religion in “community with others” and to “manifest his religion or belief in teaching.”

At paragraphs 94 and 95, they conclude:

The individual and collective aspects of religion are indissolubly intertwined. The freedom of religion of individuals cannot flourish without freedom of religion for the organizations through which individuals express their religious practices and through which they transmit their faith.

In this respect, the guarantee of freedom of religion resembles the guarantees of freedom of expression, freedom from unreasonable search and seizure and trial within a reasonable time, all of which have been held to apply to corporations…

Freedom of religion is not to be provided to all corporations. In order to receive section 2(a) protection, an organization must meet two requirements. First, it must be constituted primarily for religious purposes. Second, its operation must accord with these religious purposes. While McLachlin C.J. and Moldaver J. note that the scope of these requirements will likely require clarification in future cases, they are certain that Loyola, as a non-profit religious corporation offering Jesuit education for Quebec’s Catholic community, falls into their ambit.

The ERC Program, Loyola, and the Freedom of Religion

After finding that Loyola was entitled to 2(a) protection, McLachlin C.J. and Moldaver J. moved on to determine whether Loyola’s freedom was infringed by the Minister’s decision, and if so, whether the infringement was more than reasonably necessary to achieve the goals of the ERC Program.

In determining whether Loyola’s freedom was infringed, the justices adapted the two-part test from Amselem and Multani v Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256, to apply to an organization:

(1) Is Loyola’s claimed belief that it must teach ethics and its own religion from the Catholic perspective consistent with its organizational purpose and operation?; and (2) Does the Minister’s decision to deny Loyola an exemption from the ERC Program interfere with Loyola’s ability to act in accordance with this belief in a manner that is more than trivial or insubstantial?

Both questions were answered in the affirmative using the “extensive findings of fact” by the application judge. For question one, senior officials at Loyola provided evidence that they were convinced that to accomplish its goals as a Catholic education institution, Loyola must teach an ethics and religion course according to the precepts of the Catholic religion. For question two, the ERC Program was determined to be incompatible with Catholic education and that, by teaching it, Loyola would violate “fundamental and mandatory” tenants of the Catholic Church.

When determining whether the infringement was more than reasonably necessary to achieve the goals of the ERC Program, McLachlin and Moldaver found that the Minister erred in finding that only a cultural and non-denominational approach could serve as equivalent to the ERC Program. While they noted that there are justifiable limitations to the religious freedoms of private schools, in this instance they found the Minister’s definition did not allow schools to develop a “meaningfully individualized approach”.

McLachlin and Moldaver ordered the Minister to grant Loyola’s exemption from the ERC Program and offer an equivalent course based on the school’s previous proposal.

Conclusion

Although the majority did not find that Loyola was entitled to section 2(a) protection, it did not rule it out. It seems likely that the issue of religious freedom for organizations will be litigated again, and when it does, Chief Justice McLachlin and Justice Moldaver’s Loyola concurrence will be very persuasive.