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Quebec's Mandatory Program Challenged: Loyola School Wins Battle for Religious Freedom

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Quebec's Mandatory Program Challenged: Loyola School Wins Battle for Religious Freedom

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JURIST Guest Columnist Diana Ginn of Schulich School of Law, Dalhousie University, discusses the debate surrounding the freedom of religion held by private and public schools in Canada with regards to curriculum...

In Loyola High School and John Zucci v. Attorney General of Quebec the Supreme Court of Canada addressed the issue of religious freedom in the context of teaching religion and ethics in a private Catholic school. In 2008 Quebec introduced an Ethics and Religious Culture (ERC) program, which it made mandatory in public schools. The program is taught from a secular perspective and is intended to "develop three competencies among students: the ability to understand 'religious culture'...[t]he ability to reflect on ethical questions; and the ability to engage in dialogue." The Minister of Education has the discretionary power to authorize equivalent courses in lieu of mandatory ones in private schools. Loyola High School applied for permission to replace the ERC curriculum with a course taught primarily from a Catholic perspective. The Minister refused to grant the exemption, and Loyola sought judicial review on the basis that the Minister's decision was an unreasonable restriction on freedom of religion. Loyola's position was clarified as the litigation proceeded: by the time the matter reached the Supreme Court, the school had committed to teach the doctrine of other world religions from a neutral stance but claimed the right to teach about the ethics of other religions, as well as about Catholicism, from a Catholic perspective. The Minister maintained that all aspects of the curriculum must be taught from a secular viewpoint. The Supreme Court found that the school's religious freedom had been unreasonably infringed, with the majority and minority disagreeing over whether all or only part of the Minister's decision failed the test of reasonableness.

The decision in Loyola provides a companion piece to S.L v. Commission scolaire des Chenes, where the court held that the mandatory nature of the ERC program did not infringe the religious freedom of public school parents who objected to the curriculum. Rather than concluding that a refusal to allow exemptions from the ERC course limited freedom of religion, and then inquiring whether this limitation was justifiable, the court in S.L. held that freedom of religion had not been limited in the first place. In reaching its conclusion in S.L., the Court placed significant weight on the state's duty of neutrality and commitment to multiculturalism.

Previously in these pages I argued that using principles of neutrality and multiculturalism "as the lens through which to determine whether freedom of religion has been infringed, rather than as a strong argument at the justification stage" risks diluting the constitutional protection of freedom of religion. In Loyola the court distinguished S.L. on the grounds that Loyola is a private Catholic school "created to support the collective practice of Catholicism and the transmission of the Catholic faith". Certainly this distinction is relevant, but the import of Loyola goes beyond this, remedying to some extent S.L's narrow approach to freedom of religion. Loyola marks a welcome return to earlier cases that defined religious freedom more broadly and is to be celebrated for its understanding of the secular multicultural state as including "respect for religious differences."

The Canadian Charter of Rights and Freedoms protects freedom of religion and conscience. However, even constitutionally-entrenched rights and freedoms are not absolute. If it is shown that legislation restricts a Charter right, section one of the Charter allows the government to try to persuade the court that the restriction is reasonable and "can be demonstrably justified in a free and democratic society." Where the Charter violation arises not from legislation but from an administrative decision (as in this case, with the Minister's refusal to grant an exemption), the test is whether the decision reasonably balances protection of Charter rights with the objectives of the legislation under which the decision-maker is acting. Thus,

[t]he reasonableness of the Minister's decision depends on whether it reflected a proportionate balance between the statutory mandate to grant exemptions only when a proposed alternative program is "equivalent" to the prescribed curriculum, based on the ERC's goals of promoting tolerance and respect for difference, and the religious freedom of the Loyola community who seek to offer and wish to receive a Catholic education.

The court in Loyola recognized that the state "has a legitimate interest in ensuring that students in all schools are capable, as adults, of conducting themselves with openness and respect as they confront cultural and religious difference" and that religious freedom does not automatically "trump core national values" such as "equality, human rights and democracy." However, the court also recognized that the Minister's statutory power to authorize alternative equivalent programs in private schools would be an empty promise of flexibility if the alternative program "had to be identical to the mandatory program in every way." The Minister's position that any departure from "strict neutrality" would fail to meet the government's goals (namely, to promote respect for others and diversity) was found to be unreasonable by the Supreme Court. Specifically, four of the seven justices who decided the case held that prohibiting Loyola from teaching about Catholicism from a Catholic viewpoint "had a serious impact on religious freedom" and did not fairly balance that freedom with the statutory scheme under which the Minister was acting. They accepted, however, that it was reasonable for the Minister to require Loyola to teach "the ethics of other religions in a neutral, historical and phenomenological way." The majority of the court set aside the Minister's decision and directed her to reconsider Loyola's application for an exemption.

The remaining three justices would have gone further. Characterizing Loyola's proposed approach as encompassing both a focus on Catholic doctrine and teachings and "a full and rich exploration of non-Christian religious beliefs, and ethical perspectives that do not mirror Catholic moral teachings", these justices held that the Minister of Education had erred in taking the "flawed" position that "only a cultural and non-denominational approach could serve as an equivalent" to the ERC program. In their view, religious freedom would be insufficiently protected by "merely grant[ing] an exemption for Loyola to teach Catholicism from a Catholic perspective, while requiring an unmodified curriculum and a neutral posture in all other aspects of the program." Treating other religious perspectives with respect-something Loyola had committed to do in its proposed program-did not require that these other viewpoints be presented as "equally legitimate and equally credible." They found that such a requirement would be "incompatible with religious freedom." Rather than remitting the matter to the Minister, the three justices writing the minority opinion would have ordered that Loyola be granted an exemption from the ERC program.

Given Loyola's commitment to teach about the beliefs of other religions from a neutral perspective, the court was divided only on the issue of whether the same approach was required for teaching about the ethical standpoint of other faiths. The majority held that requiring the school to teach the ethics of other religions "as objectively as possible does not seriously harm the values underlying religious freedom". The minority, however, was of the view that "[b]inding Loyola to a secular perspective at all times, other than during their discussion of the Catholic religion, offers scant protection for Loyola's freedom of religion, and would be unworkable in practice."

I prefer the minority's reasoning on this as it would be stifling and perhaps impossible for a school committed to teaching Catholic doctrine to present, for instance, the pro-choice arguments on abortion as having the same legitimacy as the Church's stance on the issue. However, it is possible that the majority and minority decisions are not poles apart, since the majority's phrase "as objectively as possible" does seem to provide some acknowledgement of the difficulty of attaining complete neutrality.

Taken as a whole, there is much to celebrate in the Supreme Court's handling of the issues in Loyola. Perhaps the most significant moment of the decision comes when Justice Abella, writing for the majority, states: "The pursuit of secular values means respecting the right to hold and manifest different religious beliefs. A secular state respects religious differences, it does not seek to extinguish them". This is an extraordinarily important point, distinguishing as it does between secularism and secularization, that is, distinguishing between the state avoiding favoritism among religions or as between religion and non-religion, and the state seeking to erase religion or at least profoundly privatize and marginalize it. The former stance is in accord with the Canadian constitution's protection for religious freedom-the latter is not.
Diana Ginn is a Professor at Dalhousie University's Schulich School of Law, where she focuses her research on issues involving law and religion, administrative law and property law. Prior to her academic career, Ginn conducted legal research for the Law Reform Commission of Nova Scotia and served as legislative counsel for the Government of the Northwest Territories.
Suggested Citation: Diana Ginn, Canadian Freedom of Religion Case , JURIST - Academic Commentary, June 15, 2015, http://jurist.org/academic/2015/diana-ginn-canadian-freedom-religion.php.

This article was prepared for publication by Cassandra Baubie, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org

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JURIST Guest Columnist Diana Ginn of Schulich School of Law, Dalhousie University, discusses the debate surrounding the freedom of religion held by private and public schools in Canada with regards to...

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Trinity Western University Supreme Court of Canada decision

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Trinity Western University Supreme Court of Canada decision

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On Friday, the Supreme Court of Canada released two decisions relating to the proposed law school at Trinity Western University namely Law Society of British Columbia v. Trinity Western University and Trinity Western University v. Law Society of Upper Canada.

There was extensive media coverage of the case and here are some recent articles:

Trinity Western loses fight for Christian law school as court rules limits on religious freedom 'reasonable' CBC

Court ruling puts pressure on Trinity Western University to change its community covenant - Vancouver Sun

Law societies can deny accreditation to B.C. evangelical university's law school graduates: Supreme Court - Globe and Mail

Advocates 'delighted,' school 'troubled' by Trinity Western court decision Toronto Star

The Supreme Court put out a good summary of the two cases which follow:

"Law Society of British Columbia v. Trinity Western University and Trinity Western University v. Law Society of Upper Canada

The Law Societies of British Columbia and Ontario had the power to deny approval to a proposed law school that would have required students to follow a religiously-based code of conduct restricting sexual behaviour, the Supreme Court has ruled.

Trinity Western University (TWU) is a private Christian university in Langley, British Columbia. It wants to open a law school. At TWU, all students and faculty have to follow a code of conduct (known as a "covenant") that prohibits sexual intimacy except within marriage between a man and a woman. Students and faculty must follow the covenant the whole time they attend or work at TWU, whether they are on or off campus.

The Law Society of British Columbia regulates lawyers in B.C., while the Law Society of Ontario (formerly known as the Law Society of Upper Canada) does the same in Ontario. Both Law Societies get their powers from the government. One of their roles is to protect the public interest in deciding who can practice law in those provinces. Usually, a person who wants to become a lawyer must have a degree from an approved law school.

TWU applied for approval of its proposed law school in both B.C. and Ontario. In B.C., the Law Society put the decision to a vote by its members (all lawyers already licensed to practice law there). A majority voted against TWU's proposal, and the Law Society passed a resolution to formalize the decision. In Ontario, the Law Society's "benchers" (board of directors) decided not to approve the proposal.

TWU and one of its graduates (who hoped to attend the law school) asked the courts to review the Law Societies' decisions in both provinces. They said that the decisions violated freedom of religion and other rights protected under the Charter. In B.C., the B.C. Supreme Court and Court of Appeal ruled for TWU and said that the Law Society's decision was invalid. In Ontario, the Divisional Court and Court of Appeal both ruled for the Law Society.

At the Supreme Court of Canada, the majority ruled for the Law Societies. Justices Rosalie Silberman Abella, Michael Moldaver, Andromache Karakatsanis, Richard Wagner (who was not yet Chief Justice when the cases were heard), and Clément Gascon wrote their reasons together. For them, the question the Court had to answer was whether the Law Societies' decisions not to approve TWU's proposed law school were reasonable. They said that they were. To be considered reasonable, the decisions had to strike a proportionate balance between the religious rights of the TWU community and the Law Societies' objectives to protect the public interest. For the majority, the "public interest" included promoting equality by ensuring equal access to the legal profession, supporting diversity within the bar, and preventing harm to LGBTQ law students. Neither Law Society was stopping someone from following his or her own religious beliefs (including following the covenant if s/he wanted to). They only prevented TWU from enforcing beliefs on other members of the law school community. Because of this, the majority said the decisions did not seriously limit anyone's religious freedoms. As the benefits of protecting the public interest were important, and the limitation on religious rights was minor, the majority said that both decisions reflected a proportionate balance, and were therefore reasonable.

Then-Chief Justice Beverley McLachlin agreed with the majority that the Law Societies' decisions were proportionate and reasonable. However, she disagreed with their approach. In her view, courts reviewing administrative decisions challenged under the Charter should first look at whether a Charter right (rather than a value) has been breached. If so, the state actor that made the decision has to show that the infringement is reasonable and justifiable in a free and democratic society. Unlike the majority, she considered the limitation on the religious, expressive, and associational rights of the TWU community to be serious. But, in addition to negative effects on diversity and equality within the legal profession, she emphasized that approving TWU's proposal would condone discrimination against LGBTQ people based on sexual orientation. The Law Societies' refusal to condone this discrimination was in keeping with their legal obligations to act in the public interest. In Chief Justice McLachlin's view, these obligations outweighed TWU's claims to freedom of religion.

Justice Malcolm Rowe agreed with the majority that the Law Societies' decisions were reasonable, but disagreed with both how and why they reached this conclusion. Like Chief Justice McLachlin and the dissent, Justice Rowe said that the analysis must focus on Charter rights (rather than Charter values). Like them, he also said that the state actor bears the burden of justifying any limit on those rights. In this case, however, Justice Rowe said the Law Societies' decisions did not infringe the Charter rights raised by TWU. The TWU community was not just seeking to protect its own beliefs and practices. It wanted the Law Societies to approve a law school where students would be forced to follow Evangelical Christian beliefs - whether they shared these beliefs or not. Justice Rowe said that freedom of religion protects the right to believe in whatever one chooses and to follow those beliefs. But it does not protect the right to impose those beliefs and practices on others. For this reason, he said that TWU's claim fell outside the scope of freedom of religion protected by the Charter.

Justices Suzanne Côté and Russell Brown disagreed with the other judges, and would have ruled for TWU. Writing in dissent, they said that the laws that gave the Law Societies their powers limited what they could consider in deciding whether to approve a law school. For them, the decision was only about whether graduates would be fit to practice law (i.e., competent and ethical). Since there was no evidence that the graduates would not be fit, they said the Law Societies should have approved TWU's proposal. In the dissenting justices' view, freedom of religion also protects the freedom to express religious views (for example, through the covenant) and to associate to study law in an educational community reflecting their religious beliefs. They disagreed with Chief Justice McLachlin that approving the proposal meant condoning discrimination. For them, a state actor (like a law society) accommodating a private actor (like a faith-based university) does not mean it supports the private actor's beliefs. If this were so, it would indirectly force private actors to follow the Charter (even though the Charter only applies to state actors). They noted that it is also in the public interest to accommodate different religious beliefs. They also noted that law societies in other provinces had approved TWU's proposed law school. For Justices Côté and Brown, the Law Societies' decisions seriously limited the religious freedom of members of the TWU community, and they were not justified.

While both the B.C. and Ontario cases had separate histories, they dealt with the same issue and were heard at the Supreme Court on the same days. In the end, eight judges agreed that the Law Societies' decisions limited religious freedoms (the five majority judges, Chief Justice McLachlin, and the two dissenting judges). However, five (the majority) said the limitation was not serious, while three (Chief Justice McLachlin and the two dissenting judges) said it was serious. Six of the eight judges who said there was a limitation said it was reasonable (the five majority judges and Chief Justice McLachlin). One judge (Justice Rowe) said no religious freedoms were infringed.

Cases in Brief are prepared by communications staff of the Supreme Court of Canada to help the public better understand Court decisions. They do not form part of the Court's reasons for judgment and are not for use in legal proceedings."

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Trinity Western University Supreme Court of Canada decision - CanadianCharityLaw.ca

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On Friday, the Supreme Court of Canada released two decisions relating to the proposed law school at Trinity Western University namely Law Society of

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Bill 21 goes against the right to freedom of religion

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Bill 21 offends the constitutional doctrine of neutrality to religion

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No government in Canada is empowered to enact legislation that mandates religion or irreligion as a precondition for participation in public life.

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Right to secular education trumps teachers’ right to religious freedom: parent group defends Bill 21

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A group of parents is backing Quebec’s religious symbols law in court, arguing their children’s right to a secular education trumps teachers’ right of religious freedom.

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Comment: In this picture, Canadians are furious of how the bill 21 is violating their right to freedom of religion as it is unconstitutional.

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This chart shows how religious Canadians are when compared to the France or the United Kingdom