Focus On

Ruling takes wider view on faith freedom

Thursday, April 02, 2015 @ 8:00 PM | By Cristin Schmitz

Lawyers predict the Supreme Court’s rejection of Quebec’s narrow formulation of religious freedom in education will reverberate in other cases, including perhaps Trinity Western University’s litigation to create Canada’s first evangelical Christian law school.

The March 19 ruling in Loyola High School v. Quebec (Attorney General) [2015] S.C.J. No. 12, under reserve for a year, amounts to a qualified victory for the appellant Loyola, a Jesuit-run high school in Montreal.

Reversing the Quebec Court of Appeal below, the top court ruled 7-0 that, as part of a provincially-mandated course on the culture of world religions and ethics, the boys’ school can teach Catholic doctrine and Catholic ethics from a Catholic perspective.

However, the judges split 4-3 to hold that Loyola must teach about the ethics of other religions from a neutral perspective.

“I see no significant impairment of freedom of religion in requiring Loyola to offer a course that explains the beliefs, ethics and practices of other religions in as objective and neutral a way as possible, rather than from the Catholic perspective,” Justice Rosalie Abella held for majority judges Louis LeBel, Thomas Cromwell and Andromache Karakatsanis.

In their partial concurrence, Chief Justice Beverley McLachlin and Justices Marshall Rothstein and Michael Moldaver endorsed Loyola’s contrary position that the school’s religious freedom encompasses the right to teach the ethics of world religions from a Catholic perspective, albeit while presenting all positions to students.

The majority went on to set aside as “unreasonable” a 2008 decision by Quebec’s education minister that required all aspects of Loyola’s proposed religious cultures and ethics course to be taught from a neutral and secular perspective, including the teachings of Catholicism. Justice Abella held that the minister’s blanket requirement of neutrality limited the religious freedom of members of the Loyola community more than was necessary in light of the government’s objectives for mandating the teaching of religious culture and ethics.

“In my view prescribing to Loyola how it is to explain Catholicism to its students seriously interferes with freedom of religion, while representing no significant benefit” to the state’s objectives of recognizing others and pursuing the common good, Justice Abella held. “In a context like Quebec’s, where private denominational schools are legal, this represents a disproportionate, and therefore unreasonable, interference with the values underlying freedom of religion of those individuals who seek to offer and who wish to receive a Catholic education at Loyola.” Justice Abella sent the matter back to the education minister to reconsider.

The Charter’s s. 2(a) guarantee of freedom of religion would have been seriously weakened if Quebec’s narrow view had prevailed, said Albertos Polizogopoulos of Ottawa law firm Vincent Dagenais Gibson.

“You can’t be a Catholic school if you’re not teaching a Catholic position,” said Polizogopoulos, co-counsel with Don Hutchinson for the intervener Evangelical Fellowship of Canada.

Polizogopoulos said the three-judge concurrence in Loyola marks the first time that judges of the highest court have affirmed that legal entities such as religious organizations, schools, churches and charities are protected by freedom of religion (the majority, however, declined to decide this point).

All seven judges also agreed that “freedom of religion applies not only to individuals, but to groups and communities,” Polizogopoulos added.

The court’s strong affirmation, in several statements, of freedom of religion’s communal aspect will assist Trinity Western University, said Rob Staley of Toronto’s Bennett Jones, a co-counsel for the Catholic Civil Rights League and several other faith groups who intervened in Loyola. “There is helpful language in there that would assist TWU in its various battles with various law societies,” said Staley, who represents the Langley, B.C., private university in its judicial review application challenging Law Society of Upper Canada benchers’ decision not to accredit the proposed law school.

“In the Ontario law society, they basically said we are going to give no protection to the rights of religious freedom because we disagree with your view on certain issues of the [TWU] community covenant [banning same-sex sexual relations]. You can’t reconcile that with what you see in Loyola.”

Université de Montréal law professor Paul Daly said Loyola does not, however, hold a “magic key” to determining the outcome of the TWU case that has divided the legal profession.

“The situation is different because it is a clash of competing Charter rights — a clash between [TWU’s] freedom of religion and freedom of religious association, and the right of equality, because there is discrimination against gays and others in the community covenant that TWU subscribes to,” Daly said. “And the task for the law society is to strike a balance between these competing values.

“Indeed, Justice Abella says that when you are talking about the infringement of a right in the context of a discretionary decision, what matters are Charter values — so that suggests that a balancing exercise conducted by the law societies should not be lightly interfered with.”

He pointed out that law societies must also regulate in “the public interest” which gives them broader discretion than the education minister had in the Loyola case.

Ian Moes of Kuhn LLP in Abbotsford, B.C., co-counsel with Andre Schutten for the intervener Association of Christian Educators and Schools Canada, said the court upheld parental rights. “It recognized that the right to teach children religious beliefs, and share with them religious practices, is as much an aspect of religious practice as going to church.”

Counsel for Loyola and the Quebec government could not be reached at press time.

At the Supreme Court the judges differed not only over the scope of religious freedom at issue, but also took different analytical approaches to reviewing the government’s actions and the remedy they granted.

Loyola had applied for judicial review of the education minister’s refusal to recognize an alternative world religions and ethics program, proposed by Loyola, as a suitable alternative to the province’s own generic program. A provincial regulation permits the minister to grant such an exemption when he or she deems the programs to be functionally equivalent.

The majority followed the framework set out in Justice Abella’s decision in Doré v. Barreau du Québec [2012] S.C.J. No. 12, for reviewing discretionary administrative decisions that engage Charter protections.

Under that approach, the “reasonableness” of the minister’s insistence that Loyola’s “equivalent” course be purely secular and neutral depended on whether the decision reflected a proportionate balance between the state’s objectives of promoting tolerance and respect for differences, and the Loyola community’s religious freedom.

Following instead the Oakes framework for Charter analysis, the minority held that Loyola’s s. 2(a) freedom of religion, as a religious organization, was substantially breached by the minister’s decision. Moreover, the breach could not be upheld under s. 1 of the Charter because it limited religious freedom more than reasonably necessary to achieve the goals of the program. Under s. 24 (1) of the Charter, the minority would have ordered the government to grant Loyola an exemption permitting the school to teach its own proposed religion and ethics program, in line with guidelines set out by the minority.